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Incorporating, signing a lease, hiring staff? Legal advice can help you avoid costly errors.When You Need A Lawyer: Power of Attorney for Personal Care
Making a Power of Attorney has important legal consequences. This article outlines what a Power of Attorney for Personal Care is and how you go about appointing an attorney.
As your lawyer, I can assist you in deciding whether you should appoint an attorney, who should be appointed and what powers your attorney(s) will have. I will then prepare the document and meet with you when you sign it to ensure that it is properly signed and witnessed.
What is a Power of Attorney?
A Power of Attorney is a legal document that gives someone else the power to act on your behalf. This person is called your “attorney.” In Ontario there are two types, the Continuing Power of Attorney for Property and the Power of Attorney for Personal Care. This brochure deals with the Power of Attorney for Personal Care.
Why should I have a Power of Attorney for Personal Care?
Making a Power of Attorney for Personal Care lets you choose a person who you can trust to make vitally important decisions if you become incapable of making those decisions in the future. Your attorney should ensure that your wishes are met and respected. Personal care decisions may be made about your health care and medical treatment, diet, housing, clothing and safety.
What is the difference between a Power of Attorney for Personal Care and a Continuing Power of Attorney for Property?
A Continuing Power of Attorney for Property gives your attorney the power to make decisions about your home, finances and any possessions which you might have.
A Power of Attorney for Personal Care deals only with personal care decisions. The same attorney(s) can be chosen to act for you for both property and for personal care.
When does a Power of Attorney for Personal Care take effect?
The powers granted to your attorney in a Power of Attorney for Personal Care may only be exercised if you become incapable of making some or all of your personal care decisions.
You are considered to be incapable of making personal care decisions if you are not able to understand information relevant to the required decision or are not able to appreciate the reasonably foreseeable consequences of a decision or a failure to make a decision.
You can name a certain individual such as your family doctor or another health professional to assess you and confirm your incapacity but adding this step may make it more difficult for your attorney to act for you in an emergency.
Can someone make a Power of Attorney for me if I become mentally incapable?
No. Only you can make your Power of Attorney and it must be made when you are mentally capable of signing the document.
You are considered mentally capable if:
- you understand whether the person you name as your attorney is truly concerned with your well being, and
- you understand that you may need this person to make decisions for you.
You cannot name someone as your attorney for personal care who is:
- paid to give you health care or residential, social, support, or training services (unless this person is your spouse, partner, or relative)
- mentally incapable, or
- under 16 years of age.
Conditions and Restrictions
You can include conditions and restrictions in your Power of Attorney for Personal Care. Many people include a clause authorizing their attorney to consent to treatment other than palliative care being withheld when there is no possibility of recovery. However restrictions will make it more difficult for your attorney to assist you so they should be carefully considered.
Can I appoint more than one attorney?
If you appoint two or more attorneys you must specify whether they can act separately or must act jointly. To act jointly your attorneys must agree on each decision that is made on your behalf. If you state that they can act “jointly and severally” they can act either individually or together. You can also name a “substitute attorney”. The substitute attorney has the same powers as the primary attorney(s) and can act for you if none of your primary attorney(s) is willing or able to act. The substitute attorney will have to provide proof that each primary attorney is dead or otherwise unable to act for you.
Is my attorney entitled to compensation?
The Substitute Decisions Act does not authorize attorneys for personal care to accept compensation for their services. They may, however, be reimbursed for any expenses they incur on your behalf or in the course of assisting you with your personal care.
Signing your Power of Attorney
The following people cannot be witnesses to the document:
- your attorney or your attorney(s) spouse
- someone under the age of 18 years
- your or your attorney’s spouse, partner or child.
Can I cancel my Power of Attorney after I have signed it?
Yes. As long as you are mentally capable of making a Power of Attorney for Personal Care, you can take it back or revoke it.
If you make a new Power of Attorney for Personal Care, any previous ones that you have made before are automatically cancelled, unless the new one says otherwise.
When does my Power of Attorney for Personal Care end?
Your Power of Attorney for Personal Care terminates:
- when you die
- when your attorney dies, becomes incapable, or resigns, unless you named more than one attorney or you named a substitute
- when a court appoints a guardian of the person for you, or
- when you revoke the Power of Attorney while you are still mentally capable of doing so.
What happens if I do not have a Power of Attorney for Personal Care?
If you have not made a Power of Attorney for Personal Care and you become incapable of making personal care decisions, the Health Care Consent Act allows other substitute decision-makers to make some of these decisions. In order of precedence, decisions about consenting to medical treatments may be made for you by your court-appointed guardian of the person, an attorney for personal care, your spouse, your parent or child, a non-custodial parent who has access rights, your brother or sister, or any other relative.
When should I make a Power of Attorney for Personal Care?
Powers of Attorney are often prepared in conjunction with the preparation of Wills but they do not have to be done at the same time. Your Powers of Attorney will be in effect during your lifetime and end on your death. Your Will does not come into effect until you die. It is often appropriate to appoint the same person (or persons) as your Executor/Estate Trustee and as your Attorney for Property but you may want to name another person or persons to be your Attorney for Personal Care.
For example, you may have one child who assists you a lot with day to day activities but is not good with money and another child who is good with money but is rarely available to help you get to medical appointments etc. You might name the first child as your Attorney for Personal Care and the second child as your Attorney for Property and the Executor/Estate Trustee of your estate when you die. Each person’s situation is different and it is important to consider all the circumstances before deciding who to entrust with the responsibilities of acting as your attorney.
If you have questions about appointing an Attorney for Personal Care please contact me.