Monday, October 21, 2013

What is 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.
There may come a time when you are no longer capable of making key decisions regarding your medical treatment. In such circumstances, it becomes necessary for a substitute decision-maker to step in to make personal care decisions on your behalf. 

In order to preserve your autonomy to make such choices, it is imperative to set out your wishes well ahead of time and to appoint a suitable individual to carry out these decisions.  The means by which to do this in Ontario is by executing a Power of Attorney for Personal Care.

A Power of Attorney for Personal Care is a legal document that allows you to name someone you trust to make your personal care decisions when you are no longer in a position to do so yourself.  In Ontario, an individual must be appointed as your Attorney for Care in order to act as your substitute-decision maker. In the event that you do not have an Attorney for Care, your next of kin or the Public Guardian Trustee will make any decisions required with respect to your medical treatment.  This substitute decision-maker will be designated in accordance with a hierarchy set out in the Health Care Consent Act.

In addition to conferring someone with the authority to act on your behalf, a Power of Attorney for Personal Care provides an opportunity to list any specific instructions, conditions and/or restrictions that you may have with respect to what personal care decisions are ultimately taken.  While this is in essence similar to a "Living Will," it is important to appreciate that a Power of Attorney for Personal Care is not the same thing. The distinction between the two lies in the purpose of each. 

The objective of a Power of Attorney for Personal Care is to appoint an individual to act as a decision-maker for personal care decisions.  While an Attorney for Care may be directed in reaching such decisions by written instructions included in the Power of Attorney for Personal Care, the focus of this document remains on the question of who is named the substitute decision-maker.  Accordingly, an Attorney for Care will still have the authority to make a choice even if you have not expressed your wishes regarding medical treatment.

By contrast, a Living Will is a document that sets out your instructions with respect to possible personal care decisions that may need to be taken in the future.  The focus of a Living Will is on content, that is, what are your treatment and personal care wishes. It does not necessarily name the individual who will carry out such decisions. Needless to say, the degree of overlap is such that a Living Will may well be an inherent part of any well-executed Power of Attorney for Personal Care.

It was once said, “Let our advance worrying become advance thinking and planning.” A Power of Attorney for Personal Care is instrumental in transforming your worries and concerns into planning for your end-of-life care.

- Simran Bakshi, Student-at-Law, Toronto
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