Expert Nathan Spaling

In this special bonus episode of Beware the Mysterious Mark, featuring Nathan Spaling, a lawyer and registered social service worker, founder of the Capacity Clinic and a co-founding member of the Canadian Centre for Decision-Making Capacity. Nathan talks about a wide range of topics, including mental capacity, the documents meant to protect older adults, and the disconnected system that too often lets those protections fail.

Nathan's work sits where law, medicine, and finance meet, the place where questions of capacity rarely belong to any single profession. Across the conversation, he draws out the planning, the documents, and the quiet gaps beneath Bert's story. He focuses on several key areas:

Planning for incapacity. People plan extensively for death, Nathan observes, yet rarely plan for the period of incapacity that may come first. He confronts a dangerous and widely held misconception: that a person will recognize for themselves when they can no longer make sound decisions. In almost every case, the opposite is true, which is why a trusted network and clear procedures need to be in place long before anything goes wrong.

Powers of Attorney and the risk of fraud. Nathan calls the power of attorney the most important document a person signs while still alive, and warns that it carries almost none of the safeguards that importance would suggest. He compares it to a driver's licence with no photo, no registration, and two signatures that are often unconfirmed. This document, nonetheless, allows someone to sell a person's car, sell the house where it is parked, and access the proceeds. He also explains how a single new document, signed at a lawyer's office, through an online service, or from a printed template, can quietly revoke a person's entire plan, and describes the national POA Registry being built to prevent this, with a revocation notice system that alerts the previously appointed attorney so they can step in.

Confidentiality and the silos. Confidentiality is the fabric of the legal system, Nathan says, the reason clients can seek advice with confidence. It is also a double-edged sword that limits the due diligence families want and allows a vulnerable person to be taken to another professional to sign new documents without the original appointee ever knowing. He argues that the professions have worked in disconnected silos for too long, each with its own sense of what risk looks like, and that real protection begins when those professionals talk to one another and to a trusted contact.

Capacity assessment and a national framework. Nathan is direct about how much subjectivity surrounds the judging of capacity, work often done part-time, in isolation, with little guidance or support. He describes five years of effort at the Capacity Clinic to develop practical, evidence-based methods for approaching an assessment, and the Pan-Canadian Assessment Framework that the Centre is developing to help professionals recognize predictive risk factors and respond to them.

Practical advice for families. Concern, Nathan says, should not wait until someone forgets where they put their keys. It begins at the planning stage, with transparency about who is expected to monitor the situation and who is expected to respond. When worry has already set in, he points to the police, the public guardian, specialized legal help that can investigate on a family's behalf, and the community advocacy organizations that support people in exactly these circumstances.

Nathan is candid about how unprepared the current system is to catch this kind of harm. A power of attorney, he points out, can be created with fewer safeguards than a driver's licence. Confidentiality protects clients, but it also protects those who would exploit them. And almost no one can recognize their own incapacity from the inside. All of this, he notes, is unfolding against the largest wealth transfer in history, at the very moment that the trusted professionals and care providers people count on are beginning to retire.

For anyone who has followed Bert and Brooke's story and wondered how the system could have allowed it to happen, this conversation is essential listening.

The information shared in this episode is for general awareness only and does not constitute legal, financial, or medical advice. Listeners with specific concerns should consult a qualified professional about their own circumstances.

Beware Mysterious Mark is a Radio Sidney production. This project is funded in part by the Government of Canada's New Horizons for Seniors Program.

Show notes, episode transcripts and resources: mark.radiosidney.ca

Contact: info@radiosidney.ca

Transcript

SPEAKER_00 0:00

I'm Nathan Spaulding. I'm a lawyer and registered social service worker. And I founded the Capacity Clinic, and I'm one of the co-founding members of the Canadian Center for Decision-Making Capacity. Some advice that I would give to the medical or legal professionals is first and foremost, definitely get information yourselves. There's a lot of a foundation to begin with, but when we're talking about something that is what I call a crack in the system, so much of the crack in the system comes from misinformation, miscommunication, or assumptions. And I'm gonna say the fourth one, and maybe the most valuable, is talk to each other. We have been working in these silos for so long, and we've developed our own practices and procedures as to how are we going to independently identify vulnerability. And what we've been learning so much of is the value of information, educating people and informing people, the importance of a discussion between yourself and a client, between yourself and other professionals, can really build procedures and structures that are going to reduce the risks associated with these types of things. And that is definitely something that we've seen is the value of learning from other professionals has been has been so important. Number two, speak to each other in a language that you can understand. Again, one of the bigger barriers that we found is it feels academic, it feels the types of planning we're talking about is for this one percent of a one percent of the population, and it's for everybody. Decision making doesn't have disability boundaries, it doesn't have socioeconomical boundaries, it impacts everybody. It's a human right. I'm going to encourage you to actually go one step farther than even just the legal professionals. The medical professionals, I have found, depending on the setting, and I wouldn't say everybody's perfect in this way, but there is more collaboration, multidisciplinary collaboration around a person's care. And I'm not necessarily sure that same thing applies to the assessment of capacity in that context, but it does help to meet the needs of the person from a care point of view. Where that model falls short, though, is that same person that receives this sensitive, multidisciplinary type of care in the care context and the hospital or health context, after they leave the hospital and they're discharged to go back to their house, they go down to the bank. They go into a law office, they go change where they're going to live. And that's where the multidisciplinary that we've seen has to include people from all of these different sectors, removing the silos of what risk factors we're in tune with as lawyers or as healthcare professionals or as financial professionals, asking for information to get a better sense of how do I meet the needs of this particular situation is one of the best steps that a person can do. And because there's so much privacy and confidentiality that also fits into these conversations, it does make it challenging. And that's where taking the steps, really laying the groundwork for educating your client on the benefits of this type of approach can really help give more finality or certainty towards what they're trying to achieve from their health from the legal point of view or financial point of view. So often people are focused in their planning discussions to planning for their eventual death, or how do they make certain financial or health or even mental health-related decisions? And we've seen through the financial literacies, health literacy, mental health literacy, these are important points. It is absolutely essential to plan for these things. It is absolutely essential to educate people or at least understand how how much they're aware of when it comes to making these decisions. But this is where the Canadian Center for Decision-Making Capacity has really seen the need for incapacity literacy. And incapacity literacy is really the bridge to the existing gaps of the health, mental health, and financial literacies to appropriately promote a personal autonomy and protect those who are vulnerable to risk of harm with supported or substitute decision making. And this works by helping to inform them about how incapacity planning works. How can we establish a framework for your trusted network to monitor for incapacity risks? And then developing the skills for your trusted network to respond to incapacity risk factors across a spectrum of health, financial, and legal decisions. People plan for death, and so often they aren't considering how they need to plan for their incapacity. Or the personal directive or the representation agreement. There are lots of different names across Canada, depending on which province you're in. But because this is the document that's used when you're at your most vulnerable, it has to give somebody the authority to be able to make all of these different types of decisions on your behalf. And if you think this is the person I'm entrusting to be able to act in the best interest of my well-being, you can't possibly be talking about a more important document while a person's alive. Imagine I was talking to you about being able to download a driver's license from the internet. And imagine you could have that license signed by two people. Imagine that license did not have to be registered with any provincial government or territorial government. And imagine that driver's license didn't even have to have a picture on it. You would look at me and you would say, You've completely lost the plot, Nathan. What are you talking about? Of course we need to have safeguards protecting who can drive and who can't beyond what you're just describing. But the state of how powers of attorney and uh enduring power of attorney for property are currently being regulated is that same person with those same safeguards, no picture, no registration, signed by two people that not all the time can be even confirmed, they can sell that car, they can sell the house that the car is parked at, and they can potentially access the funds from the sale of the house in the car. Now, this is not just about money, this is about where you live, what type of care you're going to be having, and really impacting almost every facet of the life. So how these documents are not going to be more closely regulated is something that has to change. And that's where we've taken up this national initiative to work with the drafting providers of these documents and the storage providers of these documents to create a fraud reduction program so that businesses, when they have these documents coming into them, substitute decision makers when they're appointed under them and their authority is revoked, there is notice, there is a connection so that this all-important authority is more closely monitored. And that's really something that we're missing. Because how does almost any business who receives that document knowing if this is who you want to make the decision or not? The need for a cohesive system for these documents to prevent fraud can't be spread across five different database holders. We see this in the medical system all the time. Is you can't access somebody's data because it's in a different system. And when it comes to a person's power of attorney, we have to have a cohesive system that works across Canada. And different than a will registry. A will registry is concerned about finding the original document after death. But that document is ultimately validated by the court. The power of attorney, on the other hand, this is a fraud prevention system. This is why we can't have systems that don't talk to each other for the drafters and the holders. So if you want more information on the POA registry, go to www.poaregistry.ca for the professionals to be able to access and register the documents. If you think of the different sources that a person can get these documents from, the professionals, a different professional, an electronic solution online, or a hard copy template. And anytime somebody signs one of those three, even if you've had it done with a professional, it can revoke or undo all the planning that you had in place, and this becomes a tool for POA fraud or POA misuse. So the registry not only has the last in time serving as a source of truth, but it has a revocation notice system built into it. And the revocation notice system takes it away and out of the hands of the professionals where the system is going to give notice to the previous POA. And that previous POA, if they have notice that they've had their authority revoked, this is the time that they can seek action and actually take proactive steps to protecting somebody's interest. A power of attorney registry does exist, and we are working with storage providers and drafting options, electronic and professionals, across Canada so that we reduce the risk of POA fraud and misuse. If we're talking about some of the due diligence, we're also facing a really big mountain here. And why I say that is of course what I'm talking about being so disconnected is really shocking to most people. But we're not just in the middle of the greatest wealth transfer of all time. This isn't just the time where people are making the most complex medical decisions in history because of the advances in technology. We're doing both of those on the back of the greatest client transfer of all time. Your professional that's helping you with this historically throughout your life is probably going to retire. Your care provider, who you think is going to be doing the assessment, is going to retire. And these are all going to be the people that you're expecting to be there for you at these critical times. And there's so much subjectivity that people have without a Canadian framework for being able to have some reference points around things like capacity. How do you balance confidentiality in terms of the investigation type of work that has to go with us? These are so important for the professions to start to give the members more guidance, more support, and more leadership around so that we're not just protecting their professional reputations, we're protecting the clients that we work with as well. The concern doesn't start at the time that somebody can't remember where they put their keys or the check that they wrote last week. The concern has to start at the planning stages. More transparency around who's expected to monitor this, who's expected to participate in this, is really what's needed here. Because people just don't have the training necessarily to be able to say, I'm going to respond to this concern because it's legitimate. So often, it's actually at a point where the vulnerability is so great that somebody could have been taken advantage of for quite a while. But if you are in that spot, certainly I would say the police are one option. There are the public guardian offices, are another option, but definitely the legal professionals across Canada, hiring specialized professionals can definitely help. The reason that I'm somewhat partial to hiring legal professionals in this context, especially if you're concerned and the person's not cooperating and all the wheels feel like they're falling off the wagon, is because you need somebody to act in your best interest so that the investigation actually gets some fruitful information so you can be informed. Am I going to take one type of action or another? Not every single case is going to be a situation where somebody is preying on a vulnerable person, but at the same time, there's so much lack of information and training that it's difficult to really know that yourselves. And I would say this is one of the cracks in the system that we've seen so much of. And that is everybody has their own opinion what that looks like. Some people think it's the first time you forgot a grandkid's name or a friend's name or whatever, a professional's name. Another person's gonna say, no, you have to sign over a check that's half a million dollars, and this is gonna be the case. Another person is, they're gonna say, it's when they change their power of attorney. This is something that they expressed to me that they weren't going to do. It's a departure from these long-held intentions. Certainly, those are some great options. There's a lot of great advocacy groups out there as well. A lot of amazing community-based organizations that provide support for people in these situations. And I definitely would say those are some great places to start to gather information so you can put yourself into a spot where you'll make a decision. One of the current difficulties with speaking to the previously appointed people is now you have another complicated layer to consider on top of it. And it's breaches of privacy. And these are so complicated that businesses of all sorts and nature are concerned about breaching privacy. And this goes back to the way that the plans are built for incapacity is it allows you the opportunity, when you are incapable, for somebody to take you to a different professional or a different source and sign these documents. So definitely having these silos in place definitely helps people that have ill intentions. And, you know, speaking to the previous substitute decision maker can be a vital piece of information. But at the same time, for these other situations which aren't the outliers, this is the other side of the coin where you want to respect who they want you to talk to and who they don't want you to talk to. So it comes down to so much of the time the procedures that businesses are going to have when they're actually taking instruction from a substitute decision maker. And that's what has to be improved, is we have to find a way to reduce the subjectivity and some of the due diligence and proactively build that trust with clients and with the people that we're working with so that when that time comes, and it doesn't for everybody, but when that time does come, everybody has a path that they know they can trust and follow to make sure that they're protecting the vulnerability or risk for the person. Confidentiality is really a double-edged sword. And I say this because on one hand, you can see how it creates limitations to the due diligence that people would be crying out for. But on the other hand, it's the underpinning of the fabric of the of the legal industry is being able to have the confidence that I can make decisions, I can get information, I can get advice, and I'm not going to have to worry about the backlash of how other people are going to react. And that is, especially when it comes to these types of planning documents, such an important part of how does the professional balance this. I do think coming back to some of the education-related stuff, a lot of people who don't trust their incapacity plan might not be aware of this plan they're making might not hold water if somebody challenges it because of their mental incapacity. So taking steps to document this and reduce those risks, even though it may mean we need to talk to a trusted contact, it doesn't always have to be the beneficiaries you're talking to. There's lots of people that are in a position to be able to provide very important information that that doesn't require it going to the beneficiaries or the appointed attorneys or this type of thing. But it does require some educating as to the purpose for these things because there's a lot of information that somebody has to consider when they're putting together the appropriate plan for themselves. And the thrust of what we've been doing is we want to reduce the variability when people know it's appropriate to use supported, independent, or substitute decision making. And at the capacity clinic, we recognized that the assessment process so often has people doing this as a part-time in their own silos and without a lot of guidance or support to complete the assessments. So we've iteratively, over the past five years, been developing best practices to know what information does a person have to have going into the assessment? What types of questions should the person be asking during the assessment? And then what are some of the responses or observations that you're looking for to drive your conclusion of if a person's able to or not? And this really is something that is built on a multidisciplinary, iterative, collaborative, and practical approach because decision-making capacity is something very complex, but something that is very much needed in terms of reference points for people to set a plan and create clear expectations as to around when it's going to be used. So the thrust is of what the Capacity Clinic and the Canadian Center is going to do is to create best practices for professionals to use and resources for them to be able to access to reduce the variation in the outcomes of this type of thing. We want to work with community stakeholders. And we want to help iteratively develop the Pan-Canadian assessment framework to help professionals have a clear understanding as to what these predictive risk factors are and how to respond to them. And that's something we're actively continuing to collaborate with people on and really build this evidence-based path toward in capacity literacy. For more information on what we're doing, you can check out the Canadian Center for Decision Making Capacity at www.incapacityliteracy.org, or you can check out Capacity Clinic's website at www.capacitlinic.ca