Power of Attorney for Personal Care

Posted on By admin
elderly man with wife or carer and cup of tea

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.

What is a Power of Attorney?

Posted on By Joanna Pegum
Senior couple paying bills

A Power of Attorney (or “POA”) is a legal document by which an individual gives someone they trust (the “attorney”) the right to make decisions on their behalf if they are no longer capable of looking after their own matters. This authority may be general in nature or limited to specific actions and situations.

This article focuses on the general options available for creating a POA in Canada for provinces other than Québec. For information regarding Québec, please see the article “Incapacity Planning in Québec”. The specific rules for each province vary; please contact a TEP to discuss the rules in your province of residence.

Why have a Power of Attorney?

In personal and estate planning, a POA is generally executed when contemplating the possibility of future physical and/or mental incapacity that renders the grantor incapable of making his or her own decisions. While creating a POA is voluntary in that there is no law mandating that everyone must create one, all individuals over the age of 18 who are competent to grant a POA should consider executing one. In the event of unexpected incapacity, a POA will ensure that a person’s wishes are respected, and that carrying these wishes out is easier and less expensive for their families.

Types of Power of Attorney

Generally, there are two main types of POAs:

  1. A continuing or enduring Power of Attorney for Property (POAP) covers financial affairs, such as managing investments, granting gifts, or borrowing money. For more information, see “I have been given Power of Attorney. What does that mean?”
  2. A Power of Attorney for Personal Care (POAPC) (also known as a “Personal Directive”) covers personal decisions, such as housing and health care. For more information, see “I have been given Power of Attorney. What does that mean?”

How to properly execute a Power of Attorney

The law does not require the use of a lawyer’s services to create a POA. However, individuals with even modestly complicated affairs are generally advised to consult a lawyer to ensure that the POA is neither too broad nor too specific, and that the document is executed properly. A POA can be created in a few different ways:

  1. A lawyer can draft a POA; or
  2. A grantor can use online forms provided by reputable sources (such as forms made available by the Attorneys General for the applicable province).

Generally, a valid POA must:

  1. Name the person the grantor has chosen to act on their behalf;
  2. Be signed and dated by the grantor; and
  3. Be signed and dated by two witnesses who saw the grantor signing the document.

The witnesses to a POA typically cannot include:

  • A grantor’s spouse, partner, child or someone treated by the grantor’s child;
  • The person the grantor is naming as attorney or the spouse of that person;
  • Anyone under 18 years of age; or
  • Anyone who is incapable of making their own property or personal care decisions.

Generally, there is also no requirement that these documents be registered. However, it is important to ensure that the people who need to know about the document – especially the attorney(s) – have a copy of the POA or know where to get one if needed.

What happens if there is no Power of Attorney?

In the event that an individual who does not have a valid POA is or becomes incapacitated, a family member has the right to make health care decisions or apply to become the “guardian” of their person and/or property (the person occupying this role is also known as a “trustee” or a “committee”, depending on the jurisdiction). In certain cases, someone else, such as a close friend, could apply to act for the individual in these matters. The only time the provincial government, through the office of a Public Guardian and Trustee, will act, is in situations where there is no suitable person able or willing to act on behalf of the incapacitated person.

For further information or assistance in preparing a POA please consult a TEP.

The risks of not making a will

Posted on By admin
worried woman

Making a will can seem like an unpleasant or dreary task to be put off indefinitely. However, there are serious implications for the loved ones of someone who dies intestate (without a will). This article highlights some of the consequences associated with not preparing a will.

1. Your estate will be distributed under the rules of intestacy

A person who dies without a will is considered to have died “intestate”. Legally speaking, an intestate person has left no instructions as to how they wish for their assets to be divided and distributed on their death. In such circumstances, provincial legislation governs how property will be distributed amongst surviving relatives. Typically, these rules indicate that if a married person dies, an initial lump sum amount will be left to their spouse, plus a portion of the residue of the estate (the amount depends on whether there are any children of the deceased). If there are children, the residue is divided proportionately between any children and the surviving spouse. Where there are no children or spouse, the estate generally goes to the next of kin.

2. There is no opportunity to appoint guardians for minor children

One of the most important aspects of a will is appointing a guardian to look after minor child in the event of an untimely death. In the event all of the legal guardians of a child pass away without leaving wills, a Court Order will be required to select a guardian for the child. In the absence of such an order, the applicable provincial government would become involved.

3. There is no named executor

An executor is typically named when a person prepares their will. An executor is someone who is trusted to administer the estate according to the deceased’s wishes. However, if there is no will, there is also no appointment of an executor. As such, someone must apply and be appointed to act as administrator of the estate, which may result in delay, expense and frustration for family, friends and loved ones.

Other potential implications of not creating a will include:

  • Stepchildren and, in some jurisdictions, unmarried partners will likely be discounted from the estate;
  • Families may face additional administrative burdens which add to suffering at an already difficult time;
  • Familial disputes may arise; and
  • Expensive legal action may be required to resolve complications.

There are many risks associated with not preparing a will. As such, it is crucial that everyone prepare a will, preferably with the assistance of an experienced professional who can ensure that it is done properly.

For further information or assistance with drafting a will, please consult a TEP.