Powers of Attorney for Personal Care in Ontario
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This is the second posting about Power of Attorneys for Personal Care in Ontario.
What are the legal requirements to have a valid Power of Attorney for Personal Care?
To have a valid Power of Attorney for Personal Care under the Ontario Substitutes Decision Act:
- It must be written and signed by the grantor and two witnesses (who must both be present when the grantor executes the Power of Attorney for Personal Care).
- The document must authorize a person to be an attorney to make decisions, on the grantor’s behalf, concerning the grantor’s personal care: s. 46(1).
- A person cannot act as an attorney if that person provides health care to the grantor for compensation or provides residential, social, training or support services to the grantor for compensation. The exception to this rule is if that person is the grantor’s spouse, partner or relative: s. 46(3).
- The grantor (i.e. the person giving the power of attorney) must have capacity to give the continuing power of attorney (i.e. through knowledge, awareness, appreciation, etc.): s. 47.
- A person with capacity is capable of revoking a continuing power of attorney.
- The document must be signed by two witnesses who are (among other things) not the grantor or attorney’s spouse or partner, a person less than 18 years old, or a child of the grantor (or someone who the grantor has demonstrated a settled intention to treat as his or her child): ss. 48 and 10(2).
The Power of Attorney need not be in a set form or template: s. 46(8) of the Ontario Substitute Decisions Act.
A word or two on the requirement that the grantor must have sufficient capacity to grant the power of attorney. The grantor must be over the age of 16 and must be mentally capable as demonstrated by things like:
- knowing whether the proposed attorney has a genuine concern for their welfare; and
- appreciates that the person may need to have the proposed attorney make decisions for them (s. 47).
When does a Power of Attorney for Personal Care take effect?
A Power of Attorney for Personal Care takes effect when a person is incapable of understanding information that is relevant to make a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene, or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decisions: s. 45.
In other words, if a person cannot make some or all of their personal care decisions due to mental incapacitation, then the Power of Attorney for Personal Care is triggered.
Generally, it’s the attorney appointed under the Power of Attorney who determines when this has happened, but you can designate in your Power of Attorney for Personal Care otherwise (e.g. you want a formal assessment from a medical practitioner to confirm your incapacity; you can specify who or just make a general request, etc.).
How does one terminate a Power of Attorney for Personal Care?
A Power of Attorney for Personal Care is terminated:
- When the attorney dies, resigns, or becomes incapable of personal care unless another attorney (joint or substitute) is provided for the in Power of Attorney for Personal Care;
- When the court appoints a guardian for the grantor;
- When the grantor executes a new Power of Attorney for Personal Care (unless multiple Power of Attorneys are personally provided for);
- When the Power of Attorney for Personal Care is revoked, which must be in the same way as it was executed – namely, in writing, signed and dated before 2 appropriate witnesses (and it should also refer to the Power of Attorney that is being Revoked or parts therein): s. 53
By the way, if you need a Power of Attorney for Personal Care, then look no further:
This Legal Form can be used to appoint a person to make personal care decisions on your behalf when you are no longer able to do so. We also have a Continuing Power of Attorney for Property available on Dynamic Legal Forms if you need one, as well as a Living Will (these things are typically done all at the same time with your Last Will and Testament). Here’s the sample Video Guide that comes with this Power of Attorney for Personal Care: