Area of Law: Wills, Estates and Powers of Attorney
Answer # 154
What is a Power of Attorney for Personal Care?Region: Ontario Answer # 154
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 should you become unable to make these decisions yourself. To properly draft a Will or Power of Attorney; or if you are involved in an estate dispute and need help, call a lawyer now.
Personal care can include your health care, medical treatment, diet, housing, clothing, hygiene, and safety. Although the person you give this power to is called your “attorney,” it does not mean that they are your lawyer. Usually your attorney is your spouse, a relative or a close friend.
Purpose of a Power of Attorney for Personal Care
The main purpose of a Power of Attorney for Personal Care is to give you control and peace of mind. It lets you appoint someone you trust to make decisions on your behalf, and it ensures that your health will be in the hands of someone you have personally chosen, as opposed to someone appointed by the court.
Unless your Power of Attorney says otherwise:
- An Attorney for Personal Care is only allowed to make medical or long-term care decisions if a medical professional or evaluator finds you mentally incapable of making a specific decision.
- For all other kinds of personal care decisions, the attorney can step in if they believe you are incapable — no assessment is required.
A person is your “spouse” if any of the following things are true (for Powers of Attorney for Personal Care):
- you are married to them,
- you have lived together common‑law for at least a year,
- you have a written cohabitation agreement with them, or
- you have a child together.
A person is your “partner” if you have lived together for at least a year and you have a close personal relationship of primary importance to both of you.
A Power of Attorney for Personal Care also gives you a chance to determine the kind of care you may or may not want. For example, you may want to specifically request a certain kind of medical treatment over another. In this way, a Power of Attorney for Personal Care is often similar to a Living Will.
Difference between a Power of Attorney for Personal Care and a Living Will
A Living Will is a document that expresses whether and how you want to be kept alive by medical machines if there is little hope of your recovery. In it, a person will generally indicate what type of treatment they are willing to undergo, and at what point they would like medical treatments to be discontinued. Though a Living Will can be in any written form, it often forms part of a Power of Attorney for Personal Care.
Who can give a Power of Attorney for Personal Care?
There are certain rules about who can give a Power of Attorney for Personal Care, and who can be appointed as an attorney. To give a Power of Attorney for Personal Care, you must:
- be 16 years of age or older, and
- have the capacity to understand what authority you are giving your attorney, and the consequences.
Who can be appointed as an attorney?
The term attorney means someone who is representing you, and making decisions on your behalf, it does not mean that they are a lawyer. Usually your attorney is your spouse, a relative or a close friend.
The attorney you appoint must:
- be 16 years of age or older,
- be mentally competent, and
- not be someone who is being paid to provide you with health care, residential, social, training, or support services. If a person is being paid to provide you with any of these services, they can only be your attorney if they are also your spouse, common-law spouse, same-sex partner, or relative.
Above all, you should select someone who you know well, and trust to follow your instructions or wishes. Before you make your decision, you should ask the person if they are willing to be your attorney, and discuss with them your wishes and their responsibilities.
You can appoint more than one attorney to make decisions jointly. You can also name an alternate to step in if the main attorney is unable to act for any reason.
Requirements for a valid Power of Attorney for Personal Care
To be legal, a Power of Attorney for Personal Care needs to be:
- in writing,
- signed by you in the presence of witnesses,
- signed by two witnesses.
In Ontario, Wills and Powers of Attorney can be witnessed virtually, meaning video technology can be used for witnessing signatures, as long as one of the people witnessing is a licensed Ontario lawyer or paralegal.
The two witnesses must:
- not be the attorney you are appointing, the attorney’s spouse or common-law partner, your own spouse or partner, your child or any person under the age of 18.
Is a Power of Attorney for Personal Care enforceable in another province ?
Legislation in all of the eight provinces that allows for the creation of a Power of Attorney for Personal Care, will consider a Power of Attorney made in another province to be valid and enforceable if it was made in the manner prescribed under their own Act. Practically speaking, this can be tricky because there are several variations in laws, such as different age requirements, what matters can be decided by the attorney, and the number of witnesses required to make it legal. If you move provinces, it is advisable to consult a lawyer and create a new document.
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.
To properly draft a Will or Power of Attorney; or if you are involved in an estate dispute and need help, call a lawyer now.
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