The Nuts and Bolts of Making 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.

Our focus thus far has been on the preliminary considerations in executing a Power of Attorney for Personal Care. With a clear understanding of what this legal instrument is, and the nature of decision-making it requires, our focus may now shift to the nuts and bolts of actually making a Power of Attorney for Personal Care.

From a purely procedural standpoint, a Power of Attorney for Personal Care is a rather simple instrument to execute as it does not require any special form. A document will be legally binding for this purpose so long as it names at least one person as the Attorney for Care; it is made at a time when you have legal capacity; and it is signed, dated, and witnessed by two persons. It is important to note there are restrictions placed on who may act as a witness for the purpose of making a Power of Attorney for Personal Care.

The general format for a Power of Attorney for Personal Care is as follows:

(i)                   An Attorney for Care is appointed;

(ii)                 Authority is conferred upon him or her to make personal care decisions; and

(iii)                Directions are provided to guide what decisions are ultimately made (“Living Will”)

(i)                  Appointing an Attorney for Care:

There are very few limitations placed on who you may name as your Attorney for Care. So long as a person is at least 16 years of age; and is mentally capable of acting as a decision-maker, he or she may be appointed as a Power of Attorney for Personal Care. This includes persons who reside outside of Ontario. It is important to note however that an individual cannot be paid to provide his or her services as an Attorney for Care, unless he or she is a relative.

(ii)                Parameters of Decision-Making Authority:

Capacity:

A Power of Attorney for Personal Care will only come into effect if and when you become incapable of making your own medical treatment decisions. The assessment of your capacity or lack thereof, is thus significant as it will determine whether your Attorney for Care will be conferred with the authority to act as your substitute decision-maker.

There is a presumption under the Health Care Consent Act that every person is capable of making decisions with respect to his or her own healthcare and treatment.[1] Accordingly, you may only be deemed to be incapacitated if you are unable to understand information that is relevant to making a decision about your treatment; or if you are unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[2]

Pursuant to the Health Care Consent Act, if a decision relates to a medical treatment or admission to a long-term care facility, a healthcare professional must assess your capacity to make a choice.[3] In all other circumstances, unless you have provided for an exception stating otherwise (i.e. a requirement for your Attorney for Care to get independent confirmation of an assessment of incapacity), your Attorney for Care will determine whether you have the capacity to make a particular decision.[4]

It is important to note that capacity may range based on the nature of decision that is to be made. For example, while you may lack the capacity to make a serious health care decision, you may continue to be capable of making your own choices on routine day-to-day matters.

Scope of Decision-Making Powers:

A Power of Attorney for Personal Care may be framed so as to restrict the scope of your Attorney for Care’s powers. However, if this has not been done, your Attorney for Care has the right to make practically any decision of a personal nature. This would include choices regarding your medical treatment, housing, food, hygiene, clothing and safety.

General Principles on Decision-Making:

Your Attorney for Care is legally obliged to make personal care decisions on the basis of what you would want if you were capable of reaching a decision on your own. As a starting point, your Attorney for Care should refer to any prior capable wishes that were either expressed in your Power of Attorney for Personal Care or communicated orally. If however, there are no known prior capable wishes, or your instructions are deemed to be impossible to follow, your Attorney for Care must resort to what is in your best interests.  This may be determined by considering the diagnosis and prognosis of your condition; conducting a cost-benefit analysis on any proposed treatment; reflecting on your values and beliefs; and factoring in any wishes you may have expressed after becoming incapable. 

(iii)                Expressing your personal care wishes:

End-of-life care decisions address a dark and heavy subject matter. While an inherent part of a Power of Attorney for Personal Care, this instrument does not have to take on a serious and legal tone. Rather it can, and should be moulded to reflect your personality. The following are some examples of clauses that have been included in a Power of Attorney for Personal Care.

The Straight-Forward approach:

If at any time I should have a medical condition that would indicate that I am terminally ill and the condition cannot be reversed by treatment with any expectation that I could reasonably enjoy a normal life both physically and mentally thereafter, I DIRECT that no effort be made to prolong my life aggressively, including the use of drugs, antibiotics or other means, or attempt to resuscitate me if my heart or lungs fail. I FURTHER DIRECT that in such event any doctors or medical personnel who are treating me or any medical facility or hospital or nursing home in which I am being treated shall confine their treatment to alleviating or relieving as much as possible any pain or suffering I may have.(Source: http://www.ramsaylaw.ca/index.php/areas-of-law/power-of-attorney)

The Laundry List approach:

The following are further instructions pertaining to health care that I wish to have [or alternatively, “that I wish not to have”] should I be near death or in a vegetative state and unable to communicate my wishes to medical staff:
I “Do” or “Do not” want to be revived or resuscitatedI “Do” or “Do not” want electrocardioversionI “Do” or “Do not” want mechanical respirationI “Do” or “Do not” want antibioticsI “Do” or “Do not” want kidney dialysisI “Do” or “Do not” want chemotherapyI “Do” or “Do not” want tube feeding or any other artificial or invasive form of nutrition
I “Do” or “Do not” want any artificial or invasive form of hydration
I “Do” or “Do not” want blood or blood productsI “Do” or “Do not” want any form of life sustaining surgery or invasive diagnostic testsI “Do” or “Do not” want to allow physicians to try new medical discoveries on me

The Poet:

Death is as much a reality as birth, growth, maturity and old age. It is the one certainty of life. I recognize this. Therefore, while I am incapable, should a situation arise where my attending physician determines that I will not recover from a disability and that my death is imminent, I DIRECT MY ATTORNEY to permit me the dignity of a peaceful passing. I do not wish to be kept alive by artificial or heroic measures that would only serve to prolong my dying process, but I rather wish to die with dignity and in comfort. In that situation, I wish for treatments that will allow me to die peacefully even though they may abbreviate the dying process, resulting in a hastening of my death.

The Comedian:

Under no circumstances do I wish my fate to be put in the hands of pinhead partisan politicians who couldn’t pass ninth-grade biology if their lives depended on it or lawyers/doctors/hospitals interested in simply racking up big bills.If more than 3 days pass, and I fail to ask for at least two of the following:____ Vodka and Tonic ____a Margarita ____a Beer ____a Bloody Mary ____Single Malt Whiskey ____a glass of wine ____Sex ____T-bone Steak ____Lobster or crab legs ____Barbequed Ribs and mashed potatoes with gravy ____pizza  ____the remote control ____a bowl of ice cream ____the sports page ____Cheesecake  or ____Chocolate, it should be obvious that I won’t ever get any better and that it’s time for me to go.When such a determination is reached, I hereby instruct my appointed person and attending physicians to pull the plug, reel in the tubes, turn off the lights, and call it a day. At this point, it is time to call the New Orleans Blues Funeral Band to come do their thing at my funeral, and ask all of my friends to raise their glasses to toast the good times we have had.(Source: http://whaleyestatelitigation.com/blog/2012/04/what-wishes-should-a-power-of-attorney-for-personal-care-express/)

While a Power of Attorney for Personal Care is a relatively simple document, it is best practice to consult with a lawyer who is experienced in estate planning to have it drafted or legally reviewed. A lawyer may ensure that your Power of Attorney for Personal Care is legally valid in Ontario and is drafted in an unequivocally clear manner so as to be enforceable without issue.

Resources:

Note: You may have your Power of Attorney for Care completed by a qualified Ontario Lawyer. A template form for making a Power of Attorney for Personal Care is available on the Ontario Ministry of Attorney General’s website at: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf.   

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[1] Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s.4(2) [“Health Care Decisions Act”]

[2] Health Care Consent Act, s.4(1)

[3] Health Care Consent Act, s.10(1)(b)

[4] Substitute Decisions Act, SO 1992, c 30, ss.49(1)(b) [“Substitute Decisions Act”]

- Simran Bakshi, Student-at-Law, Toronto

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