It’s Super Bowl Sunday as I write this, and in the lead-up to the game, football fans are debating what game changers may be possible to gain an advantage and win. Why not apply the same breakthrough analogy to address critical issues in managing care? What game changers can we trigger to deliver more productive outcomes for people?

The Power of the Powers of Attorney for Personal Care (POAPC) & Substitute Decision Making

With a rapidly aging population, fractured health, and social services systems, and more complex care situations arising as people live longer, we need to rethink our approaches and systems. In our practice, we are seeing a steady increase in issues leading to family disputes around substitute decision-making and Powers of Attorney for Personal Care (POAPC).

Clients and families often do not always appreciate that a POAPC is a powerful legal document. It allows the grantor to appoint one or more persons to make care decisions for them if they cannot decide for themselves. It also has a wide breadth of powers where the attorney can not only make medical and health care decisions but also make decisions related to such things as providing a safe environment, shelter and accommodation, what you eat, who you socialize with, clothing, and personal hygiene and care. Families or attorneys often think the POAPC is simply a document appointing someone in the family “to decide to end life support if I’m in the hospital” without understanding the range of powers which could impact their life and lifestyle.

Many clients do not understand that the POAPC enables them to appoint a personal substitute decision-maker of their choosing specifically for personal care. However, suppose a substitute decision-maker is quickly required for urgent medical care, and the individual does not have a POAPC and cannot speak for themselves. In that case, the hierarchy of appointments outlined in the Health Care and Consent Act applies. Within that hierarchy, individuals are often surprised to learn the list of family members who can act for them.

Consider this recent scenario: An older couple in their 80s requested advice on developing a personalized lifestyle plan. They have ultra-high net worth with homes in different countries and wanted to be sure they had planned out where they might live in later years and who would care for them. During the conversations, we realized they did not have POAs for Personal Care. They are estranged from their two sons and do not want the sons involved in any way in their care. They had updated their wills recently and addressed POAs for Property. They did not know the substitute decisions hierarchy. They did not realize that if, for example, they were both in a car accident, badly hurt, and unable to speak for themselves, their estranged sons would be contacted by healthcare providers to make medical decisions. Surprising to think that even with numerous advisors, there was no specific discussion about POAPCs in light of their circumstances.

Educating Attorneys on Their Roles & Responsibilities

Educating attorneys on their roles and responsibilities is equally important. In our experience, a frequent reason for family disputes arises when an attorney for personal care is trying to limit other family members from having access to or visiting the incapable individual.

Outlined in their Guide to the Substitute Decisions Act, the Office of the Public Guardian and Trustee notes that attorneys for personal care must make decisions in accordance with the Substitute Decisions Act and the Health Care Consent Act. The Attorney must also consider and act on the known wishes or instructions of the person when they had capacity. Other duties include the following:

• to act diligently and in good faith,
• to try to foster the person’s independence, as much as possible,
• to choose the least restrictive and intrusive course of action that is available and appropriate,
• to explain the attorney’s powers and duties to the incapable person,
• to encourage the person to participate, to the best of their abilities, in personal care decisions about them,
• to seek to foster regular personal contact between the incapable person and supportive family members and friends; and
• to consult from time to time with supportive family and friends who provide personal care for the person.

In 2017, the Law Commission of Ontario released its report Legal Capacity, Decision-Making, and Guardianship. It made a series of recommendations[1] to improve the use and understanding of POAs in Ontario and to provide more clarity for individuals, families, healthcare providers, and other stakeholders who rely on POAs. To date, many of those recommendations have not been implemented.

Helping Your Clients Understand

Effective education is a game-changer. If you are working in the estate planning industry or advising clients, consider taking the time to use a scenario-based approach to help clients understand the actual details of their circumstances before they choose an attorney. It would also be helpful to have a repository of straightforward information and tools that could easily be retrieved to understand the powers, responsibilities, and risks associated with substitute decision-making and POAs for Personal Care. There are numerous educational resources across various sites such as The Public Guardian and Trustee, Elder Abuse Ontario, the Advocacy Centre for the Elderly, etc. Still, few clients or families know where to find this information.

[1] https://www.lco-cdo.org/en/our-current-projects/legal-capacity-decision-making-and-guardianship/final-report/6-powers-of-attorney-enhancing-clarity-and-accountability/