April 29, 2020

Before COVID-19, many of us had earmarked 2020 as the year we would get our affairs in order, including preparing powers of attorney for personal care and property. Unfortunately we may have not gotten around to it.  The pandemic has accelerated discussions about intubation, CPR and end of life care.  Additionally, many people, especially those who hold assets in their name alone, are concerned about who would pay their bills and manage their assets if they became incapable.

Substitute Decisions Makers and Health Care Decisions

I previously wrote a blog on who can make medical decisions for an incapable person who does not have a power of attorney for personal care.  To summarize, the Health Care and Consent Act (“HCCA”) provides a hierarchy as to who can be appointed a substitute decision maker (“SDM”) on behalf of an incapable person. The SDM can provide consent for treatment decisions.  While the HCCA does not address all personal care decision, it does allow SDMs to provide consent for medical treatment and some other personal assistance matters.

A person may also apply to become the guardian of personal care for an incapable person.  This will require a court application and a court order.

Advance Directives/ Goals of Care

Some powers of attorney for personal care include living wills/advance directives that outline the grantor’s directions about medical treatment and end of life care.  However, medical terminology and a person’s wishes are always changing and difficult to capture in a static document. However, these directives are useful to guiding SDMs and can be used as evidence of the grantor’s capable wishes.

Many hospitals and long-term care homes ask patients or clients to provide a “goals of care” plan. While it is helpful to have these discussions while a person is capable, they are not a substitute for consent to medical treatment. Goals of care plans should be reviewed often and never replaces informed consent to treatment by either the patient or SDM.  However, there are some exceptions to providing informed consent when it comes to emergency treatment.

Substitute Decision Makers and Property Decisions

If one becomes incapable of managing property, unlike the regime set out in the HCCA, a family member does not automatically enter into a position of a SDM.  If someone is deemed incapable to mange their property pursuant to the Substitute Decisions Act or the Mental Health Act, the Public Guardian and Trustee becomes the statutory guardian of property for the incapable person.  A family member can apply to the Public Guardian and Trustee to replace the Public Guardian and Trustee as the guardian of property for the incapable person.  Someone can also apply to the court to be appointed the guardian for property for the incapable person.

Should I Grant a Power of Attorney for Personal Care and/or Property during a time of social distancing.

The Public Guardian and Trustee has offered powers of attorney kits for personal care and property for many years. However, before moving ahead with the DIY option, consideration should be given to the power of these legal documents.

We often underestimate the authority these documents convey to our SDMs.  It is also a heightened time for financial abuse and powers of attorney documents can enable financial misfeasance. Some powers of attorney for property documents do not require a finding of incapacity and can be used immediately. A power of attorney for personal care can also contribute to controlling behaviour by an abuser.  For example, as a litigator, I often hear about situations in which an adult child exerts control over a frail parent by threatening to determine where they live.

While not required, you may wish to seek legal advice and assistance from a lawyer.   Many estate planners have been working around the clock to educate themselves on the new temporary requirements regarding the witnessing of these documents.  Additionally, they can offer legal advice about when the documents come into effect, the different types of power of attorney for property documents, provide evidence as to the grantor’s capacity, and offer some guidance about the attorneys’ fiduciary obligations.

However, there is comfort that even for people who have not appointed SDMs while capable, there is a process in place to allow for SDM to make medical treatment decisions on their behalf and a process in place to facilitate access to an incapable person’s property in a timely manner.