Powers of Attorney for Personal Care - Episode #153
Listen to Powers of Attorney for Personal Care
This week on Hull on Estates Diane Vieira and Natalia Angelini discuss powers of attorney for personal care.They refer to a Mark Handelman's paper Power of Attorney for Personal Care: Fries with that Will? on the subject. They point out that even though powers of attorney often garners less attention that they should still be carefully thought out.
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Powers of Attorney for Personal Care - Episode #153
Posted on March 11th, 2009 by Hull & Hull LLP
Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #153 on Wednesday, March 11, 2009.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Diane Vieira: Hi and welcome to another episode on Hull on Estates. I’m Diane Vieira.
Natalia Angelini: And I’m Natalia Angelini.
Diane Vieira: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. You can e-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Natalia Angelini: So hi Diane, how are you today?
Diane Vieira: I’m good, how are you?
Natalia Angelini: Not bad. I’m happy this is our first time podcasting together.
Diane Vieira: Yes.
Natalia Angelini: Should be fun. We’re dealing with a topic that doesn’t, I think, get enough attention and that’s Powers of Attorney for Personal Care.
Diane Vieira: Yes. We’re going to be referring to a paper that I saw presented by Mark Handelman.
Natalia Angelini: Yeah, that’s right. And it’s a great paper. It’s really comprehensive. You can find it…
Diane Vieira: Through the Ontario Bar Association.
Natalia Angelini: Right. So let’s start. Powers of Attorney for Property have certainly been dealt with extensively, I think, in our podcasts as well as our blogs. And you know, there’s often disputes dealing with an attorney’s activities with respect to that power. But with respect to Powers of Attorney for Personal Care, they seem to garner less attention and perhaps have been the subject of less disputes but they are nonetheless a really important instrument. And they’re really crucial in the sense that, you know, your client is essentially entrusting his or her liberty, security and well-being to their attorney.
Diane Vieira: Yes. Usually the Power of Attorney for Personal Care is…some solicitors treat it as an after thought. The property is what’s important because that’s your money. But your personal care decisions, you’re choosing the person who’s going to decide if you get admitted to a care facility, if you have to make those important decisions when it comes to your health care. And with that in mind, more solicitors and more people have to consider who they want to be their attorney for personal care.
Natalia Angelini: Right. I think one of our messages today is that rather than a sort of after thought document that gets added to your Will and attorney package, it really should be carefully thought out.
Diane Vieira: When looking at Powers of Attorney for Personal Care, you want to look at Section 41 of the Substitute Decisions Act. That section sets out the form of validity for the Powers of Attorney. Just generally, the grantor of the attorney has to be 16 years or older and that’s Section 43 of the Act. And the person, the attorney must be at 16 at the time that the power is exercised. That’s as opposed to property which is 18. The witnesses for the Power of Attorney have to be at least 18 and importantly, they can’t be the grantor’s spouse, partner or child of the grantor or person who stands as loco parentis. And that’s set out in Section 48 and Section 10 of the Substitute Decisions Act.
Natalia Angelini: Right. So that deals with some of the formalities which is good to note. And one of those includes that if you’re appointing joint attorneys, then they have to act jointly unless the attorney document specifies otherwise. So we’d recommend taking a look at that section if you want to look at those validity requirements and others.
The next issue that Mr. Handelman deals with in his paper is capacity to execute a Power of Attorney for Personal Care. And that is set out in Section 47 of the Substitute Decisions Act. And in essence, a person is capable of giving a Power of Attorney for Personal Care if he or she has the ability to understand, whether the proposed attorney has a genuine concern for their welfare, and appreciates that that person may need to have the proposed attorney make decisions for them. Moreover, a Power of Attorney for Personal Care is valid if at the time it was signed, the grantor was capable of giving it even if they’re not capable of making their personal care decisions. So that might be a difficult distinction to make but that’s what the legislation indicates.
Diane Vieira: Mr. Handelman’s paper does a wonderful job of distinguishing the different levels of capacity. And I would refer to the paper for that because the person can be capable of deciding who’s making those decisions even if they’re not capable of making those decisions themselves.
Natalia Angelini: Right, good point. And again, when it comes to revoking a Power of Attorney for Personal Care, someone is capable of doing that if they’re capable of giving one. So the same type of test applies.
Diane Vieira: And just generally, capacity for personal care decisions is lower than capacity to make a Will or to appoint an attorney pursuant to property. That’s outlined in the Substitute Decisions Act and the Health Care and Consent Act as well.
Natalia Angelini: Good point.
Diane Vieira: One thing to consider when you’re choosing your person, your attorney, is who to choose. Usually you may name the same person for property or personal care. But one thing you should look at or consider is if that person shares your religious values, your personal values or just your lifestyle values. That they understand that the person you choose is capable of making decisions that reflect your beliefs. So it may make sense to choose a different person for property and personal care.
Natalia Angelini: So that’s a good point, Diane. I think that, you know, a grantor really needs to think about who they’re appointing and what kind of person that is and how they would likely treat the grantor, particularly in a circumstance where they’re facing a precarious health situation.
Diane Vieira: Yeah.
Natalia Angelini: Why don’t we move on to the actual conditions you can have in a Power of Attorney for Personal Care. Section 50 of the Substitute Decisions Act really governs special provisions that may be inserted. And that can include things like authorizing the use of force, detention or restraint. It can also include something like assessing the grantor’s capacity or placing them for care and treatment. So in Section 50 of the Substitute Decisions Act (“SDA”), it stipulates or it covers the effectiveness of such provisions. So we recommend that if you want to look into that more, that you take a look at that section before doing so.
And also some types of conditions or restrictions aren’t governed by Section 50 of the SDA and that can include things like putting in restrictions dealing with your religious beliefs or lifestyle preferences. For example, you could put something in your attorney document that says, you know, don’t put me in a nursing home or I don’t want you to take any heroic measures in the event of my failing health. So those kind of things are also similar to sort of advanced directives and you can really…I think there’s a lot of liberty to put various types of advance directives in your attorney document and Mr. Handelman’s paper covers that in a really comprehensive way. And I don’t think we’re going to touch on it today.
Diane Vieira: No, I would direct you to the paper again because there is different consent and capacity level when it comes to directives.
Natalia Angelini: Right, so its something to keep in mind that if there’s varying capacity requirements for different directives I think as a lawyer its great to maybe take a look at the paper and keep in mind what you need to consider when advising your client in that regard.
So why don’t we talk now about the effectiveness of a Power of Attorney for Personal Care.
Diane Vieira: Yeah, unlike a Power of Attorney for Property, a Power of Attorney for Personal Care does not become effective immediately. It becomes effective when the grantor becomes incapable.
Natalia Angelini: Right. And you can find that delineated in Section 49 of the SDA.
Diane Vieira: Right.
Natalia Angelini: So backtracking a little, when you’re thinking about who’s going to be your attorney, you definitely want to consider whether the person you’re thinking of is actually going to be around when your perhaps elderly or facing a time in your life where you’re more mentally frail or physically frail than before. And…
Diane Vieira: You should choose someone who you know is going to be around, so you should probably choose someone that lives in your same city because these kind of decisions can happen, decisions may need to be made immediately. And your attorney, the person you choose as your attorney, has to be available.
Natalia Angelini: Right. And again if you are picking two people, then they do have to act jointly unless the Power of Attorney document says otherwise. And, you know, you may have the situation where maybe one of them is unavailable or incapable or unwilling to make a decision. So if that’s the case then you can appoint an alternate attorney.
Diane Vieira: Right. Just a note though, if you do appoint joint attorneys, your Power of Attorney document should state that one may make the decision if the other one is unwilling, because then the remaining attorney is left unable to make decisions because of the requirement that they act jointly. So you may, for solicitors, they may want to draft that into, if they’re choosing more than one Power of Attorney.
Natalia Angelini: Right. That seems to be the best way to deal with it when you’ve got two people appointed.
Diane Vieira: Now briefly we’ll just refer people to the Health Care and Consent Act, Section 20. In that section, you have the hierarchy of who can act as an attorney because the situation may be the person you choose as attorney predeceases you, they’re unavailable, they don’t want to act. In that section…
Natalia Angelini: Or their own capacity is in question.
Diane Vieira: Yeah. So if you look at Section 20 you have the hierarchy which just generally starts off with the capable person’s guardian of person, then second is the attorney, then you get a personal representative, that comes from the Consent and Capacity Board. In situations where the attorney is not available and someone is appointed, someone may be appointed with respect to the Care and Capacity Board. Then its your spouse or your partner, followed by your child or a parent if the grantor is a minor, followed by brother and sister, then any other person. And last and really last option is the Public Guardian and Trustee. The Public Guardian and Trustee is the substitute decision maker of last resort. Often if you try to contact the Public Guardian and Trustee, they will ask if there’s a friend, neighbour or anyone else familiar to make these decisions. But sometimes there’s not and the Public Guardian and Trustee becomes the last resort, the last substitute decision maker. But you can get, if you look at the Health Care and Consent Act, Section 20, that’s all there including the power of the Public Guardian and Trustee’s authority to act as a last resort.
Natalia Angelini: That’s right Diane, that’s a good thing to be aware of. Why don’t we briefly touch on revocation of a Power of Attorney for Personal Care? I’ve previously said that if a person is capable of giving it, then they’re capable of revoking it. It’s the same standard. And a revocation must be in writing. And that’s usually accomplished because its in a preamble of a new Power of Attorney for Personal Care. But if you’ve got multiple Powers of Attorney, then you have to be careful to make sure when revoking that you’re identifying all of them or whoever specifically you wish to no longer hold that position.
Diane Vieira: Right. And its often a tricky area because usually when you’re revoking a Power of Attorney, you may already be in frail health because you’re revoking it because you might not like the attorney that you’ve previously chosen, the decisions they’re making for you. So in terms of being a solicitor, it can be a tricky area in that you may have the capacity to revoke your Power of Attorney but does that mean you have the capacity to revoke your vast directives. There’s not a lot of case law when it comes to this, specifically capacity for property and personal care. So it’s a grey area.
Natalia Angelini: Yeah. And it is tricky when you’ve got these varying tests. You know, since there’s a higher test of capacity applies to treatment wishes than just the capacity to execute. So it is, I guess, an area we all need to tread carefully on or around.
Diane Vieira: Yes.
Natalia Angelini: So I think that brings us to the end of our talk. Again, if anyone is interested in reading on this a little more, we do recommend Mark Handelman’s paper. That should be on the Ontario Bar Association website.
Diane Vieira: Just a note, I didn’t say this at the beginning but it was presented in the 2009 Institute of Continued Learning Education Seminar. So it’s a 2009 paper.
Natalia Angelini: Yeah, so we highly recommend it. And with that, I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Diane.
Diane Vieira: Thanks Natalia. It was fun podcasting with you even though a slightly serious topic.
Natalia Angelini: We look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Natalia Angelini.
Diane Vieira: And I’m Diane Vieira. We’ll see you next week.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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