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On December 15, 2009, the Good Government Act, 2009 received royal assent. This statute amended or repealed over 300 pieces of legislation, ranging from the Accumulations Act to the Off-Road Vehicles Act. There are various amendments that should be of particular interest to those of us who practice estate, capacity and trust litigation.

The Crown Administration of Estates Act is amended by adding a new section 5.1, dealing with the enforceability of compensation agreements. A “compensation agreement” is defined to mean an agreement with an heir of an estate that provides for compensation, directly or indirectly, to one or more persons or entities on the location, recovery or distribution of any interest in the estate to which the heir may be entitled. In cases of estates administered by the Public Guardian and Trustee, there must be fair disclosure before a possible heir is asked to sign a compensation agreement. In addition, there is a cap on compensation of 10 per cent of the value of the possible heir’s interest in the estate. Click here for the complete text of the Act.

The Health Care Consent Act, 1996 is amended to increase the time allowed, from two days to four days, for the Consent and Capacity Board to issue written reasons for decisions. In addition, the Act is amended to allow the Board to direct Legal Aid Ontario (instead of the Public Guardian and Trustee or the Office of the Children’s Lawyer) to arrange for legal representation for a person who may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service. Click here for the complete text of this Act.

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

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One form of Advance Directive is the Do Not Resuscitate Order, commonly referred to as a DNR Order, or simply a DNR. It is a written order, signed by a medical professional, indicating one’s desire that lifesaving measures not be initiated if one were to stop breathing or if one’s heart has stopped. A DNR Order is generally only put in place when a person is suffering from a serious, often terminal condition, and when ‘CPR will almost certainly not benefit the patient and is not part of the plan of treatment’.

Up until February 2008, an odd, but not insignificant loophole existed that prevented paramedics and firefighters from honouring any existing DNR while a person was being provided with emergency assistance on the scene, or while in transport to a medical facility. The Ambulance Act’s Basic Life Support Patient Care Standards, Version 2 meant that paramedics were legally obliged to initiate life support measures, including, but not limited to, chest compressions, artificial ventilation, and intubation. Perhaps 911 had been called in order for the person to be transported to a hospital to be rehydrated, or to be treated for an infection. Prior to February 2008, if something catastrophic were to thereafter unfold en route, emergency resuscitation measures would have been initiated, possibly with unimaginable consequences, even if a DNR order was provided to the paramedics or firefighters on-site.

In order to address this disconnect between personal wishes, best intentions and legal constraints, a DNR Task Force was struck in 2003. As a result, there is a new Do Not Resuscitate Confirmation Form that became the new standard in Ontario as of February 1, 2008. Once completed by a physician or nurse, the form authorizes paramedics and firefighters to withhold life support measures, as well as to provide palliative comfort care measures such as suctioning, oxygen, pain control (including morphine) and tranquilizers. This form can be viewed online here.

Jennifer Hartman, guest blogger

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The Mini-Mental Status Examination (MMSE) is a quantitative measure of cognitive status in adults. Since its creation in 1975, the MMSE has become the most widely used standardized cognitive screening test in both clinical practice and research.

As a screening tool, the MMSE can have limitations, some of which are outlined here:

· Interestingly, the MMSE was never actually designed for diagnosis of dementia; rather it was to be used as ‘a practical method for grading the cognitive state’ (Folstein et al.). As indicated by the team that designed the MMSE (Folstein et al.), in the Journal of Psychiatric Research, the MMSE "does have a number of valuable features for clinical practice even though it cannot carry alone the diagnostic responsibility.”
· Questions have been raised about the use of the MMSE to track cognitive changes over time, specifically, about the clinical relevance of these changes due to the potential for measurement error.
· One’s score on the MMSE is likely to be negatively skewed by a language barrier. Ironically, some patients in the advanced stages of Alzheimer’s Disease often revert to their native tongue, which, if not the English language, would serve to further skew their score.
· Psychological Medicine published a study back in 1982 that showed an increase in false positives amongst hospital patients with fewer than 9 years of education. Conversely, a highly educated person with mild dementia may score within the normal range on the MMSE.
· Studies have also shown that the test is not accurate in older adults who are illiterate.
· The MMSE is not reliable as a screening tool in someone with a learning disability (see reference) or a physical disability that would impair one’s ability to complete the test (e.g. blindness or deafness).
· A paper published in the Journal of Clinical Epidemiology reviewed MMSE results in older Mexican-Americans and found that the MMSE is ‘strongly influenced’ by noncognitive factors including marital status, language of interview and immigrant status.

When the MMSE is misused or applied inappropriately, cognitive deficits may be missed in some patients, while other patients may be misclassified.  However, when applied prudently, and when considered in partnership with additional data (e.g. anecdotal information from family members, or the results of other cognitive tests), the MMSE is both a valuable and valid screening tool for measuring cognitive status.

Jennifer Hartman, Guest Blogger