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POA Weekly – Week 8: What are the duties and obligations of an Attorney for Personal Care and when do they arise?

The authority for both an Attorney for Personal Care, and a guardian of the person is found in Part II of the Substitute Decisions Act (“SDA”).

A person is considered to be incapable of personal care if he/she is “not able to understand information that is relevant to making a decision concerning his/her own health care, nutrition, shelter, clothing, hygiene, safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision”.[1]

A person may therefore have personal care decisions made on his/her behalf by one or more attorneys acting under a POA for Personal Care which, like the attorney for Property, is executed at a time when such person has the requisite decisional capacity to give such a POA, or alternatively, under a court appointed guardianship of the person. The Public Guardian and Trustee, who is normally only a guardian of last resort. The Public Guardian and Trustee may be an attorney if consent is obtained in writing before the Power of Attorney is executed. [2]

The attorney under a POA for Personal Care is required to make decisions on the incapable person’s behalf in accordance with the SDA, and decisions on the incapable person’s behalf to which the Health Care Consent Act (“HCCA”) applies.[3] Where the HCCA does not apply, the attorney must make decisions on the incapable persons behalf with the following principles as guidelines:

  1. If the attorney/guardian knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the guardian shall make the decision in accordance with the wish or instruction.
  2. The attorney/guardian shall use reasonable diligence in ascertaining whether there are such wishes or instructions.
  3. A later wish or instruction expressed while capable prevails over an earlier wish or instruction.
  4. If the attorney/guardian does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the guardian shall make the decision in the incapable person’s best interests.[4]

Where neither the SDA, nor, the HCCA applies, the attorney acting under a POA must also have regard to the known wishes, or instructions of the incapable person, expressed at a time when the person had the requisite capacity.  Similarly, such an attorney must use reasonable efforts to ascertain and then to act in accordance with the wishes or instructions of the incapable person, or otherwise to act in the best interests of the incapable person.  In order to act in accordance with the best interests, the attorney must consider the values and beliefs of the individual in question, current wishes, if ascertainable, and general standard in quality of life, and whether the benefit of the decision outweighs the risk of harm to the person from alternate decisions.[5]

The attorney under a POA for Personal Care document is increasingly viewed as a planning tool for the end of life, which arguably would be beneficial if the grantor includes the involvement of family and/or close friends.  While the POA assists the grantor of the POA in being able to set out extensively the grantor’s wishes with respect to personal care if so desired, quite often the document does not contain detailed instructions.  As such, discussion with family members or proposed attorneys could benefit the grantor by facilitating a forum within which can be discussed the grantor’s wishes and instructions.  This is particularly important when considering the subject is not only sensitive to the proposed attorney or family members, but also to the grantor of such a power.

A lawyer does not necessarily have to be involved in such planning, but at the very least could inform an attorney or the grantor of an attorney as to the benefits of advanced care planning within the family context, or as appropriate if the grantor does not have family, which will facilitate matters for everyone involved.

It is crucial for attorneys to understand that an attorney under a POA for Personal Care is not a care provider, but rather a substitute decision maker.

As with the duties of an attorney under a POA for Property, an attorney for Personal Care must also explain the attorney’s powers and duties to the incapable person and encourage participation in decisions.[6]

The attorney must facilitate the incapable person’s contact with family members and\or relatives and friends as well as consult with such persons from time to time.[7]

The attorney must also facilitate the incapable person’s independence and assist in choosing the least restrictive and intrusive courses of treatment or action.[8]

Specifically, the attorney under a POA for Personal Care must not use any means of confinement, monitoring devices, restraint, detention of the incapable person physically, or through the use of drugs, and shall not consent on the incapable person’s behalf to the use of such measures, unless specifically used to prevent personal harm, or harm to another.  Additionally, the use of electric shock treatments should not be given or consented to on the incapable person’s behalf unless in accordance with the HCCA.[9]

Where an attorney is not able to make a decision on behalf of an incapable person, perhaps because to provide the proper care would be to go against the wishes of the grantor of the POA, then there is a provision within the legislation to go before the Consent and Capacity Board to obtain a decision on the attorney’s behalf.

Similarly, an attorney for personal care again may request the direction or assistance of the court on any issue arising under a POA either on behalf of the incapable person, or that person’s dependants.[10]

An attorney for Personal Care is required to keep extensive records of decisions taken, including a comprehensive list of health care, safety, shelter decisions, medical reports or documents, including the names of persons consulted, dates, reasons for decisions being taken, record of the incapable person’s wishes, and so on.[11]

An attorney under a POAPC also must exercise powers diligently and in good faith.[12]

[1] Substitute Decisions Act, 1992, SO 1992, c 30, s. 45.

[2] Ibid at s. 45(2).

[3] Ibid at s. 66(2.1).

[4] Ibid at, s. 66(3) & s. 67.

[5] Ibid at s. 66(4) & s. 67.

[6] Ibid at s. 66(2).

[7] Ibid at s. 66(6).

[8] Ibid at s. 66(8) & 66(9).

[9] Ibid at s. 66(10).

[10] Ibid at s. 68(1).2

[11] Ibid at s. 66(4.1), O. Reg. 100/96.

[12] Ibid at s. 66(1).

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