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Incorporating, signing a lease, hiring staff? Legal advice can help you avoid costly errors.When You Need to Know the Law: Acting as an Attorney for Personal Care
What is a Power of Attorney?
A power of attorney is a legal document which grants one or more people the authority to act on behalf of another person. In Ontario there are two types, a power of attorney for property and a power of attorney for personal care. This brochure discusses powers of attorney for personal care and discusses what your responsibilities are if you are appointed by someone as their attorney for personal care.
Powers of Attorney for Personal Care
Personal care decisions are those made about your health care and medical treatment, diet, housing, clothing, hygiene and safety. Powers of attorney for personal care may only be exercised if the person who granted the power of attorney is unable to make the decisions for him/herself. Before you make a decision on behalf of the incapable person, both you and the health care provider (or other person who needs the decision to be made) must be satisfied that the person who appointed you is unable to make the decision in question.
If there is a question about whether the person who appointed you is incapable of making personal care decisions, the question can be referred to an evaluator (who must be a qualified health care professional) or to the Consent and Capacity Board.
All personal care powers of attorney must be signed while the person giving the power of attorney is capable of making personal care decisions.
Responsibilities of the Attorney for Personal Care – Health Care Decisions
Responsibilities with respect to medical treatment and admission to care facilities are governed by the Health Care Consent Act (Ontario).
When consenting to or refusing consent to a medical treatment for an incapable person, you must apply the following principles:
- If you know of a wish applicable to the circumstances expressed by the person while capable, you must act in accordance with that wish.
- If you do not know of any such wish you must consider whether the treatment will improve the person’s well-being, prevent the person’s condition from deteriorating or reduce the possibility of deterioration.
- You must also consider whether the benefit expected from the treatment is outweighed by the risk of harm or whether a less restrictive or intrusive treatment would be equally beneficial.
Similar principles apply if you have to make a decision about admission to a care facility. You must consider:
- the values and beliefs of the person when still capable,
- any wishes on the subject expressed by the person while capable,
- whether admission will improve the quality of the person’s life or prevent or slow down the deterioration of that quality of life,
- whether the benefits will outweigh the negative consequences, and
- whether there are other options.
Other Personal Care Decisions
When making personal care decisions that are not governed by the Health Care Consent Act (Ontario), you must do the following:
- act in accordance with any wish expressed by the person while capable,
- use reasonable diligence to determine whether the person has expressed such a wish or instruction, and
- if no wish or instruction is available, make the decision in the incapable person’s best interest.
When making decisions, you have an obligation to consult with the incapable person and try to determine his/her wishes to the extent this is possible in the circumstances. In making a decision in the person’s “best interest” you must consider:
- the person’s values and beliefs held while the person was capable,
- the person’s current wishes to the extent that you can ascertain them,
- whether the decision will improve the quality of the person’s life or prevent or slow down the deterioration of that quality of life, and
- whether the benefit to the person will outweigh the harm from any other decision.
Guardian of the Person
Your authority to act as an attorney for personal care ends if a Guardian of the Person is appointed by a court. When this occurs it is usually because of a family dispute about what care is appropriate.
End of Life Decisions
One of the most difficult decisions that an attorney for personal care must make is whether to withhold consent to treatment when there is no hope of recovery to a reasonable quality of life.
Decisions about whether to consent to feeding tubes, surgery, resuscitation or other treatments can be emotionally wrenching and may also be contentious when family members with different views are involved. The Alzheimer’s Society of Toronto has suggested that you consider certain questions when deciding between aggressive medical treatment and palliative care to control pain and allow the person to die in reasonable comfort and with dignity:
- Is the current goal of care for the person to recover or to not be in pain? What will the quality of life be with or without the different treatment approaches?
- What would the person have wanted in this situation? Have they given an advance directive? How have they have reacted to other people in similar situations? Do their value preferences conflict/agree with the decision to be made?
- What is the potential benefit and potential harm or burden to the person?
- What further information do you need to make the decision and who should be a part of the discussion?
Expenses
The Health Care Consent Act(Ontario) and the Substitute Decisions Act(Ontario)do not authorize attorneys for personal care to be paid compensation for their services. Attorneys may however be reimbursed for any expenses they incur in providing care. If you need to buy a wheelchair, personal supplies, food, clothing or other items or to pay a caregiver you are entitled to be fully reimbursed from the incapable person’s assets for all costs you incur. If you are also the attorney for property, you may reimburse yourself. If someone else is performing that function you will need to provide receipts for your expenses and request reimbursement or put an arrangement in place for the necessary costs to be paid directly by the attorney for property.
Confidentiality
An attorney for personal care should maintain confidentiality about the affairs of the disabled person. This does not, however, preclude consulting with family members when significant decisions are needed and keeping family members and close friends fully informed about the care decisions that are being made.
Joint Attorneys
If two or more attorneys are appointed “jointly”, they must act together. If they are appointed “jointly and severally” either of them may act alone or they may act together.