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What’s a Power of Attorney for Personal Care and why do I need one?

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What’s a Power of Attorney for Personal Care and why do I need one?
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What’s a Power of Attorney for Personal Care and why do I need one?
Reviewed: 
April 23, 2020
Answer

Because of COVID-19, you might be thinking of making a Power of Attorney for Personal Care. A Power of Attorney is a legal document that lets you name someone to make decisions for you. This person is called your attorney.

There are 2 main kinds of Power of Attorney that you can make:

You can make a Power of Attorney for Personal Care if you’re 16 years old and mentally capable. Mentally capable means:

  • you understand whether the person you name as your attorney is truly concerned about how you live and are taken care of, and
  • you understand that you may need this person to make decisions for you.

You must also be making the Power of Attorney without anyone forcing you to.

Power of Attorney for Personal Care

A Power of Attorney for Personal Care gives your attorney the power to:

  • make decisions about your personal care, such as housing, nutrition, clothing, hygiene, and safety
  • make decisions about your health care that deal with:
    • medical treatments, such as agreeing or refusing treatments by regulated health care professionals, including doctors, nurses, dentists, and physiotherapists
    • moving into a long-term care home
    • personal assistance services in long-term care homes, such as bathing and help with meals

Being capable of making decisions

A Power of Attorney for Personal Care takes effect only if you’re not mentally capable of making decisions for yourself. Being mentally incapable means that you:

  • are not able to understand the information needed to make personal care decisions, or
  • are not able to appreciate what might happen when you make or refuse to make personal care decisions.

You may be capable of making some personal care decisions and not others. For example, you might be capable of taking care of your hygiene and clothing, but not capable of making decisions about your housing.

Your attorney can only make decisions for you that you’re not capable of making yourself.

Your Power of Attorney can include a statement about who can decide if you’re capable to make personal care decisions. This can be a health-care practitioner or even your attorney. If you don’t include this statement, your attorney decides if you’re capable.

There are different rules for heath-care decisions.

For health-care treatments, your health-care practitioner decides if you’re capable of making decisions. For other types of health care decisions such as admission to long-term care homes and personal assistance services in long-term care homes, your mental capacity might have to be assessed or evaluated. This can only be done by a health-care practitioner who is an evaluator.

Choosing an attorney

Your attorney should be someone who genuinely cares about you. You can talk to your attorney about:

  • the kinds of decisions that they might have to make for you, and
  • what you think about when you make these decisions for yourself.

Your Power of Attorney can include your wishes about your personal care. This is sometimes called an “advance care plan”. It can include things like:

  • staying in your own home as long as possible
  • respecting your religion when choosing food
  • letting doctors use artificial life support if you’re terminally ill
  • talking to family members before making certain decisions

People usually appoint family members or close friends to be their attorney. If you don’t have family or close friends in Canada, you might ask a member of your local community to be your attorney. This could be a co-worker or a religious adviser, such as a minister, rabbi, or imam.

It’s usually best to appoint an attorney who lives in Canada. And it’s better if they live in Ontario. An attorney needs to be able to respond quickly to urgent matters, monitor how you’re doing, and make sure your needs are met.

Someone who’s paid to give you certain types of services like health care, housing, social services, education, or support services can’t be your attorney for personal care. This applies unless that person is also your relative or your spouse or partner.

Being paid includes you giving them money, or they might be paid through the Ontario Health Insurance Program (OHIP) or a public service, such as home care.

You can appoint more than one person to be your attorney. If you do this, you must decide if they have to act jointly and agree on every decision. Or, you may decide that they can act jointly and separately, which means they can each act on their own or together.

You can also appoint substitute attorneys in case one can’t or does not want to act when they need to.

If you don’t have a Power of Attorney

Making a Power of Attorney for Personal Care means that you choose a person you trust to be your substitute decision-maker if you become mentally incapable in the future.

If you don’t make one and you become incapable of making personal care decisions, then:

  • You may be able to make a Power of Attorney for Personal Care if you’re capable of making one but not capable of making decisions. Get legal help if you want to do this.
  • Someone may go to court to become your Guardian of the Person.

If you become incapable of making health-care decisions, the Health Care Consent Act says who can make these decisions, in this order:

  • your Guardian for Personal Care, if you have one
  • the attorney you name in your Power of Attorney for Personal Care, if you have one or are capable of making one
  • your representative appointed by the Consent and Capacity Board, if you have one
  • your spouse or partner
  • your parent or your child if they’re at least 16 years old
  • your brother or sister
  • any other relative
  • the Office of the Public Guardian and Trustee

Whoever your health care decision-maker is from this list must also be:

  • at least 16 years old,
  • mentally capable,
  • available and willing to make health-care decisions for you, and
  • not stopped from acting as your substitute decision-maker by a court order or separation agreement.

Making a Power of Attorney

There are 3 ways to make a Power of Attorney for Personal Care:

  1. Use CLEO’s Power of Attorney Guided Pathway. This is a free online interview that helps you create a Power of Attorney for Personal Care and a Continuing Power of Attorney for Property. You can also use the Pathway to cancel any previous Powers of Attorney you made.
  2. Use a Power of Attorney kit. You can get a free one from the Office of the Public Guardian and Trustee. There are others you can buy online or at stores. But be sure the kit is based on the law in Ontario.
  3. Ask a lawyer to prepare your Power of Attorney. This will cost more but the lawyer will make sure that it follows the law.

You must sign your Power of Attorney for Personal Care in front of 2 witnesses. The witnesses must both be with you when you sign and when they sign. The witnesses can be anyone except:

  • your spouse or partner, child, or someone you treat as your child, such as a stepchild you support
  • your attorney or your attorney's spouse or partner
  • someone under the age of 18

Virtual witnessing

Because of COVID-19, it can be difficult to have witnesses physically present when you sign your Power of Attorney.

The government made an emergency order on April 7, 2020 and April 22, 2020, that lets witnesses be “present” virtually.

For this to apply:

  • You must use audio-visual technology that lets you and your 2 witnesses see, hear, and speak to each other at the same time.
  • One of the witnesses must be a lawyer or paralegal licensed by the Law Society of Ontario.
  • Everyone signs an identical copy of the Power of Attorney at the same time.
  • The audio-video session can be recorded.

The Power of Attorney is made up of all these copies.

The law firm Hull & Hull created a checklist to help you make sure you’re following the rules about using audio-visual technology. Thanks to Hull & Hull for letting us link to this. 

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