The following are some common questions that we often get asked about Powers of Attorney for Personal Care.
Q. What is a Power of Attorney for Personal Care?
A. A Power of Attorney for Personal Care is legal planning document. The Substitute Decisions Act assures that a person you choose to be your Attorney for Personal Care will make your personal care decisions for you if you become incapacitated.
Q: What are the formal requirements of a Power of Attorney for Personal Care in Ontario?
A: It must be in writing, and must be signed by the grantor and two witnesses. There are restrictions on who can be witnesses. Please contact Matt Lalande, Burlington Lawyer for more information.
Q. What is incapacity?
A. You would be incapable of personal care if you are not able to understand information that is relevant to making a decision concerning your own personal care, health care, nutrition, shelter, clothing, hygiene, safety and you are not able to properly appreciate the foreseeable consequences of a decision or lack of a decision.
Q. Does Attorney mean lawyer?
A. No. This is often very confusing. The term “attorney” is an American term that means lawyer. However in Ontario, an Attorney for Personal Care refers to a person that you choose to name in your legal document to act on your behalf.
Q. Can I appoint more than one Attorney?
A. Yes. You may appoint more than one Attorney to act jointly or separately.
Q. When is a person capable of giving a Power of Attorney for Personal Care?
A. When a person has the ability to understand whether the proposed Attorney has a genuine concern for that person’s welfare and also if that person appreciates that he/she may need to have the proposed Attorney make decisions for himself/herself.
Q. Who may you not be appoint as my Attorney for Personal Care?
A. You may not appoint anyone who provides you with healthcare, residential services, social services, training services or support services for compensation. This means you should never appoint your landlord, your doctor, your teacher, an attendant, a nurse, a V.O.N. or anybody that provides services to you.
Q. When will the Power of Attorney be valid?
A. A Power of Attorney will be valid if at the time it was executed you were capable of giving instructions for execution even if you are incapable of personal care.
Q. Is this a living will?
A. No. A living will is a document in which you write down what you want to happen if you become ill and cannot communicate your wishes about treatment. For example, in the United States a living will is often used to provide instructions with respect to your termination of your life based on severe incapacity. For example, if you do not want to be kept alive on artificial life support, and if you have no hope for recovery, then perhaps a living will would provide direction as to your instructions. A Power of Attorney rather, is a legal binding document in which you name a specific person to act for you with respect to your healthcare decisions. You can write your treatment wishes as part of your Power of Attorney so that you can be sure your Attorney is aware of them. At Haber & Associates we draft our Powers of Attorney to deal with life ending issues. A living will simply addresses the treatment and your wishes with respect to personal care. The Power of Attorney actually names somebody to do this for you.
Q. Do I have the capacity to revoke a Power of Attorney for Personal Care?
A. Yes. You are capable of revoking a Power of Attorney for Personal Care if you are capable of making one.
Q. When does my Power of Attorney for Personal Care become effective?
A. Your Power of Attorney for Personal Care is effective once you are not able to understand information that is relevant with respect to your healthcare decisions. It becomes effective upon your incapacity. A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. A person may be deemed capable of making one kind of decision regarding personal care but not another kind. If the personal care decision you face is in respect of medical treatment, the question whether you have the mental capacity will normally be left to the Health Care Consent Act and your Attorney. The ability to decide, on reasonable grounds, whether the pwoer of attorney for personal care is effective is effective is subject to one exception , where the Power of Attorney document itself indicates that there must be confirmation of incapacity before the Power of Attorney is effective. This can be by test you set out.
Q. Can someone assess my capacity before decisions are made for me under my Power of Attorney for Personal Care?
A. Yes. The Attorney and/or Power of Attorney shall, on your request, assist in arranging an assessment with respect to assessing your capacity as a grantor.
Q. Can my Attorney resign?
A. Yes. An Attorney under Power of Attorney for Personal Care can resign if he/she delivers a copy of the resignation to the grantor and to other Attorneys under the Power of Attorney, if your Power of Attorney provided a substitute of another person. There are a few other rules with respect to resignation that you should discuss with a lawyer at Haber & Associates if you wish to resign.
Q. What if my Attorney makes decisions that do not conform to my wishes or to my best interest in the given circumstances?
A. Your health care providers or long term care authorities are able to apply to the Consent and Capacity Board if they believe that your health decisions are not being properly met by your Attorney under your Power of Attorney for Personal Care. A court also has the authority to make an endorsement to remove your Attorney and appoint a guardian in his/her place.
Q. What if my Attorney dies or cannot act for me?
A. This is why at Haber & Associates we recommend a substitute Attorney. The substitute Attorney is an Attorney that acts on behalf of your original Attorney should your original Attorney not be able to make proper decisions for you and/or has died.
Q. What can a Power of Attorney decide for me?
A. If you become mentally incapable your Attorney must make decisions that conform to your legal document. Your Power of Attorney for Personal Care can make decisions with respect to your health and personal care. The decisions that your Attorney can make will be decisions that you cannot make yourself because you are mentally incapable and you cannot make decisions concerning your own health care, nutrition, shelter, clothing hygiene, safety or you are not able to reasonably foresee the consequences of a decision or a lack of decision. If you become mentally incapable and your Power of Attorney does not have authority to make decisions for you, the Court may appoint a guardian in the Attorney’s place. We strongly suggest that if you are considering a Will or a Spousal Will, that you please also let us draft Powers of Attorney for Personal Care and Property. If you become mentally incapable to make decisions for yourself, than other people will be appointed to make your health care decisions. This could be your guardian, your spouse, your child, a parent, a sibling, or another relative. The problem is that you may not want any of the above to make decisions for you should the consequence arise. It is always better to legally plan for both incapacity and death and name the people of your choice that will make decisions for you.
If you have any questions, please do not hesitate to contact Matt Lalande at Haber & Associates at (905)-639-8894 or use the contact form located here and a lawyer will get back to you. THis is not legal advice. These answers are directly from the Substitute Decision Act S.O. 1992, CHAPTER 30