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Articling Weekly No.6: List of Records a POAPC Must Keep – A Refresher!

As per statistics from 2024, Canada has one of the highest life expectancies in the world, with the average being 82.7 years[1], making planning for the possibility of incapacity an important aspect of estate planning for Canadians. Assigning a substitute decision maker with a Power of Attorney (“POA”) can be a useful tool to legally protect the personal and financial interests in case of incapacity. As unlike the will, a POA comes into effect when the grantor is still living but is incapable of making their own decisions. There are two types of Powers of Attorney: POA for personal care and POA for property.[2]

Attorneys under a Power of Attorney for Personal Care (POAPC) hold significant authority, making decisions for individuals deemed incapable. 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”.[3] The grantor of a POAPC must be considered mentally capable of executing the document. To be considered mentally capable, it must be clear that they understand:

  1. The need to choose an attorney who has a genuine concern for the grantor’s welfare, and
  2. That there may be a need for the attorney to make personal care decisions on the grantor’s behalf.[4]

If there is not a POA made in advance of becoming mentally incapable, family and friends may need to take additional steps such as asking the court to appoint someone as a guardian, or the Public Guardian and Trustee could be appointed. [5]

This role comes with a legal responsibility to maintain comprehensive records to safeguard both the attorney and the incapable person.

Pursuant to section 3 of Accounts and Records of Attorneys and Guardians, O Reg 100/96[6], the records maintained by an attorney under a Power of Attorney for Personal care and a guardian of the person shall include:

  1. a list of all decisions regarding health care, safety and shelter made on behalf of the incapable person, including the nature of each decision, the reason for it and the date;
  2. a copy of medical reports or other documents, if any, relating to each decision;
  3. the names of any persons consulted, including the incapable person, in respect of each decision and the date;
  4. a description of the incapable person’s wishes, if any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;
  5. a description of the incapable person’s current wishes, if ascertainable and if they are relevant to the decision;
  6. for each decision taken, the attorney’s or guardian’s opinion on each of the factors listed in clause 66 (4) (c) of the Substitute Decisions Act.[7]

An attorney under a power of attorney for personal care and a guardian of the person shall also keep a copy of the power of attorney for personal care or court order appointing the attorney or guardian, a copy of the guardianship plan, if any, and a copy of any court orders relating to the attorney’s or guardian’s authority or the incapable person’s care.[8]

For ease of reference, section 66 (4)(c) of the Substitute Decisions Act sets out a list of factors to be considered when making a decision based on an incapable person’s best interests. Such factors include:

Whether the guardian’s decision is likely to:

  1. improve the quality of the person’s life,
  2. prevent the quality of the person’s life from deteriorating, or
  3. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.

It is also essential that these records must remain confidential at all points as attorney or guardian shall not disclose any information contained in the accounts and records except,

(a)  as required by section 5 or permitted by section 6;

(b)  as required by a court order;

(c)  as required otherwise under the Act or any other Act; or

(d)  as is consistent with or related to his or her duties as attorney or guardian.  O. Reg. 100/96, s. 4.[9]

To conclude, attorneys acting under a Power of Attorney for Personal Care (POAPC) bear significant legal obligations, both in terms of the decisions they make and the records they must maintain. By adhering to the detailed requirements set out in the Substitute Decisions Act and its regulations, attorneys can ensure that their actions align with the best interests of the grantor while upholding their fiduciary duties. Comprehensive record-keeping not only safeguards the incapable person’s rights but also serves to protect the attorney from potential legal challenges. Understanding and fulfilling these responsibilities is essential for anyone entrusted with this vital role in supporting the personal care needs of an incapable individual.

[1] WorldOMeter, Demographics “Life Expectancy of the World Population”, online : Demographics < Life Expectancy by Country and in the World (2024) – Worldometer>

[2] Ontario, Law and Safety “Make Power of Attorney”, online: Ontario.ca <Make a power of attorney | ontario.ca>

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

[4] STEP Canada, “Power of attorney for personal care”, online: STEP < Power of Attorney for Personal Care – Canada>

[5] Ontario, Law and Safety “Mental Capacity”, online: Ontario.ca <Mental capacity | ontario.ca>

[6] Accounts and Records of Attorneys and Guardians, O Reg 100/96, s 1, <https://canlii.ca/t/35j#sec1>

[7] Accounts and Records of Attorneys and Guardians, O Reg 100/96, s 1, <https://canlii.ca/t/35j#sec1>

[8] Accounts and Records of Attorneys and Guardians, O. Reg. 100/96: , s.4 <O. Reg. 100/96 ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS | ontario.ca>

[9] Substitute Decisions Act, 1992, S.O. 1992, c. 30 O. Reg. 100/96: Accounts and Records of Attorneys and Guardians

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