POAPC Archives

My parents have dementia – how can I help them?

Posted on January 13, 2020March 22, 2023 By admin

If a parent becomes or may become mentally incapable of managing their own affairs, there are a few options to consider. The following information may be helpful if your parent(s) have been diagnosed with dementia or are experiencing the early onset of this disease. Please note that this article gives general information for provinces other than Québec. For information regarding Québec, please see the article “Incapacity Planning in Québec”.

Appointing a Power of Attorney for Property (POAP)

The role of someone appointed under a POAP is to step into the shoes of an incapable individual for the purpose of making financial decisions that they can no longer make for themselves. The purpose of a POA is to protect the interests and welfare of the individual who appointed the attorney.

An individual who has been appointed under a POAP can manage the grantor’s financial affairs and make legal decisions with respect to physical assets. Unless the grantor restricts these powers, the attorney will be able to do almost anything that the grantor can do concerning finances. They can sign documents, start or defend a lawsuit, sell property, make investments and purchase things for the grantor. However, under a POAP, an individual cannot make or change an existing Will, change beneficiaries on a specific insurance product or transfer their duties under the POAP to someone else.

Appointing a Power of Attorney for Personal Care (POAPC)

A POAPC is a legal document that gives an individual (the attorney) the power to act on someone else’s behalf by making personal care decisions. If an attorney has been appointed, they will be legally capable of dealing with the affairs of someone who is incapable of making their own such decisions. Unless the attorney’s powers are restricted, they will be able to make almost any decision pertaining to the incapacitated individual’s personal life, including choices as to medical treatment, housing, food, and other care. The PAPC will come into effect only when an individual is deemed mentally incapable of making their own personal care decisions.

It is possible that an incapacitated parent has already created a POAPC without the knowledge of one or more of their children. Inquiries should be made to legal advisors to determine whether a POAPC has been signed. If there is no pre-existing Power of Attorney, it may still be possible for a parent who is experiencing the early onset of dementia to execute one, so long as there is still sufficient mental capacity to do so.

If an individual becomes incapable of making personal care decisions, and they have not appointed an attorney for personal care, a family member will automatically have the right to make decisions on the individual’s behalf, unless someone else is appointed. A Court may appoint a guardian to make decisions on behalf of an incapable person for some or all aspects of personal care.

Become a guardian

If a parent becomes or may become mentally incapable of managing their own affairs, there are a few options to consider. The following information may be helpful if your parent(s) have been diagnosed with dementia or are experiencing the early onset of this disease. Please note that this article gives general information for provinces other than Québec. For information regarding incapacity planning in Québec, please see the article “Incapacity Planning in Québec”.

Appointing a Power of Attorney for Property (POA)

The role of someone appointed under a POA is to step into the shoes of an incapable individual for the purpose of making financial decisions that they can no longer make for themselves. The purpose of a POA is to protect the interests and welfare of the individual who appointed the attorney.

An individual who has been appointed under a POA can manage the grantor’s financial affairs and make legal decisions with respect to physical assets. Unless the grantor restricts these powers, the attorney will be able to do almost anything that the grantor can do concerning finances. They can sign documents, start or defend a lawsuit, sell property, make investments and purchase things for the grantor. However, under a POA, an individual cannot make or change an existing Will, change beneficiaries on a specific insurance product or transfer their duties under the POA to someone else.

Appointing a Power of Attorney for Personal Care (PAPC)

A PAPC is a legal document that gives an individual (the attorney) the power to act on someone else’s behalf by making personal care decisions. If an attorney has been appointed, they will be legally capable of dealing with the affairs of someone who is incapable of making their own such decisions. Unless the attorney’s powers are restricted, they will be able to make almost any decision pertaining to the incapacitated individual’s personal life, including choices as to medical treatment, housing, food, and other care. The PAPC will come into effect only when an individual is deemed mentally incapable of making their own personal care decisions.

It is possible that an incapacitated parent has already created a PAPC without the knowledge of one or more of their children. Inquiries should be made to legal advisors to determine whether a PAPC has been signed. If there is no pre-existing Power of Attorney, it may still be possible for a parent who is experiencing the early onset of dementia to execute one, so long as there is still sufficient mental capacity to do so.

Become a Guardian

A ‘Guardian of Property’ (also known as a “Trustee” in some provinces) is a person who is appointed to manage the financial affairs of an individual who is mentally incapable of doing so themselves. A Guardian may be appointed one of two ways:

(1) By a provincial Public Guardian and Trustee, or

(2) By a Court.

A Guardian of Property can do almost anything the incapable person could do in relation to their property. This may include collecting and depositing income, paying bills, making purchases and looking after legal matters. However, a Guardian of Property cannot make or change a Will.

A ‘Guardian of the Person’ (also known as a “Committee” in some provinces) is an individual authorized by the courts to make personal decisions for someone who is mentally incapable of doing so themselves. Generally, a Court will not appoint a Guardian of the Person if someone has been appointed under a Power of Attorney for Personal Care.

For legal advice with respect to becoming a Guardian of Property or a Guardian of the Person, please contact a TEP.

Other Options

Another option to consider under certain circumstances is a limited ‘trusteeship’. The administrators of some government benefits such as Canadian Pension Plan or Old Age Security can appoint a “trustee” to manage income on behalf of a recipient who has been deemed mentally incapable. This option is not appropriate for a recipient who also receives income from other sources, or has assets or legal matters that require management.

For further information and help planning for family members with dementia please consult a TEP.

Power of Attorney for Personal Care

Posted on January 13, 2020March 22, 2023 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:

The need to choose an attorney who has a genuine concern for the grantor’s welfare, and
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.

I have been given Power of Attorney. What does that mean?

Posted on January 10, 2020March 22, 2023 By admin

Outside of Québec, the role of someone appointed under a Power of Attorney (POA) is to step into the shoes of an incapable individual for the purpose of making financial decisions and/or personal care decisions that they can no longer make for themselves. The purpose of a POA is to protect the interests and welfare of the individual who appointed the attorney.

For information regarding incapacity planning in Québec, please see the article Incapacity Planning in Québec.

The duties of the attorney are outlined in the POA legal documents. Generally, the attorney will be able to do everything that the grantor can do with respect to their personal matters, unless they are explicitly restricted from doing so.

The nature of the role will depend on the type of POA which has been executed. Generally, there are two main types of POA appointments:

Power of Attorney for Property (POAP)

Power of Attorney for Personal Care (POAPC) (also known in some jurisdictions as a personal care directive)

Appointed as Power of Attorney for Property (POAP)

An individual will be able to assume responsibilities under a POAP as soon as it is signed and witnessed, unless the document says otherwise. An attorney is required to keep the grantor’s financial information confidential and should respect the grantor’s privacy unless: (1) the grantor specifically authorizes them to disclose information by saying so in the POAP; or (2) they need to disclose this information to carry out their duties or to abide by the law.

When carrying out their obligations under a POAP, an attorney is generally entitled to take payment from the grantor’s funds at a rate specified by law, which varies by province, unless the grantor states otherwise in the document. An attorney is also required to provide the grantor with a full accounting whenever asked.

Appointed as Power of Attorney for Personal Care (POAPC)

An individual appointed under a POAPC is responsible for managing the personal care and health care decisions of the grantor. With regard to personal care, they may make decisions pertaining to housing, diet, personal hygiene and social life. With respect to health care, they may make decisions regarding medical treatment or the withholding of such treatment. Under a POAPC, the attorney can only make decisions about those aspects of personal care that the grantor cannot make themselves.

Unlike a POAP, a POAPC may only be used during a time that the grantor is mentally incapable of making their own personal care decisions. The attorney is typically responsible for deciding whether the grantor is mentally incapable, with a few exceptions (such as if specified otherwise in the PAPC).

An attorney appointed under a POAPC is also required to keep the grantor’s personal information confidential. As with a POAP, the grantor’s privacy should be respected unless: (1) the grantor specifically authorizes them to disclose information by saying so in the POAPC; or (2) they need to disclose this information to carry out their duties or to abide by the law.

In some instances, a grantor may include “advance directives” in their POAPC. Advance directives are more commonly known as “wishes” and they serve to provide personal instructions to attorneys about the grantor’s personal preferences regarding personal care and health care. An attorney is legally obligated to follow these wishes, if possible.

If you have been appointed under a Power of Attorney and/or have any additional questions please consult a TEP.