Fries with that Will? Part One

We are pleased to introduce Mark Handelman, BA, LLB, MHSc to our community.  Mark has generously offered to share an article he wrote called:
POWERS OF ATTORNEY FOR PERSONAL CARE: FRIES WITH THAT WILL?
We will be profiling his article over 10 weeks.  Here is Part One.

INTRODUCTION

A Power of Attorney for Personal Care may be the most important document you put in front of your client. 

The decisions your client entrusts to Attorneys are crucial to his or her dignity, liberty, security and well being at a time when the client may not be able to assert his or her own rights.  A Power of Attorney for Personal Care authorizes the named Attorney or Attorneys to make decisions about admission to a care facility, about treatment of chronic or acute medical conditions and about whether or not the Donor should be physically restrained for his or her protection or the protection of others.  It may also contain instructions about whether or not to begin, discontinue or not provide treatments that will continue life in the end stages of terminal illness.

However, too frequently, the Power of Attorney for Personal Care is an afterthought document, added to the will and Power of Attorney for Property package without serious discussion between lawyer and client between client and proposed Attorneys.

This paper provides an overview of Powers of Attorney for Personal Care and addresses some of their inherent pitfalls.

FORMAL VALIDITY

Powers of Attorney for Personal Care (“POA”) are authorized by sections 41 et seq. of The Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”).  The document authorizes the person or persons named as attorneys “to make, on the grantor’s behalf, decisions concerning the grantor’s personal care” [s. 41(1)].  When more than one attorney is appointed, they must act jointly unless the POA specifies otherwise (s. 41(4), SDA).  Other subsections authorize appointment of The Public Guardian and Trustee as attorney, prohibit appointment of health care providers for compensation as attorneys unless they are the spouse or a relative of the grantor and authorize instructions in the POA that are consistent with the SDA.

While a POA need not be in any particular form, it must be executed in the presence of two witnesses, who also sign the document.  The grantor must be at least 16 years of age at the time of execution (SDA s. 43) and the Attorneys must be at least 16 at the time they exercise a power of decision on the authority of the POA (s. 44).  It is therefore acceptable to appoint as Attorneys persons not yet 16, recognizing that they have no authority before then.

Witnesses to the execution of a POA must be at least 18 years old.  They may not be the grantor’s spouse or partner, a child of the grantor or a person to whom the grantor stands in loco parentis, or a person whose property is under guardianship (ss. 48 and 10 SDA).  However, s. 48 also authorizes a court application to declare the POA effective in breach one of those provisions “if the court is satisfied that it is in the grantor’s interests to do so.”