POWERS OF ATTORNEY FOR PERSONAL CARE

 

WHAT IS A POWER OF ATTORNEY FOR PERSONAL CARE?

A Power of Attorney for Personal Care (hereinafter referred to as PCPA), allows a person (Athe grantor@) to give to another person (Athe attorney@), the power to make personal and medical decisions if the grantor is mentally incapacitated. The PCPA can allow the grantor to direct (like a living Will)  that life support systems not be used if there is no reasonable prospect of recovery.

 

WHY HAVE A PCPA?

The PCPA allows one, in case of their incapacity, to appoint the person he or she wishes to make almost any decision of a personal nature that one would make if capable, such as decisions related to medical treatment, housing and food.

 

WHO MAY MAKE A PCPA?

A person must be sixteen years of age to grant a PCPA.  A person is capable of granting a PCPA if that person has the ability to understand that the proposed attorney has a genuine concern for the person's welfare and appreciates that the proposed attorney may need to make decisions for him or her.  The test is not that the grantor is capable of personal care.

 

WHAT DECISIONS HAVE TO BE MADE WHEN MAKING A PCPA?

(a)        Choosing the Attorney: The only legal requirement is that the attorney be over eighteen years of age.  It should be someone the grantor trusts.  More than one attorney may be appointed.  In that case the grantor must decide whether the attorneys must act together or may act individually.  One is also allowed to appoint alternate attorneys in case the attorney appointed is not alive or unable to act as the attorney.

 

(b)        Living Will Clause:  Rather than having a separate document the PCPA may be used to express one's wishes concerning the use of life support systems when there is no reasonable expectation of recovery from a severe disability.

 

(c)        Instructions, Conditions and Restrictions: The PCPA may have very detailed instructions as to one's personal care including specific directions as to medication and treatment.

 

WHEN WILL THE PCPA COME INTO EFFECT?

The PCPA is different from the Continuing Power of Attorney for Property in that it can only be used during the time that the grantor is mentally incapable of making his or her own personal care decisions.  The attorney decides whether the grantor is mentally incapable.  A grantor can state that the attorney is required to get independent evidence before acting, such as a letter from a doctor.  An attorney only makes the decisions that the grantor cannot make.  Therefore, not all personal care decisions are made by the attorney and some should be made by the grantor.

 

WHAT ARE THE DUTIES OF AN ATTORNEY OF A PCPA?

An attorney must act diligently and in good faith.  An attorney is to explain to the incapable person what the attorney does and to encourage participation by the incapable person, as well as participation by family and friends.  An attorney should foster contact with family and friends and to meet with them.  The attorney should follow the wishes of the incapable person that were expressed while capable.

HOW IS THE ATTORNEY FOR THE PCPA COMPENSATED?

Unfortunately, there is no specific discussion in the Substitutes Decisions Act about compensating an attorney.  The PCPA could set out compensation but it is not common to do so, though it can set out that the attorney is reimbursed for actual expenses.

 

WHAT FORM MUST THE PCPA BE IN?

There is not a requirement that a specific form be used, simply that the intention of the grantor must be clear.  The PCPA must be in writing and signed in front of two witnesses. Certain people may not be witnesses such as the attorney, the attorney=s spouse or partner, the grantor=s spouse or partner, a child of the grantor (which includes a non-blood related person who is treated as a child by the grantor), a person under eighteen years of age, nor anyone under personal or property guardianship.

 

There is no requirement that the PCPA be registered.  There is no Government registry.  A lawyer does not need to draft the PCPA to make it valid, however, the lawyer generally is doing much more than drafting the PCPA.  He or she would be providing advice as to how the PCPA operates.

 

WHEN IS A PCPA TERMINATED?

The PCPA is terminated when the grantor dies or when the grantor makes a new PCPA.  The PCPA is terminated when the attorney dies, becomes incapacitated or resigns and there is no joint or alternate attorney.

 

FURTHER INFORMATION

The Ontario Government=s web site at www.attorneygeneral/gov.on.ca has powers of attorney kits and further information.

 

 

 

 LAWRENCE S. PASCOE

 

*           This article can only provide a general overview of a legal topic.  Readers should consult a lawyer and not simply act on the information provided in this article.

 

**         Copyright Lawrence S. Pascoe, January 2004