Navigating Power of Attorney for Personal Care: Essential Guidance from Your Mississauga Estate Lawyer

As an Ontario estate planning lawyer, I often work with clients on the crucial task of establishing a power of attorney for personal care. This legal document ensures your healthcare and end-of-life wishes are respected, even if you become incapable of making decisions for yourself. In this article, I'll guide you through the key considerations and steps to set up this essential estate plan component.

• What is a Power of Attorney for Personal Care?
• Appointing Your Substitute Decision Maker
• Outlining Your Personal Care Wishes
• Understanding Capacity Assessments
• Activating Your Power of Attorney
• Reviewing and Updating Your POA
• Common Questions about Personal Care POAs
• Next Steps: Getting Started with Your POA

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 healthcare and other personal care decisions on your behalf if you become incapable of doing so yourself. This can happen due to an accident, illness, or the natural progression of conditions like dementia. Well, here's the thing - having this document in place is crucial, as it ensures your wishes and preferences regarding medical treatment, living arrangements, and end-of-life care are followed, even if you can no longer communicate them yourself.

Your power of attorney for personal care is separate from, but often complementary to, your power of attorney for property, which addresses financial and legal matters. While the property POA deals with your assets and financial affairs, the personal care POA is all about making decisions related to your health, medical treatments, and overall wellbeing.

Appointing Your Substitute Decision Maker

The first step in setting up your power of attorney for personal care is to carefully select your substitute decision maker - the person you want to make decisions on your behalf if you become incapable. This is a critically important choice, as this individual will have significant authority over your healthcare and living arrangements.

When choosing your substitute decision maker, consider someone who:

• Understands Your Wishes:
  Knows your values, beliefs, and preferences regarding medical treatment and end-of-life care.
• Respects Your Autonomy:
  Is willing and able to advocate for your wishes, even if they differ from their own personal views.
• Capable and Committed:
  Has the time, dedication, and ability to make complex and potentially difficult decisions on your behalf.
• Accessible and Involved:
  Lives nearby or can easily be involved in your care if needed.

Many people choose a spouse, adult child, or other close family member or friend to serve as their substitute decision maker. However, you aren't limited to these relationships - you can also appoint a professional trustee or public guardian if you don't have someone suitable in your personal circle.

Outlining Your Personal Care Wishes

Once you've selected your substitute decision maker, the next step is to carefully document your personal care wishes and preferences. This is where your power of attorney for personal care document comes into play. In this legal document, you can outline your instructions and preferences regarding a wide range of personal care matters, including:

By clearly articulating your wishes, you can ensure your substitute decision maker has a roadmap to follow, even if you're no longer able to communicate your preferences directly. This can alleviate stress and uncertainty for your loved ones during a difficult time.

It's important to note that your power of attorney for personal care can also include an advance healthcare directive, which is a separate legal document that outlines your specific instructions for end-of-life care, such as whether you want to be resuscitated or placed on life support.

Understanding Capacity Assessments

A crucial aspect of a power of attorney for personal care is the concept of capacity. In Ontario, your substitute decision maker can only make decisions on your behalf if you are deemed to lack the mental capacity to make those decisions yourself. This is determined through a formal capacity assessment, usually conducted by a qualified healthcare professional.

The assessment evaluates your ability to understand information relevant to the decision at hand and appreciate the consequences of your choices. If you're found to be incapable of making a specific decision, your substitute decision maker can then step in and make that decision for you, in accordance with your documented wishes.

It's important to note that capacity is decision-specific and can fluctuate over time. A person may be deemed capable of making some decisions but not others, or their capacity may change as their health condition progresses. This is why regular capacity assessments are often necessary, especially for individuals living with dementia or other degenerative conditions.

Activating Your Power of Attorney

Your power of attorney for personal care only becomes active and enforceable when you are deemed incapable of making your own personal care decisions. This is typically determined through a formal capacity assessment, as mentioned earlier. Once your incapacity is established, your substitute decision maker can then begin making decisions on your behalf, in accordance with your documented wishes.

It's worth noting that your substitute decision maker cannot simply decide on their own that you are incapable. There must be a formal capacity assessment conducted by a qualified healthcare professional, such as a physician or registered nurse. This ensures the process is fair, objective, and protects your rights.

Once your power of attorney for personal care is activated, your substitute decision maker will be responsible for a wide range of personal care decisions, including consent to medical treatment, living arrangements, and end-of-life care. They must act in your best interests and make choices that align with your known values and preferences.

Reviewing and Updating Your POA

Creating a power of attorney for personal care is an important first step, but it's not a one-and-done process. As your life circumstances and healthcare needs change over time, it's crucial to review and update your power of attorney document to ensure it continues to reflect your wishes.

Here are a few key reasons to review and potentially update your power of attorney for personal care:

By regularly reviewing and updating your power of attorney, you can have peace of mind knowing that your personal care decisions will be handled according to your current desires and best interests, even if your capacity to make those decisions changes in the future.

FAQs

What happens if I don't have a power of attorney for personal care?

If you become incapable of making your own personal care decisions and you don't have a power of attorney in place, the Ontario government may appoint a substitute decision maker on your behalf, such as a family member or the Public Guardian and Trustee. However, this individual may not be the person you would have chosen, and they may not be aware of your specific wishes and preferences regarding your healthcare and end-of-life care.

Can I change my mind and revoke my power of attorney for personal care?

Yes, you can revoke or change your power of attorney for personal care at any time, as long as you have the mental capacity to do so. This allows you to update the document to reflect changes in your life, relationships, or personal care preferences. It's important to follow the proper legal procedures when revoking or updating your power of attorney to ensure it is valid and enforceable.

Do I need a lawyer to create a power of attorney for personal care?

While it's not legally required to have a lawyer draft your power of attorney for personal care, it's generally recommended. An experienced estate planning lawyer can help ensure your document is properly structured, accurately reflects your wishes, and meets all the legal requirements in Ontario. They can also provide guidance on selecting a suitable substitute decision maker and navigating the capacity assessment process.

Can my substitute decision maker override my personal care wishes?

No, your substitute decision maker is legally obligated to make decisions that align with your known wishes, values, and preferences, as outlined in your power of attorney for personal care document. They cannot simply disregard your instructions and make decisions based on their own personal views. If they fail to act in your best interests, you or your loved ones may be able to challenge their decisions through the courts.

How often should I review and update my power of attorney?

It's generally a good idea to review your power of attorney for personal care every few years, or whenever there are significant changes in your life, such as a change in your health status, living situation, or relationships. This ensures your document continues to accurately reflect your current wishes and that your chosen substitute decision maker is still the best person for the role.

Next Steps: Getting Started with Your POA

If you don't already have a power of attorney for personal care in place, I strongly encourage you to consider creating one as part of your comprehensive estate plan. This important document can provide you with peace of mind, knowing that your healthcare and end-of-life wishes will be respected, even if you become incapable of making those decisions yourself.

The process of setting up a power of attorney for personal care can seem daunting, but with the guidance of an experienced Mississauga estate lawyer, it can be straightforward and empowering. We can help you navigate the legal requirements, identify the right substitute decision maker, and ensure your personal care wishes are clearly documented.

Don't wait until a crisis occurs to put this essential estate planning document in place. Take the time now to secure your future healthcare and personal care decisions. Contact Tabuchi Law today to get started on your power of attorney for personal care and take control of your own wellbeing.