Navigating Ontario's Power of Attorney for Personal Care: Your Legal Guide

Navigating the complexities of power of attorney documents in Ontario can be daunting, but it's a crucial step in ensuring your personal care wishes are honored. This comprehensive guide from the estate planning experts at Tabuchi Law will walk you through the ins and outs of the Power of Attorney for Personal Care, helping you understand your rights, responsibilities, and options for advance care planning in Ontario.

• What is a Power of Attorney for Personal Care?
• Who Can Be Your Substitute Decision-Maker?
• How to Create a Power of Attorney for Personal Care
• When Does a Power of Attorney Take Effect?
• What Powers Does Your Substitute Decision-Maker Have?
• How to Revoke or Change a Power of Attorney
• Common Questions About Powers of Attorney

What is a Power of Attorney for Personal Care?

A Power of Attorney for Personal Care is a legal document that allows you to appoint a trusted individual, known as a substitute decision-maker, to make decisions about your personal care and health if you become mentally incapable of doing so yourself. This includes decisions about your medical treatment, living arrangements, and other aspects of your day-to-day life. It's an essential part of advance care planning and ensures your personal care wishes are honored, even if you're unable to communicate them yourself.

Well, here's the thing - a Power of Attorney for Personal Care is different from a general Power of Attorney, which deals with your financial and legal affairs. The personal care Power of Attorney is specifically focused on your health and well-being, and it's crucial to have both in place as part of a comprehensive estate plan.

Who Can Be Your Substitute Decision-Maker?

When creating a Power of Attorney for Personal Care in Ontario, you can appoint any capable adult as your substitute decision-maker. This is typically a trusted family member, friend, or professional (such as a lawyer or social worker) who will be responsible for making decisions about your personal care if you become mentally incapable.

It's important to carefully consider who you choose as your substitute decision-maker. They should be someone you trust implicitly, who understands your values and wishes, and who will act in your best interests. They should also be willing and able to take on this responsibility, as it can be a significant time commitment and emotional burden.

Remember, your substitute decision-maker will have the power to make important decisions about your life, so choose wisely.

How to Create a Power of Attorney for Personal Care

Creating a Power of Attorney for Personal Care in Ontario is a straightforward process, but it's important to ensure it's done correctly to ensure your wishes are legally binding. The first step is to decide who you want to appoint as your substitute decision-maker. Once you've made that decision, you'll need to have the Power of Attorney document drafted and signed.

In Ontario, a Power of Attorney for Personal Care must be witnessed by two people who are not the substitute decision-maker or their spouse. These witnesses must be present when you sign the document and must also sign it themselves. It's important to choose witnesses who are reliable and understand the gravity of their role.

After the document is signed, you should provide copies to your substitute decision-maker, your healthcare providers, and any other relevant parties. This ensures that your wishes are known and can be easily accessed if needed.

When Does a Power of Attorney Take Effect?

A Power of Attorney for Personal Care in Ontario only takes effect if you become mentally incapable of making decisions about your own personal care. This is known as the trigger for the Power of Attorney. It's important to note that mental incapacity is not an all-or-nothing proposition - it can be gradual and context-specific.

If there is a dispute about your mental capacity, a healthcare professional or the Consent and Capacity Board of Ontario will assess your ability to make decisions. Once it's determined that you're mentally incapable, your substitute decision-maker will then have the authority to make decisions about your personal care on your behalf.

It's worth noting that a Power of Attorney for Personal Care is a durable document, meaning it remains in effect even if you become mentally incapable. This is in contrast to a general Power of Attorney, which typically becomes invalid if the person who created it loses mental capacity.

What Powers Does Your Substitute Decision-Maker Have?

When you appoint a substitute decision-maker through a Power of Attorney for Personal Care in Ontario, you're granting them the authority to make a wide range of decisions about your personal care, including:

• Decisions about your medical treatment, including whether to consent to or refuse treatment
• Decisions about your living arrangements, such as where you will live and with whom
• Decisions about your diet, hygiene, and other day-to-day personal care matters
• Decisions about your participation in social, recreational, and educational activities

It's important to note that your substitute decision-maker must act in accordance with your previously expressed wishes, values, and beliefs. They can't simply make decisions based on their own preferences. If your wishes are unknown, they must act in your best interests.

How to Revoke or Change a Power of Attorney

If you ever want to revoke or change your Power of Attorney for Personal Care in Ontario, you have the right to do so. This might happen if your circumstances change, or if you simply want to appoint a different substitute decision-maker.

To revoke a Power of Attorney, you'll need to complete a formal revocation document and provide copies to your former substitute decision-maker, your healthcare providers, and any other relevant parties. It's important to ensure that the revocation is properly executed and communicated to avoid any confusion or disputes.

If you want to change your Power of Attorney, you'll need to create a new document and follow the same steps as when you initially created it. Once the new Power of Attorney is in place, the old one will be automatically revoked.

Remember, it's always a good idea to review your Power of Attorney for Personal Care periodically and make any necessary updates to ensure it reflects your current wishes and circumstances.

FAQs

Do I need a lawyer to create a Power of Attorney for Personal Care in Ontario?

While it's not legally required to have a lawyer draft your Power of Attorney for Personal Care in Ontario, it's generally a good idea to do so. An experienced estate planning lawyer can ensure the document is properly executed and that your wishes are clearly articulated. They can also provide guidance on choosing the right substitute decision-maker and navigating any potential issues or disputes.

Can I have more than one substitute decision-maker?

Yes, you can appoint multiple substitute decision-makers in your Power of Attorney for Personal Care in Ontario. This is known as a joint appointment. If you do this, you'll need to specify whether the decision-makers must act together (jointly) or if they can act independently (severally). A joint appointment can help ensure decisions are made collaboratively, but it also has the potential to create conflicts or delays.

What happens if I don't have a Power of Attorney for Personal Care?

If you become mentally incapable of making decisions about your personal care and you don't have a Power of Attorney in place, the process of determining a substitute decision-maker can become much more complicated. In this situation, the Ontario government may appoint a guardian or a substitute decision-maker on your behalf, which can be a lengthy and costly process. It's always better to have your wishes clearly documented in a Power of Attorney for Personal Care.

Can my substitute decision-maker override my personal care wishes?

No, your substitute decision-maker is legally required to act in accordance with your previously expressed wishes, values, and beliefs. They cannot simply make decisions based on their own preferences. If your wishes are unknown, they must act in your best interests. If there is a dispute about the decisions being made, the matter can be brought before the Consent and Capacity Board of Ontario.

How often should I review my Power of Attorney for Personal Care?

It's a good idea to review your Power of Attorney for Personal Care periodically, especially if your personal circumstances or preferences change. At a minimum, you should review it every few years to ensure it still reflects your wishes. You may also want to review it if you experience a significant life event, such as a marriage, divorce, or the death of a loved one.