Why You Should Have a Power of Attorney for Personal Care

Posted by Steve Jones

Sat, Oct 11, 2014

One of the questions we are frequently asked is, “Do I need a Power of Attorney for Personal Care? And why?” Our answer is a resounding “Yes,” and there are lots of reasons for it. First, let’s look at what it is.

A Power of Attorney is a legal document that gives another person (called a substitute decision maker or attorney) the right to make decisions for you in the event you become unable to make those decisions for yourself. In Canada, an attorney is not usually a lawyer, just the person whom you designated to make decisions for you. In Ontario there are three kinds of Power of Attorney:

• General Power of Attorney for Property
• Continuing Power of Attorney for Property
• Power of Attorney for Personal Care (PAPC)

Powers of Attorney for Property allow your attorney to make decisions regarding finances and personal property. A Power of Attorney for Personal Care allows your attorney to make decisions about medical treatment, as well as non-medical issues such as housing, diet, and personal assistance.

What benefits you get from having a PAPC:

• You choose your substitute decision maker, not your family, your doctor, or the courts. This person is required to make decisions for you based on what is in your best interest. You can also choose multiple individuals or a succession of people if your first choice is unable or unwilling to be your attorney.
• You can state your wishes for certain situations, for instance: what medical treatments you wish to have or reject, such as life support or resuscitation; that you wish to remain in your house for as long as possible, rather than going into a long-term care facility, that you prefer to die at home rather than in a hospital.
• Your attorney and health care providers must abide by your stated wishes if at all possible. If you do not specify your wishes, your attorney can make the decision that they feel is best for you; but even when your stated wishes do not apply to a situation, your attorney must consider your values and beliefs and whether a course of action will improve your quality of life.
• You get to name the person who decides if you are mentally incapacitated (your doctor, another health professional, or even your best friend). If you prefer, you can state that it must be a certain type of professional, such as a psychologist, social worker or MD, or if you do not name an individual or profession, it will be confirmed by a capacity assessor trained to determine mental incapacity.
• If you do not have a PAPC, the Health Care Consent Act allows a substitute decision maker to make decisions for medical treatment, admission to a care home, and personal assistance services. This SDM must be one of the following, and will be chosen in the order given:
  1. Your representative, someone appointed by the Consent and Capacity Board. Anyone can apply to become your representative.
  2. Your spouse or partner
  3. Your child over the age of 16
  4. Your parent
  5. Your sibling
  6. Another relative
  7. The Office of the Public Guardian and Trustee

If you become mentally incapacitated and do not have a PAPC, the court can authorize a Guardian of the Person to make decisions for you. Without a PAPC, the choice is in the hands of the court. If you have appointed an attorney through a PAPC and that person is acting in your best interest, there is no need for the court to appoint a Guardian for you, and the choice remains yours.

For legal advice about a Power of Attorney for Personal Care, contact a lawyer. If you just want to discuss your options with someone who deals with this issue in a number of situations, call us at 647-496-6268. Were happy to help.