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POA Weekly – Week 7: What is a Power of Attorney for Personal Care?

An Attorney under a POA for Personal Care only came into effect as a result of legislative reforms which were brought into effect in 1992, and included the Substitute Decisions Act, the Consent to Treatment Act, 1992, the Advocacy Act, 1992, and the Consent and Capacity Statute Law Amendment Act, 1992, all of which legislation came into force in 1995, with subsequent amendments.

In 1996, the Health Care Consent Act[1] replaced both the Consent to Treatment Act 1992, and the Consent Capacity Statute Law Amendment Act, 1992.  The Health Care Consent Act, governs health care issues in the areas of consent to treatment, treatment, admission to a care facility, Consent and Capacity Board reviews, and intervention and personal assistance services.[2]

The Health Care Consent Act is concerned with consent to specific treatment and other personal care decisions as well as the means for giving substitute consent where a patient is found to be incapable.

The Substitute Decisions Act also provides guidance regarding the execution of a POA for Personal Care,[3] revocation,[4] resignation,[5] and termination.[6]

The POA for Personal Care requirements are set out at s. 46 of the Substitute Decisions Act.  Notably, this type of document is a more flexible vehicle for assisting the grantor with personal care decisions when, and if it becomes necessary to do so, and is sometimes informally, referred to as a “Living Will” which may contain advance directives for care.

A POA for Personal Care is never used except in circumstances where the grantor is incapable of making a decision either because the grantor is generally unable to make decisions, or is not able to make specific decisions.[7]  The Substitute Decisions Act prohibits the persons who provide health care for compensation, or residential social or support services to a grantor for compensation from acting as an Attorney under a POA for Personal Care except insofar as the person is the spouse, partner or relative of the grantor.[8]  An Attorney, under a POA for Personal Care can make decisions concerning health care, nutrition, shelter, clothing, hygiene or safety.  Some health care decisions made by the substitute decision maker are also covered by the Health Care Consent Act.

[1] Health Care Consent Act, 1996, SO 1996, C.2, Schedule A.

[2] Ibid at Part 1 General, s. 1(a)-(f).

[3] Substitute Decisions Act, supra note 9, at s. 48.

[4] Ibid at s. 50.

[5] Ibid at s. 52.

[6] Ibid at s. 53.

[7] Ibid at s. 49.

[8] Ibid at s. 46(3).

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