Power of Attorney for Personal Care: Duties of the Attorney.
A Power of Attorney for Personal Care is an extremely important document that authorizes a person to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.
Whether you are person that is considering granting a Power of Attorney for Personal Care (“POA”) or an attorney that has already been authorized to make these decisions, it is important to understand the obligations that come with it.
In Ontario, it is the Substitute Decisions Act (“SDA”) that governs POAs. This Act and its Regulations set very strict requirements for an attorney acting under a POA.
The statute makes it clear that the person appointed must exercise their powers and duties diligently and in good faith.
The SDA makes it clear that the attorney must keep records of decisions made by the attorney on the incapable person’s behalf.
These records must include:
A list of all decisions regarding health care, safety and shelter made on behalf of the incapable person, including the nature of each decision, the reason for it and the date;
A copy of medical reports or other documents, if any, relating to each decision;
The names of any persons consulted, including the incapable person, in respect of each decision and the date;
A description of the incapable person’s wishes, if any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;
A description of the incapable person’s current wishes, if ascertainable and if they are relevant to the decision;
For each decision taken, the attorney’s opinion on why the decision was in the best interest of the incapable person.
An attorney under a power of attorney for personal care shall also keep a copy of the power of attorney for personal care.
The SDA goes on to set out guidance for the attorney to use when deciding what is in the best interest of the incapable person. The attorney must take into consideration: the values and beliefs that the attorney knows the person held when capable and believes the person would still act on if capable; The person’s current wishes, if they can be ascertained; and whether the attorney’s decision is likely to:
Improve the quality of the person’s life,
Prevent the quality of the person’s life from deteriorating, or
Reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
The attorney must also take into consideration whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
If you considering granting a POA, it is very important that you familiarize yourself with the powers and responsibilities that come with acting as an attorney. Be honest with yourself about who you choose; ask yourself if the intended person has the necessary skills and desire to satisfy all of the requirements. This will help you to choose the right person for the job.
If you have been appointed attorney under a POA, it is very important to familiarize yourself with the powers and responsibilities that come from accepting this position. Be honest with yourself – ask yourself if you have the necessary skills and desire to satisfy all of the requirements? Once you start acting under a POA, you are automatically governed by the Substitute Decisions Act.
In this post, I used the short form “POA” to refer to Power of Attorney for Personal Care. It is important to point out that there are several different kinds of recognized Powers of Attorney in Ontario.
If you have any questions about appointing an attorney or acting as an attorney, please do not hesitate to contact my office. The initial consultation is always free.