Area of Law: Wills, Estates and Powers of Attorney
Answer # 155
When does a Power of Attorney for Personal Care take effect and can you revoke it?Region: Ontario Answer # 155
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. It takes effect if you become mentally incapable of making some or all of your personal care decisions, and can generally be revoked at any time up to that point.
When does it take effect?
Generally, a Power of Attorney for Personal Care comes into effect when the maker lacks the capacity to care for themselves. How capacity, or lack of it, is determined, is based on provincial legislation and the terms of the Power of Attorney.
Most often, it will be the person you have appointed as your attorney who decides the point at which you have become incapable of making personal care decisions. However, If you want to name a particular medical professional who will be responsible to determine if you lack capacity, or just make a general request that your incapacity be confirmed, you can state these requests in your Power of Attorney document.
In these situations, under the Ontario Substitute Decisions Act, a “capacity assessment” is required. A capacity assessment is the formal assessment of a person’s mental capacity to make decisions about property and personal care. This means a physician or psychologist must be consulted and a written declaration that the maker lacks capacity must be made. The person who assesses you is called a “capacity assessor.” Practically speaking, even in cases where the law or the document does not require it, the attorney or representative will almost always ask for a capacity assessment. Having a capacity assessment is an important procedure that can prevent an attorney from liability.
Can you revoke it?
Generally, a Power of Attorney lasts until your death. However, you can revoke a Power of Attorney at any time if you are mentally competent. By revoking a Power of Attorney, it means that it is cancelled and no longer effective.
There is no special form that must be completed to revoke a Power of Attorney. However, to legally cancel your Power of Attorney, you must put in writing that you are revoking the Power of Attorney and:
- state the date or the occurrence on which the revocation will take place,
- sign it in front of two witnesses,
- the two witnesses must then also sign. The witnesses do not need to be the same witnesses who signed the original Power of Attorney. However, there are restrictions on who can be a witness to the cancellation of your Power of Attorney.
The following people cannot be a witness:
- your attorney,
- the spouse or partner of your attorney,
- your own spouse or common-law partner,
- your child,
- anyone under the age of 18, or
- anyone who has been appointed as your guardian.
Your Power of Attorney will not be cancelled if the revocation is not properly prepared and witnessed.
You should also give a copy of the revocation to anyone who was aware of the previous Power of Attorney. This way, they will know that it has been cancelled.
When does it cease to have effect ?
In addition to revoking a Power of Attorney for Personal Care, it will cease to have effect under other circumstances, such as:
- upon the death of the maker,
- if it is determined that the maker has capacity,
- upon the death, resignation, or incapacity of the attorney or representative,
- upon the occurrence of an event stipulated in the document, or
- if a court determines that it ceases to have effect.
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.
You now haveoptions: