A Power of Attorney for Personal Care (POAPC) is a legal document in which an individual (known as the “grantor”) appoints another individual (known as the “attorney”) to make decisions about their health care, housing and other aspects of personal life should the grantor become mentally incapable of making these decisions on their own. In some jurisdictions, a Health Care Directive or Representation Agreement may fill a similar role.

This article provides an overview of the law in provinces and territories other than Québec (for information regarding incapacity planning in Québec, please see the article “Incapacity Planning in Québec”).  Since each province and territory has separate legislation governing the creating of a POAPC, appropriate legal advice should be sought in the relevant province.

How to Create a Power of Attorney for Personal Care

The grantor of a POAPC must be considered mentally capable of executing that document. To be considered mentally capable, it must be clear that they understand:

1. The need to choose an attorney who has a genuine concern for the grantor’s welfare, and
2. That there may be a need for the attorney to make personal care decisions on the grantor’s behalf.

In most provinces, there is no special form required to execute a POAPC. Generally, to be valid, the document must:

• Name one or more persons to act as attorneys in the event that the grantor is deemed mentally incapable;
• Be signed and dated by the grantor (or someone on their behalf and direction if they are not physically capable of doing so); and
• Be signed by two witnesses who witnessed the signing of the POAPC.

The grantor may incorporate “wishes” or instructions regarding treatment or care into the POAPC. A “wish”, also known as an “advance directive”, is a treatment decision. It may be made orally or in writing, by a mentally capable person. It is binding on the attorney, as well as on the grantor in cases of emergency. An “instruction” is a decision regarding some aspect of personal care. It must be made in advance by a mentally capable person and may be relevant to ancillary issues such as hospitalization or placement. Wishes or instructions are legally binding only if they were made while the grantor was capable of making decisions regarding treatment or care.

Who can I name as my Attorney?

A grantor can name almost anyone as their attorney, including a family member or personal friend. The grantor should choose someone they trust and who has the ability to carry out the grantor’s wishes. A grantor cannot appoint someone as an attorney for personal care if the grantor pays them to provide services, unless the payee is also a spouse. Individuals under the age of 16 and those who are mentally incapable cannot be appointed as attorneys for personal care.

More than one person can be named as an attorney under a POAPC. If multiple attorneys are named, the POAPC should be clear as to whether attorneys must act together (jointly) or may act independently (jointly and severally). If there are more than two named attorneys, a POAPC should be clear as to whether a majority of them may act.

What types of decisions will my attorney be permitted to make?

Unless the POAPC includes specific restrictions, an attorney will be allowed to make almost any decision pertaining to the grantor’s personal life that the grantor could normally make themselves. Decisions about medical treatment, housing, visitors, attending religious services, food, hygiene and safety are examples of “personal care” decisions.

Important medical wishes are often included in a POAPC. The document might state that an individual does (or does not) wish to receive life-preserving treatment if they are in a vegetative state, or that no ‘heroic measures’ should be taken to keep the person alive.

If an individual is considering medical assistance in dying as part of their end-of-life care plan, they must be capable of making decisions with respect to their own health in order to meet the criteria for assisted dying. Accordingly, consent to medical assistance in dying cannot be provided by a substitute decision maker.

When will my POAPC come into effect?

A POAPC may only be used while the grantor is mentally incapable of making their own personal care decisions. The term “incapable of making personal care decisions” generally means that the grantor cannot understand the information that is relevant to that particular decision or cannot appreciate the results of making a specific decision.

Generally, it is up to the attorney to determine whether the grantor is mentally incapable, with some exceptions. Where a decision is required about medical treatment or admission to a long-term care facility, a healthcare professional must determine whether the grantor is incapable of making such decisions before the attorney can act. Moreover, the grantor can require that the attorney obtain independent evidence of their incapacity – such a letter from a doctor – before they are permitted to act on the grantor’s behalf.

Will my POAPC be recognized abroad?

When planning to move abroad, it is important to recognize that not all jurisdictions define mental capacity or treat POAPCs in the same way. Ideally, POAPCs should be obtained in the foreign jurisdiction to avoid any delays or potential issues in personal decision-making.

If a POAPC has not been created in the foreign jurisdiction, the Canadian POAPC may still be acceptable under certain circumstances. It is imperative to consult a TEP in that jurisdiction to ensure that the document complies with the local requirements for a POAPC.

What happens if I don’t make a POAPC?

If an individual becomes incapable of making personal care decisions without having a valid POAPC, a family member would ordinarily have the right to make most treatment decisions for them unless someone else is appointed. If there is no family member or representative who is able, capable or willing, the Public Guardian and Trustee of the jurisdiction of residence may make these decisions on the individual’s behalf.

In Canada, each province has its own laws dealing with substitute decision makers. The relevant statutes include:

• Ontario – The Substitute Decisions Act
• Quebec – Public Curator Act
• British Columbia – Health Care (consent) and Care Facility (Admission) Act
• Alberta – Personal Directive Act
• Saskatchewan – The Health Care Directives and Substitute Health Decision Makers Act
• Manitoba – Health Care Directives Act
• New Brunswick – Infirm Persons Act
• Nova Scotia – The Medical Consent Act
• Newfoundland and Labrador – The Advance Health Care Directives Act
• Prince Edward Island – Consent to Treatment and Health Care Directives Act
• Yukon – Care Consent Act
• Northwest Territories – Personal Directives Act

For further information or help preparing a POAPC, please consult a TEP.