Today’s blog sets out relevant considerations when preparing a Power of Attorney for Personal Care (POAPC). 

A POAPC allows a person (the “grantor”) to name another person (known as the “attorney”) to make personal care decisions on their behalf if they are no longer capable of making such decisions themself.  The named attorneys can act jointly (together) or severally (independently). 

Legislative Authority

The legislative decision making authority over “personal care” matters comes from the Substitute Decisions Act, 1992. “Personal Care” is defined to include: healthcare, nutrition, shelter, clothing, hygiene and safety.  

The Health Care Consent Act (HCCA) governs health care decisions.  All treatment decisions fall under the HCCA.  Other decisions that fall under the HCCA include admission to a long term care home as well as personal care services within a long term care home.  Under the HCCA, where a health care practitioner determines that a person lacks capacity with respect to treatment, consent is required from the substitute decision maker (subject to an emergency treatment exception).  The grantor can be capable of making certain decisions while incapable of making others, it can depend on the treatment and the timing of the event.

The substitute decision maker is determined according to a hierarchy set out in the HCCA. A named attorney for personal care is the substitute decision maker if:

1. health care practitioner is not aware of a possible Consent and Capacity Board application,
2. there is no court appointed Guardian of the Person,
3. the POAPC gives the attorney authority to give or refuse consent to treatment,
4. the attorney is available (can be reached and responds in reasonable time), and
5. the attorney is willing to assume the responsibility of giving or refusing consent to treatment.

Formal Requirements for a POAPC

To make a POAPC,  

• a grantor must be 16 years of age or older, 
• no specific form is required, 
• the document must be signed and dated by the grantor in the presence of 2 witnesses(physical presence or virtual presence is acceptable).  
• Witness- must be 18, can’t be spouse, partner, a child, under the age of 18, or an individual under guardianship. For a virtual signing, one witness must be a law society of Ontario licensee.

Tips:

• sign multiple originals for convenience and to provide a copy as needed. 
• an affidavit of witness is advisable if signed in the virtual presence of the witnesses setting out that one witness is a lawyer.  
• substantial compliance with the formal requirements is available.

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Capacity to Make a POAPC

The grantor must have the requisite capacity to make a POAPC.  The capacity required to make a POAPC is different from the capacity to consent to treatment.  The threshold to make a POAPC is quite low. 

To have capacity to make a POAPC the grantor:

1. Must be able to understand whether the chosen attorney has genuine concern for their welfare? 
2. Must be able to appreciate that the proposed attorney might have to make decisions on their behalf. 
3. Must be able to provide valid instructions, at the time of execution of the POAPC.

Considerations for Attorney Selection

  An attorney must be 16 years of age, there is no residency requirements (although it is often convenient to name someone local), and the grantor can choose almost anyone, other than a person who:

• provides health care to the grantor for compensation or 
• provides residential, social, training or support services to the grantor for compensation, 

Unless that person is the grantor’s spouse, partner or relative.

When deciding who to name as an attorney for personal care, consider the following:

• Name a person with shared values. 
• If naming more than one attorney, consider if they can act together or separately and whether they will get along? (In cases of conflict between multiple attorneys on whether to give or refuse consent to treatment, the Public Guardian and Trustee will make the decision)
• Are they capable of handling the emotional stress?
• Where are they located– can they be responsive and show up if need be.  Some doctors or hospitals may be more willing to have decisions made via the phone or by email.
• Emotional considerations - is one child a better fit than the other, will the other be upset not being named.

Triggering Event

         The named attorney should act when they have reasonable grounds to believe the grantor is incapable of making the personal care decision themself, unless, the POAPC document requires that incapacity be confirmed. In that case, the document might specify the method of determining when a grantor is incapable of personal care, but if not, can be confirmed with a capacity assessor.  

Long-term Care

The attorney must determine whether the grantor needs a long-term care home (not a retirement home) and the decisions that come with that move. The attorney will have to determine the assistance, the supervision, and the routine of living for the grantor. It is very important for the POAPC to not take full control of all decision making. 

The attorney should encourage the incapable person (IP) to try to participate in the decision-making process to the best of their ability. The attorney should maintain regular contact with the IP and ensure that they are doing well. The attorney should regularly consult supportive family and friends of the IP to ensure that they are onboard with the decisions being made and feel a part of the decision-making process. The attorney should consult with the attorney for property to ensure that the estate is being well maintained.

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eState Planner Academy hosts advanced topic webinars every Thursday at 12:30 (ET). You can sign up for free CPD credits here: https://landing.e-stateplanner.com/en-ca/e-state-webinar

To watch a recording of this webinar, you can register here: https://landing.e-stateplanner.com/poa-personal-care

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