Power of Attorney for Personal Care
It is important to note that a Power of Attorney only applied while you are alive, and becomes null and void the moment you die.
A Power of Attorney for Personal Care allows you to grant another person official authorization to make decisions about your medical care in the event that you are unable to give those instructions yourself due to illness or lack of mental capacity. This authorization must be in writing and clearly name the person whom you want making your decisions, as well as setting out if it is subject to any restrictions.
In the event that you suffer an accident that renders you unconscious or comatose, or you lose the ability to communicate, someone else will have to step in and direct medical professionals what treatment is acceptable to you, and what type of heroic measures you may prefer not be administered.
This type of Power of Attorney also authorizes your attorney to make decisions about your day-to-day care, if necessary, as well as your safety and where you will live if you become unable to live independently.
The Power of Attorney for Personal Care is the method you use to appoint that “someone else” who is authorized, by you, to make those decisions, and give those instructions.
By preparing a Power of Attorney for Personal Care, you choose whom to appoint, and what directions they will follow, giving you peace of mind.
Any person of the age of majority (which is age 18 in Ontario) can execute a Power of Attorney for Personal Care appointing a person to act as their proxy when it comes to their healthcare and medical decisions. Until an individual attains the age of 18, their parents are their proxies and give directions regarding their health and medical needs.
Even a person already suffering a mental impairment (such as dementia, senility or Alzheimer’s) might be capable of signing a Power of Attorney for Personal Care. In such a circumstance, it is necessary for the lawyer working with that person to speak with them and, essentially, administer a test of whether that person has the capacity necessary to sign the Power of Attorney or not. Provided that they understand the nature and consequences of the document, they may be competent to sign.
The person whom you choose to name as your attorney under a Power of Attorney does not have to be a lawyer. It is confusing to many people that we use the term attorney as the label of the person you appoint to act as your proxy when, in the United States they use that term to describe a lawyer.
In Ontario, any person over the age of majority (18 in Ontario) is able to act as your attorney. However, you need to give serious consideration to whether or not an 18-year-old (or even a 22-year-old) is sufficiently mature to handle the responsibility of directing doctors about the care you should receive if you become incapacitated.
Because there is a possibility that the person you named as your attorney becomes unavailable for any number of possible reasons, most lawyers recommend that you also name an alternate. Many Ontarians, for example, name their spouse as their primary attorney, and a child of age as the alternate.
When it comes to acting as an attorney for personal care, your attorney should consult with your family members to discuss your changing needs, medical situation and obtain their opinions regarding any change in the directions to provide to medical professionals with respect to your personal care. The attorney should also consult regularly with the health care providers, and seriously consider following the advice that they provide.
Ultimately, decisions are in the hands of your attorney, regardless of advice receive from health professionals involved in your care, or your family’s wishes.
When it comes to acting as an attorney under a Power of Attorney for Property, your attorney is governed by the Ontario Trustee Act. When appointed as attorney of your property, there is an obligation to deal with your finances only to your benefit, or the benefit of your bona fide dependants (such as minor children), and not the benefit of the attorney.
For example, the attorney ought not to make loans to themselves using your assets or credit. Upon the Power of Attorney taking effect, the attorney should inventory your estate, determining the location and value of your assets, as well as your debts. Copies of the records showing the balance of the assets and debts when the attorney’s role starts, as well as they change, is important.
The attorney is also responsible for maintaining thorough records (with receipts) of their spending and to report to the Court on a regular basis to ensure no improper spending has occurred.
It is prudent to seek legal advice when an attorney’s power starts, then an accountant to assist them in tracking the necessary figures and paperwork.
Section 10 (1) of the Ontario Substitute Decisions Act, 1992, states that to meet the formal requirements (meaning, to be found to be a valid Power of Attorney), the Continuing Power of Attorney must be signed by the person appointing an attorney, in front of two separate witnesses in a way that all three of those individuals are in the same room at the same time.
However, there are restrictions on who may witness the signing: specifically, it cannot be the spouse or partner of the person appointing an attorney, or the spouse or partner of the named attorney, and other restrictions. Of course, no one under the age of 18 may act as a witness because, in Ontario, 18 is the age of majority.
A Power of Attorney should also be either 100% hand written by the person appointing an attorney, or 100% typed.
Many Do-It-Yourself Will and Power of Attorney kits can be purchased that are typed, where you are asked to fill in the blanks with your information and wishes (presumably by handwriting them in). The Court can refuse to find this type of Power of Attorney (or Will) valid so we recommend the exercise of extreme caution if using such forms.
Contact the Wills and Estates lawyers at M. G. Michaels & Associates today, to set up your appointment for your Power of Attorney for Personal Care.
