Although we live in a world of extraordinary medical advances, there is still a very real possibility that you may, as a result of disease or accident, become incapable of managing the every day aspects of your life – where you will live, medical treatment and healthcare, nutrition, shelter, clothing and so forth. By making a Power of Attorney for Personal Care you can appoint one or more persons, usually family members, to look after your personal care in the event of illness, injury, or mental incapacity.
In the event that you become incapable and you have not appointed an attorney for personal care, your loved ones will have no choice but to commence a lengthy and costly court proceeding to appoint a guardian for you. A Power of Attorney is an invaluable planning tool and the importance of planning ahead cannot be understated. However, a Power of Attorney must be made while you are capable of making these decisions.
If you have not yet appointed an Attorney for Personal Care to make personal care decisions on your behalf if you are unable to, we recommend that you take the time to put your affairs in order. If you already have a Power of Attorney for Personal Care you should review it at the same time you review your Last Will and Testament to ensure that the person(s) you have chosen are still in accordance with your wishes and current circumstances.
The purpose of this article is to explain the role of an Attorney for Personal Care and to outline his or her obligations to the appointee. Pursuant to the Substitute Decisions Act, 1992 and case law, the Attorney for Personal Care is subject to a variety of duties and responsibilities imposed by statute when making personal care decisions for another person.
Role and Authority of the Attorney for Personal Care
Unless you restrict your attorney’s powers, the role of your Attorney for Personal Care is to step into your shoes and make decisions on any or all of the decisions regarding your health care, nutrition, shelter, clothing, hygiene and safety that you are incapable of making on your own behalf. You may also provide specific instructions in the Power of Attorney for Personal Care regarding specific decisions that you may want made in certain circumstances and your attorney is bound to make decisions in accordance with these wishes. For example, with regard to decisions about your shelter, you may want to specify that your attorney must keep you in your home for as long as possible. It is also very common for the grantor to provide instructions about health care and various treatment options in the event of illness, especially regarding the termination or continuation of medical treatment in the case of terminal illness. Even if you didn’t provide written instructions but told people your wishes when you were capable, your attorney is obligated to use reasonable diligence to ascertain your wishes.
You may appoint any person as your Attorney for Personal Care who is at least 16 years of age and mentally capable. You may also appoint more than one person, but if you do all attorneys will have to agree on every decision that is made for you unless they are appointed “jointly and severally”, which enables any one of the attorneys to make decisions on their own. To protect against potential abusive situations, the law provides that you cannot appoint someone who you pay to provide services to you, unless that person is a relative.
When Does a Power of Attorney for Personal Care Take Effect?
A Power of Attorney for Personal Care takes effect only if you become mentally incapable of making some or all of your personal care decisions. For example, if you become mentally incapable of making decisions about health care but can still make decisions about other personal care matters, such as housing, you would still have the right to make your own decisions with respect to those matters.
“Incapable of making personal decisions” means that you cannot understand the information that is relevant to the particular personal care decision or can’t appreciate what could happen as a result of making (or not making) a certain decision.
Generally your attorney would decide if you are mentally incapable of making personal care decisions unless you name someone else in your power of attorney, with a few exceptions. If the decision is about medical treatment or admission to a long-term care facility, a health professional must determine whether you are incapable of such decisions before your attorney may act. You may name a specific person, such as a family doctor or a family friend, or you may name a class of persons, such as a qualified capacity assessor or psychologist. If your attorney thinks you are incapable, they must arrange for that person to assess you and confirm your incapacity.
The Main Duties of the Attorney for Personal Care
If you choose not to provide any specific instructions, your attorney must make decisions according to what he or she believes is in you best interests. In deciding what is in your best interests your attorney must take into consideration the values and beliefs that you held when you were capable, your current wishes and whether the decision is likely to improve your quality of life or prevent the quality of your life from deteriorating and if the decision is likely to reduce the rate at which your quality of life is likely to deteriorate.
In addition, duties of attorneys for personal care include the duty to:
- act diligently and in good faith;
- as far as possible, try to foster the person’s independence;
- choose the least restrictive and intrusive course of action that is available and appropriate;
- encourage the person to participate, to the best of his or her abilities, in personal care decisions about themselves;
- seek to foster regular personal contact between the incapable person and supportive family members and friends; and
- to consult from time to time with supportive family and friends who provide personal care for the person.
Cancelling an Attorney For Personal Care
You may cancel a Power of Attorney for Personal Care as long as you are mentally capable of making a Power of Attorney for Personal Care. In order to do so, you must state in writing that you revoke it and two people must witness you signing the statement. Also, if you make a new Power of Attorney for Personal Care, all other existing Powers of Attorney that you have made before are automatically cancelled, unless the new one says otherwise.
Direction from the Court
If an attorney has any question regarding your personal care, he or she may apply to the Court for directions on how to resolve the issue and the Court will give directions as to what it considers to be beneficial to you. In addition to cases involving genuine ambiguity, the ability to apply to the Court for directions often provides a means to resolve disputes which may arise about your care. Such an application should be brought with the assistance of a lawyer.
The information contained in this article is for general information only and is not intended as legal advice or opinion. Should you require any advice or assistance with this or any other issue affecting your estate or business, then please do not hesitate to contact us.
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