Fries with that Will? Part Four

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Mark Handelman

“SPECIAL PROVISIONS,” CONDITIONS, RESTRICTIONS AND INSTRUCTIONS IN A POA

Section 50 of the SDA governs special provisions that may be inserted into a POA which authorize the use of force, detention and/or restraint against the Grantor to assess his or her capacity, or to place the Grantor for care or treatment.  It also governs any provision in a POA by which the Grantor waives the right to apply under the HCCA or SDA to review findings of incapacity. 

In summary, s. 50 stipulates that no such provisions are effective unless an Assessor assessed the Grantor’s capacity at the time the POA was executed or within 30 days thereafter.  The section also requires that the grantor sign a statement indicating that he or she understood the effect of the provision.  Revoking such a provision requires the same process.

In any event, note that there is a common law duty of caregivers to restrain a person.  Section 7 HCCA specifically retains this duty:

This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. 

Other conditions, restrictions and instructions in a POA do not require any special process to be effective.  They usually cover the Grantor’s religious beliefs if they are relevant to treatment decisions, or are intended to reflect the Grantor’s values, beliefs and lifestyle preferences.  Common instructions are of the “no heroic measures” or, “”don’t put me in a nursing home” variety.  These are covered as “Advance Directives” in the next section of this paper.

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About Mark Handelman, BA, LLB, MHSc (bioethics)

Health Law Matters

m.handelman@sympatico.ca (416) 402-9476

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