POWERS OF ATTORNEYWHAT IS THERE TO KNOW

CARMELINA CIMAGLIA, MSW, RSWGERIATRIC PSYCHIATRY

SEPTEMBER 2013

The Substitute Decisions Act (SDA)• Law came into force in April 1995 - amendments

to the law came into power in March 1996• SDA governs what may happen when someone is

not mentally capable of making certain decisions about their own property or personal care

• A key feature of the Act – designate someone to make personal care or financial decisions if unable to make decisions – using a legal document called a Power Of Attorney

Types of Power of Attorney in Ontario • Continuing Power of Attorney for Property: legal

document giving a specific person (s) the legal authority to make decisions about finances - it is called “continuing” because it can continue to be used after the person who gave it is no longer mentally capable

• General (non-continuing) Power of Attorney for Property: given to someone to look after financial transaction while you are mentally capable, but in need of assistance for a period of time or for a specified transaction (s) – it cannot be used if you become mentally incapable

• Power of Attorney for Personal Care: legal document giving a specific person (s) the authority to make personal care decisions on your behalf – only comes into effect if the grantor becomes incapable of making decisions on their own

Power of Attorney forms

• Law does not require to use a lawyer to draw a POA – may wish to obtain legal advice in creating these forms

• Forms can be purchased in bookstores• Forms can be downloaded on the internet• OPGT provides forms

Continuing Power of Attorney for Property (CPOAP)

• To be valid, the document must:– Be called a Continuing Power of Attorney for

Property– Names one or more persons to act as the grantor’s

attorney for property– Signed by the grantor and dated– Signed by two witnesses who saw the grantor sign

the document

When does the CPOAP take effect?

• As soon as it is signed and witnessed, unless there are conditions specified – immediate effectiveness

• If there are instructions, it becomes effective when the conditions are met – postponed effectiveness

• Conditions - may result in complications and delays if the need to use the document arises

What powers will the attorney have?• If no restrictions, the attorney will be able to

do almost anything concerning the grantor’s finances

• The attorney can sign documents, start or defend a lawsuit, sell property, make investments and purchase things for the grantor

• The attorney cannot make a Will or give a new CPOAP on the grantor’s behalf

Revocation of the CPOAP• The grantor must state in writing that he/she

is “revoking it”• No special form required for a revocation

however it must be signed and witnessed by two people

• Give the revocation statement to the attorney and to other parties involved with the grantor’s income or property

• The original must be destroyed

If no CPOAP exists and the individual becomes incapable?

• If there are no assets and only pension income from the government – family/friend may be able to ask the pension source for permission to manage this income

• If finances are extensive, family/friend can apply to be the person’s guardian

• If there is no one else willing, able and suitable, the OPGT may act as the guardian

Power of Attorney for Personal Care (POAPC)

• the attorney may be asked to make more intimate decisions than paying bills

• must be trustworthy, have the integrity to consider the grantor’s beliefs and values when making decisions

• Be able to step outside of their own system of values and make decisions the grantor would want – whether they agree with them or not

Who cannot be an attorney for personal care?

• If providing health care to the grantor for compensation (unless the proposed attorney is the grantor’s spouse, partner or relative)

• If providing residential, social, training or support services for compensation (unless the proposed attorney is the grantor’s spouse, partner or relative)

What decisions can an attorney for personal care make?

• Health care (includes medical treatments)• Nutrition• Shelter• Clothing• Hygiene• safety

When is a POAPC effective?

• Effective when the grantor becomes incapable of making their own personal care decisions

• Determination of mental capacity

How to revoke a POAPC…• If the grantor is capable of giving a POAPC,

they are capable of revoking it• It must be in writing, signed by the grantor,

and witnessed by two people• Need for written revocation - assumption that

the document is in the hands of the attorney• Need to assure the revocation is distributed to

any third parties involved, e.g. physician, nurse

How to revoke a POAPC…(cont’d)

• If copy is in the grantor’s possession and there are no other copies - the copy would not be considered in effect therefore not requiring revocation

• The document could simply be destroyed and a new POAPC executed

Reasons for appointing an attorney for personal care…

• When the grantor wants a decision maker other than the one designated by law

• When family disagreement is anticipated• When mental incapacity is anticipated• When personal assistance services may be

required in a private home setting

Wishes and Instructions

• Do not have to be written in a POAPC• Some forms contain standard end of life

clauses with specific instructions – caution• Instructions can be written on extra

pages/separate document – can easily make changes without revoking POAPC

References• Best, J. & Oosterhoff, D. Willing and Able – A

Practical Guide to Powers of Attorney in Ontario. 2nd Ed., 2004

• A Guide to the Substitute Decisions Act. Queen’s Printer of Ontario, 2000

• Office of the Public Guardian & Trustee – Powers of Attorney and “Living Will” – Questions and Answers. Queen’s Printer of Ontario, 2013