When we think of estate planning, we often focus on the importance of signing a Will. However, planning for one’s possible incapacity is another critical aspect of proper estate planning. This generally involves signing both a Power of Attorney for Property and a Power of Attorney for Personal Care. An ‘Attorney’ is defined in Ontario as a ‘substitute decision-maker’ and should not be confused with the terminology of our neighbours to the south where lawyers are referred to as attorneys.
Before signing a Power of Attorney document, one must have the required mental capacity. This is a legal test which is set out in Ontario’s Substitute Decisions Act. There is a different test of capacity for signing each Power of Attorney as well as the capacity to make personal care decisions and manage one’s property.
Note that all decisions under the law are categorized as either ‘property’ or ‘personal care’. Today’s blog will focus on substitute decision-makers for personal care.
What if someone is not capable of signing a Power of Attorney for Personal Care?
In such cases, we must look to other options for having a substitute decision-maker for personal care appointed. Below, we set out a brief review of the capacity required to sign a Power of Attorney for Personal Care as well as the different options for having a substitute decision-maker for personal care appointed.
Power of Attorney for Personal Care
In a Power of Attorney for Personal Care, the ‘grantor’ (the person signing the document) appoints one or more persons to make personal care decisions for them in the event that they are not able to make those decisions for themselves. In order to meet the legal test for capacity, the grantor needs to understand (1) that the person(s) they wish to appoint are truly concerned with their well-being and (2) that the named Attorney(s) may be required to make personal care decisions for them.
Other Substitute Decision-Makers for Personal Care
If someone does not have the capacity to sign a Power of Attorney for Personal Care, there are other means by which a substitute decision-maker can be appointed:
- Substitute Decision-Maker under the Health Care Consent Act: Where an individual is incapable of making a decision regarding their consent to medical treatment, admission to a care facility and personal assistance services within a facility, we look to the Health Care Consent Act to determine who should make the decision on behalf of the individual. The Act sets out a list of people who should be called upon by the health care provider to make the decision on behalf of the incapable person. The list is ranked in priority.
- Representative Appointed by Board: It is possible for an individual to make an Application under the Health Care Consent Act to the Consent and Capacity Board (CCB) to be appointed as someone’s ‘representative’. The representative’s decision-making would be limited to consenting or refusing medical treatment, admission to a care facility and personal assistance services within a facility.
- Guardian of Personal Care: Pursuant to the Substitute Decisions Act, It is possible to make an Application to court to ask to be appointed as an incapable person’s Guardian of the Person. The Order signed by the judge will specify whether the Guardian has broad or limited authority over the incapable person’s personal care. This option is meant to be a last resort.
Stay tuned…our next blog will focus on substitute decision-making with respect to property.
