Area of Law: Wills, Estates and Powers of Attorney
Answer # 156
What if you do not have a Power of Attorney for Personal Care?Region: Ontario Answer # 156
A Power of Attorney for Personal Care is a written document in which you give someone the power to make decisions about your personal care if you become unable to make these decisions yourself.
Also, a relative or friend can apply to the court to become your “Guardian of the Person.”
Your family can make personal care decisions for you
If you become mentally incapable and you do not have a Power of Attorney for Personal Care, your family has automatic authority to make certain personal care decisions on your behalf. This means that they do not need to apply to the court for permission. For example, your family can make decisions about your health or medical treatment, decisions about personal assistance services such as bathing, and decisions about whether to admit you to a long-term care facility.
Although these decisions can be made by any member of your family, certain relatives have priority over others. The highest priority goes to someone who has been appointed by the court as your legal “representative.” A member of your family could become your legal representative by applying to the Ontario government’s Consent and Capacity Board. They would then have priority over any other family members, and would be asked first when decisions need to be made.
If no-one has applied to be your “representative,” then your spouse or partner would have the highest priority, and would be asked first. If they are not available, then your children who have reached the age of 16 would be asked next. If you do not have a spouse or any children who are at least 16 years old, then your parent, your brother or sister, or any other relative will be consulted. So, for example, if you become mentally incapable of making a decision about surgery, then your doctor must obtain consent from your family. Your doctor would begin by seeking consent from a representative or from your spouse or partner. If they are not available, then your doctor would ask your child, and so on down the list.
As a final resort, the Office of the Public Guardian and Trustee can make personal care decisions on your behalf.
Someone can apply to the court to be your guardian
If you become mentally incapable of making personal care decisions and you do not have a Power of Attorney for Personal Care, any relative or friend can apply to the court to become your Guardian of the Person, provided they are at least 16 years old and are not being paid to provide you with health care, residential, social, training, or support services. If they are being paid to provide you with any of these services, they can only apply if they are your spouse, partner, or relative.
Your guardian is responsible for making all of your personal care decisions. They must keep in touch with you, and explain to you the kinds of decisions that are being made. Your guardian also has a responsibility to make decisions in a way that is consistent with how you would have made them yourself.
More information about Wills and Powers of Attorney can be found from the Ministry of the Attorney General.
Getting the legal help you need
Wills and Powers of Attorney are extremely important documents and relatively inexpensive to have prepared professionally. Drafting a Power of Attorney involves a number of technical legal details. If it is not prepared correctly, it will not be legal. When drafting a Power of Attorney, or if you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
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