Thursday, October 24, 2013

Considerations in using an Ontario Power of Attorney for Personal Care:

This week at Wise Law Blog, we are exploring Powers of Attorney for Care, and end-of-life care decisions, generally.  Join us as Simran Bakshi, Student-at-Law, considers a the questions and concerns around appointing an Attorney for Care and completing an Ontario Power of Attorney for Care document.
As well-thought out and meticulously drafted as your Power of Attorney for Personal Care may be, it is ultimately only useful if it serves its purpose in your time of need. In order to be an effective tool that provides you and your loved ones with peace of mind, a Power of Attorney for Personal Care must be accessible to your appointed Attorney of Care, and comprehensible with respect to nature of rights it confers.

To start with the obvious, it is important to ensure that you and your appointed Attorney for Care are on the same page with respect to your expectations as described in your Power of Attorney for Personal Care. Accordingly, it is beneficial to do a walk-through of the completed document with your Attorney for Care to clearly elaborate, if need be, on exactly what your end-of-life care wishes are.

As is the case with executing a Power of Attorney for Personal Care, there is no formal procedure in place for enforcing this legal instrument. A Power of Attorney for Personal Care is not required to be registered with any government agency, and accordingly no formal records of the document itself are maintained by the Attorney Generals office or the Office of the Public Guardian Trustee.

Although health practitioners are permitted to rely upon the declaration of an individual as a substitute decision-maker who may give consent, in most cases an Attorney for Care will be required to produce the Power of Attorney for Personal Care to confirm his or her authority. Certain institutions may as a policy request for an original or notarized copy of the document. It is thus highly advisable to execute two notarized original Powers of Attorney for Personal Care, such that you may retain one copy for safekeeping, while your Attorney for Care may keep the other.

As your substitute decision-maker, an Attorney for Care should be privy to all of the information you would be entitled to if you were capable of reaching a decision on your own. Accordingly, the healthcare provider administering the treatment must discuss all aspects of the proposed treatment such that the Attorney for Care is able to provide an informed consent.

An Attorney for Care is required by law to maintain full records of any decisions made. This includes: [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 and the reason for it and the date;
  • A copy of medical reports or other documents, if any, relating to each decision’
  • The names of any persons consulted, including the incapable person, in respect of each decision and the date;
  • A description of the incapable person’s wishes, it any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;
  • A description of the incapable person’s current wishes, if ascertainable, and if they are relevant to the decision;
  • For each decision taken, the Attorney for Care’s opinion on what is in the incapable person’s best interests (as per the factors listed in s.66(4)(c) of the Substitute Decisions Act)
  • A copy of any court orders relating to the Attorney for Care’s authority of the incapable person’s care
Given the intensely personal nature of decisions an Attorney for Care makes on your behalf, he or she is expected to maintain high standards of privacy. The only exception to this however is where you have consented to the disclosure of your information by making such intentions clear on your Power of Attorney for Personal Care or where the disclosure of such information becomes necessary for the Attorney for Care to carry out his or her duties or to abide by the law.

[1]  Accounts and Records of Attorneys and Guardians, O Reg 100/96, s.3.

- Simran Bakshi, Student-at-Law, Toronto
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