What is a Power of Attorney?

A Power of Attorney (sometimes referred to in this article as the “ PA” ) allows a person (the grantor) to give to another person (the attorney) the power to make certain decisions on behalf of the grantor. Though the term “ attorney” implies a lawyer, a lawyer need not be the attorney. A Power of Attorney does not prevent the grantor from continuing to act for him or herself if he or she wishes. The changes in the law will now allow for two types of Powers of Attorney. “ The Continuing Power of Attorney for Property” (sometimes referred to in this article as “ CPAP” ) like the old Power of Attorney may deal with financial matters before and after a person is mentally incapacitated. This Power of Attorney will allow the attorney to do on the grantor’s behalf anything with respect to any type of asset that the grantor could do if capable except make a will. “ The Power of Attorney for Personal Care” (sometimes referred to in this article as “ PCPA” ) may deal with personal and medical decisions if one is mentally incapacitated. (In this article when I am dealing with either type I will simply refer to them as Powers of Attorney). The Personal Care Power of Attorney may also have a direction like a living will whereby one would direct that life support systems not be used if there is no reasonable prospect of recovery. A personal care power of attorney was not allowed under the previous law.

Though more sophisticated and different in form the new Continuing Power of Attorney for Property is essentially the same as the old Power of Attorney. There is no truth to the rumour that these older Powers of Attorney are invalid under the new law. They will always be valid. They are just not as sophisticated as they do not address some of the issues that the new legislation concerns itself with.

Why have a Power of Attorney?

As the Ontario Government’s marketing slogan for promoting Powers of Attorney states “ You Decide Who Decides” . Powers of Attorney allow one to appoint a designated individual or individuals to make the financial and now personal decisions that have to be made if that person becomes mentally incompetent and can not manage their personal affairs. Without Powers of Attorney either the government or a person you would not have chosen may be appointed to make those decisions. The Powers of Attorney allow one to make specific directions about finances, accommodations, and health issues including the important life support decision. Without Powers of Attorney perhaps different decisions will be made. Having Powers of Attorney ensures that government intervention is minimal. Legal and emotional costs are also reduced. I believe a misconception about the new law is the belief that the Government wants to control everyone’s life and wants to be involved in the decision making process of incompetent people. This is simply not true. A major change in the law will make it easier for the government to hand over to the appropriate person the job of managing the mentally incompetent’s financial affairs if that person being a patient in a psychiatric facility is certified unable to manage his or her own property. Unlike the present law, under the new law, this can be done without the need of a court order. A court order is still needed to be appointed for personal care decisions. A court order is also needed where there is no Continuing Power of Attorney for Property if the person is not capable of managing his or her own affairs and is not in a psychiatric facility.

Who may make a continuing Power of Attorney for Property?

A person must be over eighteen years of age to grant a Continuing Power of Attorney for Property. The Substitute Decisions Act, (hereafter referred to as the “ Act” ) states a person is capable of giving this power of attorney if a number of criteria are met. Those criteria are the person:

(a) knows what kind of property he or she has and the approximate value of it;
(b) is aware of obligations owed to dependants;
(c) knows the attorney will be able to do anything on the person’s behalf in respect of assets, except make a will and be subject to exceptions in the power of attorney;
(d) knows the attorney is required to account;
(e) knows the power of attorney may be revoked by the grantor;
(f) appreciates that unless the attorney manages the property prudently its value may decline;
(g) appreciates the possibility that the attorney could misuse the authority given to him or her. The test of granting a power of attorney is therefore not related to the ability to manage one’s financial affairs but in some regards a lesser test as outlined above.

What decisions have to be made when making a continuing Power of Attorney for Property?

• The Attorney: The main decision to be made is the selection of an attorney. The only legal requirement is that the attorney be over eighteen years of age. Obviously, 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 (jointly) or may act individually (severally). One is also allowed to appoint alternate attorneys in case the attorney appointed is not alive or unable to act as the attorney.
• Effective Date: The CPAP allows one to state when the CPAP comes into effect. It is recommended (and the usual practice) that the CPAP comes into effect immediately on signing the PA. The other alternative under the Act is to state that the CPAP comes into effect when the grantor is incapable. The grantor may set out the test of capacity. Such a test might be the obtaining of two doctors’ letters stating the grantor is not capable of managing his or her own affairs. If no test is set out, the Act states the assessment procedure. If the CPAP comes into effect upon signing then there will be no need for these procedures. If the grantor is worried that the attorney will use his or her powers before the incapacity of the grantor without the grantor’s knowledge then there is not enough trust to appoint that attorney in the first place.
• Compensation: The CPAP may state if the attorney may take compensation for work performed and if so how much. As the Government will be providing a fee schedule for attorneys it is recommended that CPAPs simply state that the government regulations govern the fees if any that will be taken. In most cases a relative appointed to be the attorney will not take compensation, but if he or she is doing considerable work then he or she should be compensated.
• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• 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.
• Instructions, Conditions and Restrictions: The PCPA may have very ernative under the Act is to state that the CPAP comes into effect when the grantor is incapable. The grantor may set out the test of capacity. Such a test might be the obtaining of two doctors’ letters stating the grantor is not capable of managing his or her own affairs. If no test is set out, the Act states the assessment procedure. If the CPAP comes into effect upon signing then there will be no need for these procedures. If the grantor is worried that the attorney will use his or her powers before the incapacity of the grantor without the grantor’s knowledge then there is not enough trust to appoint that attorney in the first place.
• Compensation: The CPAP may state if the attorney may take compensation for work performed and if so how much. As the Government will be providing a fee schedule for attorneys it is recommended that CPAPs simply state that the government regulations govern the fees if any that will be taken. In most cases a relative appointed to be the attorney will not take compensation, but if he or she is doing considerable work then he or she should be compensated.
• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA detailed instructions as to one’s personal care including specific directions as to medication and treatment.

Neither of the Powers of Attorney must be in a special form but the intention of the grantor must be made clear. The Government may publish a prescribed form. At this time the Government has published a recommended form. Lawyers and legal stationery companies are using that recommended form as a base and making their forms more sophisticated. The Government’s recommended PCPA does not include a living will clause.

Both types of Powers of Attorney must be in writing and signed in front of two witnesses. The following people may not be the witnesses - the attorney, the attorney’s spouse or partner, the grantor’s spouse or partner nor the child of the grantor (which includes though not blood related was treated like a child by the grantor), a person under 18 years of age, nor anyone under personal or property guardianship.

Must a lawyer draft the Power of Attorney?

A lawyer does not have to draft the Power of Attorney to make it valid. I would point out the following reasons why a lawyer should be involved in theill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA drafting and signing of the Powers of Attorney.

  The lawyer is doing much more than drafting the Power of Attorney. He or she is giving advice and answering questions as to what should be in Powers of Attorney and how they operate. This article or any government brochure can not cover every individual question. As the Powers of Attorney are a new area the interpretation of the law, precedent Powers of Attorney are continually changing. A lawyer will be more up to date with those changes than a government publication or store bought package. Presently most lawyer’s Powers of Attorney will be much more sophisticated than the government sample form. Many lawyers will at the time of signing the Powers of Attorney prepare affidavits of age and execution and will have notes on the capacity of the grantor so there will be less likely a challenge to the Powers of Attorney.

  The cost of the Powers of Attorney, especially if done at the same time as a will is generally not that expensive. For example, for an individual I charge a total of $85.00 for both types of Powers of Attorney; for both a husband and wife (or partner) without a will, the total cost is only $125.00 for the four documents. When done with a will, for an individual till not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA he cost is $50.00 and for a couple the cost is cost is $80.00.

  When can the Continuing Power of Attorney for Property be used?

  If upon its signing the CPAP becomes effective immediately (as recommended), then the attorney has authority to act immediately. If the grantor becomes a patient at a psychiatric facility and is certified as a person incapable of managing his or her own property then the Government’s Public Trustee and Guardian (PTG) becomes what is called the “ Statutory Guardian of Property” . However, the original attorney may apply to replace the PTG as the Statutory Guardian of Property. This application unlike the present law does not require a court application but a prescribed procedure whereby management plan for the property and an undertaking to act in accordance with the CPAP are filed.

  In some cases it might be necessary for the court to become involved to appoint the person responsible for managing the property of the incapable person. In that case a court appointed “ Guardian of Property “ is appointed. For instance, if the incapable person is not co-operative and does not accept the Statutory Guardian (as is that person’s right to refuse) then the court system must be used to apill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA point this Guardian of Property. Again, like the Statutory Guardianship, the original attorney may apply for this substitute decision maker’s job.

  When can the Personal Care Power of Attorney be used?

  The procedure for using a Personal Care Power of Attorney is different from the CPAP because unlike managing property the grantor of a PCPA will always make a personal care decision unless incapable of doing so.

  The PCPA may not be used to make a decision unless the attorney has reasonable grounds to believe the grantor is incapable of making that personal care decision after the attorney explained to the grantor the need for the decision, explained the decision the attorney intends to make and explained the right of the grantor to object to the decision; and after receiving such explanations the grantor does not object to the decision.

  The exceptions to this procedure occurs when there is a decision relating to medical treatments in which case a Personal Care Power of Attorney can (and should) specifically state the authority for the attorney to consent to treatment. Also there is a procedure for the Personal Care Power of Attorney to be validated.

  Validation is a procedure which must be used iill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA f the grantor objects to the attorney’s recommended decision. The attorney must apply to the Public Trustee and Guardian with the PCPA, with statements by two government authorized assessors stating the grantor is incapable in respect of some or all functions of personal care, and with a guardianship plan. A government authorized advocate also meets with the grantor to explain the grantor’s rights and the effect of a validation.

  The court may appoint a “ Guardian of the Person” if the grantor is not cooperative in the validation process or refuses to accept the validation. The court will also have to be used when there is not a Personal Care Power of Attorney in existence or the attorney is unable or incapable of acting as the attorney. There is no concept of a Statutory Guardianship for personal care as there is for property.

  When is a Power of Attorney Terminated?

  The Continuing Power of Attorney for Property is terminated when the attorney dies, becomes incapacitated or resigns and there is no joint or alternate attorney; when the grantor dies (at which time the executor of the will takes over); when, as discussed, the Ontario Government’s Public Trustee and Guardian becomes the statutory guarill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA dian because the grantor being a patient at a psychiatric facility is certified as a person incapable of managing his or own property; when, as discussed, the court appoints a guardian of property because the grantor is incapable of managing his or her own affairs; when a new CPAP is made (unless it allows for multiple CPAPs); or when the CPAP is revoked in writing. This revocation must be done in the same way as when the CPAP was originally made.

  The Personal Care Power of Attorney is terminated when the attorney dies, becomes incapacitated or resigns unless there is a joint or alternate attorney; when the court appoints a Guardian of the Person for the grantor, as discussed; when a new PCPA is made provided the previous PCPA has not been validated, as discussed; when the PCPA is revoked in writing in the same way as when originally made.

  What are the duties and rights of the Attorney under a Continuing Power of Attorney for Property?

  An attorney is to act honestly and diligently for the grantor’s benefit. New obligations under the Act for an attorney are to explain to the incapable person what the attorney does, to encourage the incapable person’s participation, to foster regular personal contact bill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA etween the incapable person and his or her family and friends and to consult with the family and friends and the persons from whom the incapable person receives personal care. There is also the important obligation to keep accounts of all financial transactions. Unless court appointed as the Guardian of Property financial statements need not be annually filed.

  The attorney is obligated to make expenditures that are reasonable and necessary for the grantor’s care and the care of the grantor’s dependants and to others whom the grantor has a legal obligation. The Act allows the attorney to take compensation for the work done in accordance to the Government’s prescribed rate of compensation.

  What are the duties and rights of the Attorney under a Personal Care Power of Attorney?

  An attorney is to act diligently and in good faith. Again the attorney is to explain to the incapable person what the attorney does and to encourage participation of the incapable person as well as that of family and friends. The attorney is to foster contact with family and friends and to meet with them. The attorney is to follow the wishes of the incapable person that were expressed while capable. If the Personal Care Powerill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?

• The Attorney: The attorney must be at least sixteen years of age. A person may not act as attorney if that person (unless that person is the spouse, partner or relative of the grantor), provides health care to the grantor for compensation or provides residential, social, training, advocacy or support services to the grantor. Alternate attorneys may be made. When there is more than one attorney whether the attorneys act jointly or severally must be stated.
• Consent to Treatment: The PCPA may state and should state that the attorney may give or refuse consent to treatment under which the Consent To Treatment Act, 1992 applies. This is needed in case emergency treatment is indicated or needed.
• Living Will Clause: Rather than having a separate document the PCPA of Attorney was validated then the attorney has the obligation of following the guardianship plan filed. Also, if validated the attorney must file annual reports which would include a discussion of what decisions were made during the year.

  There is no specific discussion in the Act about compensating the Attorney. By agreement between the grantor and the attorney or by a direction from the grantor when competent perhaps compensation could be set if appropriate. As attorneys have the right to apply to court for directions perhaps compensation will be set if the court believes it is appropriate to do so. Certainly looking after someone’s personal affairs is as important as looking after their financial affairs and compensation is allowed for financial matters.

  Conclusion

  The Province of Ontario has created a new improved system for Powers of Attorney. It will take time for this new law to be in practice before new issues and problems appear. There will probably be changes made by the Government and new precedents developed by lawyers to deal with these issues. One should not wait however to arrange for Powers of Attorney. Having updated Wills and Powers of Attorney will give “ peace of mindill not take compensation, but if he or she is doing considerable work then he or she should be compensated.

• Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.
• Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney’s use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

A person must be sixteen years of age to grant a PCPA. The Act states that 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 Power of Attorney for Personal Care?