Power Of Attorney for Personal Care
Frequently Asked Questions
Who Can Be Appointed?
You can appoint anyone as your attorney for personal care except someone who is paid to provide health care or residential, social, training, or support services to you, unless that person is also your spouse, partner, or relative.
When are Persons Incapable of Deciding about Personal Care?
Persons are incapable of personal care decisions either if they do not understand what is relevant to their health care, nutrition, shelter, clothing, hygiene, or safety or if they cannot appreciate the consequences of making or not making a decision.
Can I appoint more than one attorney for personal care?
You can name two or more attorneys for personal care, and they can act jointly (they must all agree on a decision) unless you say otherwise (you can say “jointly and severally” which means they can agree if all are present, or if they are not available one of them can make a decision). If one of your attorneys dies, becomes incapable, or resigns, unless you say otherwise, the remaining attorney can act alone. You may include instructions, conditions and restrictions in the power of attorney.
How Should My Power of Attorney for Personal Care be Signed?
You must sign your attorney for personal care in front of two witnesses. The following people cannot be a witness: your child, your spouse or partner, your attorney and his or her spouse, or someone under 18 years-of-age.
When can my Attorney for Personal Care Begin to Make Decisions for Me?
Your attorney can begin making personal care decision for you if you become incapable of making them yourself or if your attorney reasonably believes that you are incapable of making the decisions.
Can my Attorney Resign?
Your attorney may resign. If your attorney has already acted under the power, he or she must notify you (the grantor), any other attorneys named in the power of attorney, the substitute attorney if named, and if there is no substitute attorney who is willing to act (unless the power says otherwise) your spouse or partner and relatives known to your attorney who live in Ontario. Your attorney must also notify those with whom he or she has been acting on your behalf and with whom further dealings are likely.
When Does My Power of Attorney for Personal Care End?
It ends if your attorney resigns, becomes incapable, or passes away, unless there is either another joint attorney or a substitute attorney. It also ends if you execute a new power of attorney for personal care, unless you provide that there shall be multiple powers of attorney for personal care. It also ends if the court appoints a guardian of your person.
What about Decisions that are Not Regarding Medical Treatment, Admission to a Care Facility, or Personal Assistance Services?
If there is a decision about your personal care that you cannot make because you are incapable, your attorney for personal care can make the decision in accordance with your wishes or instructions you made while capable. This means that the attorney should try to find out whether you made any such wishes or instructions.
What Records Does My Attorney for Personal Care Keep?
Your attorney is required to keep these records:
- a copy of the power of attorney for personal care;
- a list of the decisions regarding your health care, safety, and shelter, with the nature of each decision;
- a copy of medical reports or other documents, if any, relating to each decision;
- the names of any persons consulted regarding each decision and why they were consulted;
- a description of your wishes, if relevant to each decision, that you expressed when capable, and the manner in which they were expressed;
- a description of your current wishes, if ascertainable and if relevant to the decision;
- the attorney’s opinion on each of these factors for every decision taken: Is the decision likely to improve the quality of your life, or will it prevent the quality of your life from deteriorating? Or is the decision likely to reduce the rate of deterioration of the quality of your life? Will the benefit you are expected to obtain from the decision outweigh the risk of harm to you from an alternative decision?
Your attorney must keep these records until one of the following: he or she ceases to have authority and obtains a legal release; another person acquires authority to make decisions regarding your personal care and your attorney gives the records to that person; or if you die and your attorney gives the records to your estate’s personal representative; or on a court order.
If asked, your attorney is to give a copy of the records to you and to your attorney for property.
How Can I express My Treatment Wishes?
You can do this orally or in writing. Some people write down their wishes in a “living will.” Others include them as part of their power of attorney for personal care.
What Happens if I Become Incapable and Have Not Appointed an Attorney for Personal Care?
As described above, another substitute decision-maker can refuse or give your consent to medical treatment, admission to care facilities, and personal assistance services. For other personal care decisions, someone, such as a relative, can apply to the court to be appointed the “guardian of your person.”
What Can I do If I Believe that an Attorney is Acting Improperly?
You, or someone else, can apply to the court to replace that attorney for personal care with a court-appointed guardian of the person.
Who Looks After My Finances If I Become Incapable?
If you become a patient of a psychiatric-wing in a hospital, a doctor must examine you to determine whether you are capable of managing your property. If you are not such a patient, a government assessor can be asked to do an assessment, but, before doing so, reasonable inquiries must first be made to determine whether you have a continuing power of attorney that covers all of your property, and whether your spouse, your partner, or a relative intends to apply to the court for guardianship.
If you are incapable and you do not have a power of attorney for property, and if no family member will apply to be your guardian of property, the government Public Trustee and Guardian will manage your property.