Powers of Attorney

• medical treatments, such as accepting or refusing treatments by regulated health care professionals, including doctors, nurses, dentists, and physiotherapists.
• admission to a long-term care facility.
• personal assistance services in long-term care homes, such as bathing and help with meals.

A Power of Attorney for Personal Care takes effect only if you are not mentally capable of making decisions for yourself. Being mentally incapable means that you:

• are not able to understand the information needed to make personal care decisions, or
• are not able to appreciate what might happen when you make or refuse to make personal care decisions.

Your attorney’s authority is restricted to decisions that you are not capable of making for yourself. For example, you might be capable of taking care of your nutrition and clothing, but not capable of making decisions about your housing.

The Power of Attorney document can include a statement about who can decide if you are capable to make personal care decisions. This can be a health-care practitioner or even your attorney.  There are duly qualified capacity assessors appointed by the Province of Ontario who can conduct a capacity assessment in the event that your capacity to manage your affairs is at issue.

To grant a Power of Attorney for Personal Care you must be at least 16 years of age and  mentally capable

To be considered mentally capable of giving a Power of Attorney for Personal Care, it must be clear that you understand the need to choose someone with genuine concern for your welfare, and that there may be a need for that person to make personal care decisions on your behalf. It must be clear that your decision to appoint an attorney under the Power of Attorney for Personal Care is made voluntarily and not by undue influence or duress.

Selecting your Attorney for Personal Care

The person you decide to appoint as your attorney should be someone with good judgement, whom you trust to make important decisions about your personal needs. This could be a family member or a close friend. You will want to ensure your chosen appointee is willing to take on the responsibility of the role and, importantly, understands your values.

The following people are not eligible to act as your attorney, if they are paid (by you or someone else) to provide services to you, unless that person is also a family member:

• your landlord.
• any person who provides care for you in the place where you live.
• your social worker, counsellor, teacher.
• your doctor, nurse, therapist, or other health care provider.

Advance Health Care Directives

You will want to discuss with your attorney the kinds of decisions that they might have to make for you, and what your considerations are when you make these decisions for yourself.

Your Power of Attorney can include your wishes about your personal care. This is sometimes called an “advance care plan”. It can include matters such as:

• remaining in your own home as long as possible.
• respecting your religion or dietary preferences when choosing food.
• allowing or declining to use artificial life support if you become terminally ill.
• talking to family members before making certain decisions.

You may want to include an advance health care directive as part of your Power of Attorney for Personal Care.

An advance directive is a document that tells others what you want to happen if you need medical care and are unable to consent or refuse treatment. For example, some people write an advance directive that says they do not want to be kept alive on life support if they have no hope of recovery.

An advance directive helps guide your attorney under the Power of Attorney for Personal Care in the choices to be made. The advance care directive is made with the goal of sharing the responsibility for such difficult decisions and relieving feelings of guilt when decisions need to be made.

Under Ontario law, if you express wishes about your future care while you are mentally capable, these instructions will be binding on your attorney or other substitute decision-maker, unless your wishes are impossible to follow at the time the attorney is asked to make the decision.

Often the document provides instructions on end-of-life care, including authorizing medical assistance in dying, if permitted by law at the time your attorney is acting.

If no Attorney for Personal Care is appointed

If a person become incapable of making health-care decisions, the Health Care Consent Act delineates in order those persons statutorily entitled to make these decisions:

• your Guardian for Personal Care, if you have one;
• the attorney you name in your Power of Attorney for Personal Care, if you have one or are capable of making one;
• your representative appointed by the Consent and Capacity Board, if you have one;
• your spouse or partner;
• your parent or your child if they’re at least 16 years old;
• your brother or sister;
• any other relative;
• the Office of the Public Guardian and Trustee.

2. Power of Attorney for Property

As with the Power of Attorney for Personal Care, the Power of Attorney for Property is a document created to grant a person the authority to deal with your affairs if you become incapable by illness or disability from making these decisions for yourself. In this case the decisions pertain to your financial life, from filing your income tax returns, to paying your bills, to buying and selling investments on your behalf or acting as your legal representative in case of a lawsuit. A general continuing Power of Attorney for Property is a very powerful document. Unless you specify otherwise, the person you name can start making decisions immediately.

In your consideration of who to appoint as your Attorney for Property, you will want to ensure the person you choose is trustworthy, understands your wishes and agrees to this important responsibility, which includes keeping detailed records of all transactions involving your money and assets. In selecting your attorney, you will want to consider persons with some experience or facility with financial decisions. One option is to use a trust company to act as your attorney. The trust company charges a fee but will be professional and impartial.

To be considered mentally capable of giving a Power of Attorney for Property, it must be clear that:

• you are aware of the nature and extent of your assets;
• you are aware of obligations you owe to your dependents;
• you understand the authority and power you are giving to the person holding Power of Attorney for Property;
• For a Power of Attorney for Property, the person must be at least 18 years old;
• Anyone given Power of Attorney must be considered mentally capable when they are appointed.

If No Power of Attorney is created:

For any financial decisions, legal authority is needed. If you become unable to make decisions about your property or finances and you do not have a Power of Attorney for Property in place, someone will have to apply to a court for authority to act on your behalf during the period of your incapacity. This is a slow, expensive, and sometimes contentious proceeding. The Ontario government Office of the Public Guardian and Trustee will step in to be appointed if there are no other suitable candidates, such as family members. A capacity assessment by a capacity assessor appointed by the Province of Ontario will be the first line of inquiry.

Once an assessment finds that you are mentally incompetent, a Certificate of Incapacity will be issued. The Public Guardian and Trustee will become the guardian first. This is called a “statutory guardianship”.  As the guardian, they will first seek out any family member who can replace them as your guardian. Provided there are no disagreements among family members as to who should be the replacement guardian, the Public Guardian and Trustee will hand over guardianship immediately. That person will then have guardianship while you are mentally incompetent.

Virtual Witnessing

During the COVID 19 pandemic, the execution of personal planning documents (Wills and Powers of Attorney) has become very challenging, especially for those persons who must keep strict social isolation.

The Ontario legislature has passed revisions to the law to permit lawyers to witness the execution of such documents remotely by video. There are also other options for the execution of these documents, such as socially distanced appointments in driveways, and as always, clients may attend at our offices, as law firms have been deemed an essential service by the Province.

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