Estates & Wills & Trusts

What you should know about powers of attorney for personal care

By AdvocateDaily.com Staff

In the final instalment of a two-part series on powers of attorney, Toronto wills and estates lawyer Elinor Shinehoft discusses POAs for personal care.

Laypeople can benefit from legal counsel when drawing up power of attorney (POA) documents, says Toronto wills and estates lawyer Elinor Shinehoft.

Although template POAs can easily be found online, Shinehoft, principal of Shinehoft Law, suggests people should steer clear of them.

“Done properly, a power of attorney is a really useful estate-planning tool that makes things flow a great deal easier,” she tells AdvocateDaily.com. ”But it can turn into a mess if it’s not done right.”

Under the Substitute Decisions Act, attorneys for personal care take responsibility for decisions about the person’s health care, nutrition, shelter, clothing, hygiene and safety.

Like those for property, Shinehoft explains that POAs for personal care impose fiduciary duties on the attorney, who must act in the grantor’s best interests and take their expressed wishes into consideration, even if they are incapable at the time.

For that reason, she says people should choose someone they trust.

“These are really important decisions, and if you have certain wishes about treatments, you want to make sure the person is going to carry them out,” Shinehoft says.

But the vastly different nature of the two types of POA means that the person selected as attorney for property may not always be a good choice when it comes to personal care, she adds.

“I had one client who chose different daughters for the roles,” Shinefhoft says. “She knew that one of them would not be able to bring herself to authorize the do-not-resuscitate order that she wanted to be imposed if she got to a stage where she was beyond help.

“You need to choose someone of the same mindset or strength to follow through on important decisions,” she adds.

Here are some of the most common sources of problems surrounding POAs for personal care, Shinehoft says.

Jurisdiction

According to Shinehoft, few people appreciate the breadth of topics covered by a POA for personal care. Many wrongly assume their role will be confined to speaking with doctors during an acute phase of illness.

“As well as medical decisions, it covers daily activities such as feeding and security of living conditions,” she says. “If there’s a decision over whether a person should return home from hospital or to a palliative-care facility, that person has the power to say yes or no.”

Capacity

Unlike the typical POA for property, which kicks in immediately, those for personal care only take effect once a person has become incapacitated.

That can cause issues if there is a question over the ability of the person executing a POA document, or if they wish to revoke one made earlier, Shinehoft says.

“You need to have competence at the time the document is signed. You can’t grant the power or revoke it unless you have the capacity to do so,” she explains.

Shinehoft says things are complicated by the fact that there are different tests for capacity, depending on the type of POA the grantor is executing.

“It’s not a medical test, but a legal one, so effectively I am making the determination as to whether someone has the capacity to sign by asking them certain questions,” she says. “If someone is in the early stages of Alzheimer’s or dementia — when they are likely to have lucid moments — it becomes even more difficult.

“If they instructed you on a good day, but then waits to sign and seems to have deteriorated, then it’s going to be a problem. Depending on the issue, we may need to have a geriatric specialist make a professional assessment and help us determine whether they have capacity,” Shinehoft says.

For part one, where Shinehoft explored the POA for property, click here.

To Read More Elinor Shinehoft Posts Click Here