in law, we trust

POA for Personal Care – POA & Guardian 3/6

Please refer to the introductory blog on POA and Guardianship. This article is the 3rd in the series.

A Power of Attorney (POA) for Personal Care functions as a “living will.” It allows an individual (the grantor) to appoint someone they trust (the attorney) to make personal care decisions on their behalf if they become incapable of making those decisions themselves. These decisions can cover health care, nutrition, shelter, clothing, hygiene, and safety. For example, if someone is diagnosed with a terminal illness but is still of sound mind, they can use a POA for Personal Care to ensure that their wishes regarding medical treatment, living arrangements, and other aspects of their personal care are followed when they are no longer able to communicate them.

The governing statutes in Ontario are the HCCA (Health Care Consent Act) and SDA (Substitute Decisions Act). 

  1. Effectiveness

    • Since a POA for personal care is only exercisable when the grantor becomes incapable, it is not recommended to specify an effective date for the document.

  2. Assessment of Capacity

    • Under s.49(2) of the SDA, if the POA does not specify a method for determining incapacity, a “test of last resort” can be conducted by a certified assessor.

  3. Use of Force for Capacity Assessment

    • Legal procedures must be strictly followed if the POA grants the attorney the authority to use reasonable force to conduct a capacity assessment. These procedures ensure the grantor’s genuine consent and understanding of the consequences of such measures.

    • For these “use force” provisions to be valid in the POA, the grantor must sign a statement at the time of executing the POA, or within 30 days afterward, acknowledging their understanding of the impact of allowing force to be used for capacity assessments. This safeguard ensures the grantor’s full awareness and consent regarding the powers they are granting.

  4. Medical Assistance in Dying (MAID)

    • It is not recommended to use a POA for MAID, because the law is evolving in Canada, the grantor should rather consider drafting a separate specific POA if they wish to include directions for assisted dying.

  1. Minimum Age
    • The grantor must be at least 16 years old. This age limit only applies to decision-making moment by the attorney, meaning the grantor could be younger when the POA is signed.
  2. Capacity to Grant POA
    • Under s.47(2) of the SDA, a POA is valid if the grantor was capable of granting it at the time of execution, even if they were incapable of personal care at the time of execution. It is important to note that capacity is determined through a legal, not medical, test.
  • Termination: The rules for terminating a POA for personal care are the same as those for terminating a POA for property.

  • Revocation: The requirements for revoking a POA match the capacity test for creating one.

In cases where co-attorneys disagree on a health care decision governed by the HCCA, the decision will be made by the Public Guardian and Trustee (PGT), even if the grantor has provided instructions for resolving disputes.

  1. Standard of Care:

    • Act diligently and in good faith

    • Follow the grantor’s wishes, with later wishes prevailing over earlier ones

    • Make decisions based on the grantor’s best interests, considering:

      • Values and beliefs

      • Current wishes

      • Quality of life

  2. Attorney must do property record-keepings:

    • Maintain a list of all decisions regarding health care, safety, and shelter, including the reasons and dates for each decision

    • Keep copies of medical reports or other relevant documents

    • Record the names of persons consulted, including the incapable person, for each decision and the dates

    • Document the wishes of the incapable person when they were capable

    • … (additional details to be specified as needed)

Important Notice:

Compared to drafting a will, creating a DIY POA is more challenging. This is partly due to the limited online resources available and the higher risk of errors when drafting POA documents or acting under a POA. Therefore, this series of blogs is intended only to provide a basic understanding of the POA field. If you or your family are involved with POA or guardianship matters, we strongly recommend consulting your lawyer.