Tag: Power of Attorney for Personal Care
The highly anticipated COVID-19 vaccine is being rolled out in Ontario, with some of the first shots having already been administered yesterday. The University Health Network in Toronto and The Ottawa Hospital will be the first to administer the vaccine. Frontline healthcare workers in hospitals, long-term care homes, and other high-risk settings will be given priority. Vaccinations are expected to expand to residents in long-term care homes, home care patients with chronic conditions, and First Nation communities and urban Indigenous populations later in the winter of 2021. The province has not said when vaccines will become available for every Ontarian who wishes to be immunized. However, once available, the province confirms that vaccines will not be mandated but strongly encouraged.
The mass administration of the COVID-19 vaccine could be a real game changer in the battle against coronavirus. However, a recent public opinion poll conducted by Maru Blue shows that only one-third of Canadians would take the vaccine immediately, about half of Canadians would bide their time to assess its safety or use, and the rest have no intention of getting the shot at all. So it appears that Canadians are somewhat divided on the question of whether and when to get vaccinated.
Given the difference of opinion regarding this new vaccine, it is not inconceivable that multiple substitute-decision makers (SDMs) could disagree on whether to give or refuse consent to the shot on behalf of an incapable person. How would such a disagreement be resolved?
First, it is important to note that Ontario’s capacity legislation sets out a hierarchy of SDMs. Pursuant to section 20 of the Health Care Consent Act (HCCA), the guardian of the person is at the top of this hierarchy, followed by an attorney for personal care, representative appointed by the Consent and Capacity Board (CCB), spouse or partner, parent or children, siblings, any other relatives, and lastly the Public Guardian and Trustee (PGT). The decision of the highest ranking SDM will prevail over dissenting opinions from those who are lower on the hierarchy.
If there are multiple equally ranked SDMs acting with respect to a particular decision, they all have to be in agreement – the majority does not rule. If the SDMs fail to reach a consensus, any of the SDMs could apply to the CCB to try and be appointed the sole representative to make the decision. However, this option is not available where the incapable person already has a guardian of person or attorney for personal care. Another option is for the SDMs to attend mediation to try to come to an agreement. If mediation is not successful, the health practitioner must turn to the PGT for a decision. Section 20(6) of the HCCA states that the PGT is required to act and cannot decline to act in this situation.
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In uncertain times, it can be helpful to remember what we can do to plan for our own health, security, and well-being. In the past, we have blogged about “longevity planning” (i.e. advice for longer life expectancy) and the resemblances it has to executing powers of attorney for personal care (“POA PC”).
In Ontario, powers of attorney for personal care are generally governed by the Substitute Decisions Act, 1992 (the “SDA”). The Health Care Consent Act, 1996 also applies to certain decisions made by attorneys for personal care.
Personal care decisions are about health care, medical treatment, diet, housing, hygiene, and safety. An attorney for personal care will be able to make almost any decision of this nature that the grantor would normally make for him/herself when they were capable.
According to the SDA, an attorney for personal care must follow the known wishes of the grantor or make decisions in the best interest of that person. In doing so, the attorney must choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances.
If you are appointed as an attorney for personal care, below is a non-exhaustive list of steps you should take or obligations you may have:
- Obtain a copy of the POA PC and determine whether it is in effect. The POA PC only comes into effect once the grantor is incapable of making his or her personal care decisions.
- Determine whether there are any specific instructions/restrictions in the POA PC.
- Encourage the grantor’s participation in decision-making and try to foster the grantor’s independence as much as possible.
- Encourage and facilitate communication between the grantor and his/her family and friends.
- Consider developing a guardianship plan. While this is not mandatory for an attorney whose powers stem from a POA PC, it may help provide a roadmap for future decisions.
The above checklist is non-exhaustive list of some of the obligations an attorney for personal care have. Section 66(4) of the SDA also sets out a number of factors to consider when determining what personal care decisions are in the incapable person’s best interest. Most importantly, an attorney for personal care must not lose sight of the fact that he/she is a fiduciary and held to a higher standard.
Making decisions as an attorney can be difficult, particularly in uncertain circumstances. It is important to be prepared. The Ministry of the Attorney General also provides some useful information about an attorney’s obligations here. A lawyer should be consulted so the attorney understands their duties.
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The recent Ontario Court of Appeal decision in Dzelme v Dzelme acts as a helpful reminder that even if an attorney has standing to seek a passing of accounts, the Court may still refuse to grant the passing.
John was named as the attorney for personal care for his father, Ritvers, and sought an accounting of Ritver’s financial affairs from his brother Arnis (Ritvers’ other son) who was the attorney for property. Both John and Arnis agreed that John, given that he was an attorney for personal care, could apply under section 42(4)(1) of the Substitute Decisions Act for a passing of accounts without leave. Nonetheless, the Court of Appeal identified that even if a person has standing to apply for an accounting, it remains the discretion of the Court to order a passing of accounts.
In deciding whether to order the passing, the superior court judge made the following findings of fact: (i) both the father and mother were capable when they executed written instructions to Arnis not to produce any financial information about his affairs to John; (ii) the mother maintained this position in response to John’s motion; (iii) a capacity assessment found that the mother was capable of making her own decisions; (iv) a third brother corroborated Arnis’ evidence that he was abiding by his parent’s wishes; (v) the application judge did not doubt that Arnis was following his mother’s wishes; and, (vi) there was no reason to suspect that Arnis was acting improperly with respect to certain transactions.
On this basis, the Court of Appeal upheld the application judge’s dismissal of John’s request for an order that Arnis pass his accounts of Ritver’s property.
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In 2016, it is no longer out of the ordinary for Canadians to call more than one province home. It has also become more common for Canadians to move among different provinces throughout their lives. Either way, it is important to consider the implications of the validity of a power of attorney for personal care that was granted in one province and whether it will be recognized in another.
For those who have executed a power of attorney for personal care outside of Ontario, the Substitute Decisions Act provides at section 85 (1),
As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,
(a) the power of attorney was executed;
(b) the grantor was then domiciled; or
(c) the grantor then had his or her habitual residence.
However, for those who have executed a power of attorney for personal care within Ontario and the attorney is now seeking to use it in another province, the rules as to its validity will vary.
For instance, in Quebec, the Civil Code governs the rules surrounding protection mandates (the equivalent of a power of attorney for personal care). The most significant distinction in this regime is that a mandate given in anticipation of incapacity is conditional upon “the homologation of the mandate” (i.e. the court procedure confirming the validity of the mandate).
A mandatary (attorney) has no authority to act until this step has been completed. Therefore, any acts performed by the mandatary prior to the homologation of the mandate may be annulled. This measure is seen as a protective tool to help circumvent potential power of attorney abuse.
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An article I posted on Twitter yesterday asked the question, “Is a financial plan enough?” The article raises the importance of what the author calls “longevity planning.” Longevity planning means providing financial advice that addresses the lifestyle changes that come with longer life expectancy. For example, if you want to stay in your home indefinitely, will it need to be modified for aging? How will you get the care you need as you age? What transportation options are available in your area? Longevity planning involves preparation for accommodations that may be needed to maintain a high quality of life as individuals can expect to live longer.
Longevity planning shares some similarities with a Power of Attorney for Personal Care (“POA PC”). First, a POA PC addresses some of the same issues, such as health care, nutrition, shelter, clothing, hygiene and safety. Second, a POA PC may include a plan in the form of instructions. For example, the person who gives the POA PC may have strong feelings about where they want to live, or under what conditions they would consent to certain kinds of medical treatment. If instructions are written in a POA PC, the attorney must follow those instructions unless it is impossible to do so.
If the POA PC does not include any specific instructions, or if the instructions don’t apply to the decision that must be made, the attorney must try to find out if the person expressed any other wishes when they were mentally capable. Those wishes could have been spoken or written down in another place. The attorney’s decisions must be based on those wishes, unless it is impossible to do so.
If the person did not express specific wishes, or if it is impossible to carry them out, the attorney must make a decision that is in the person’s best interests. In deciding what those best interests are, the attorney must consider, among other things, whether the decision is likely to improve the incapable person’s quality of life or prevent it from becoming worse.
Thus, third, a POA PC, in part, addresses quality of life concerns. Financial plans and estate plans have traditionally focused on numbers—such as the amount of money one wants to have when they retire or on the distribution of assets. But such planning can ignore the factors that are fundamental to your own and your loved ones’ peace of mind. As important as it is not to procrastinate in one’s estate planning, it is equally important to incorporate quality of life planning as a central element in one’s overall estate plan.
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