Introduction:

Understanding the role and purpose of a power of attorney for personal care is integral to the proper drafting and planning of these documents. Recall these documents only become legally effective when the grantor (you) becomes incapable of the particular care decision that is required to be made. 

The Substitute Decisions Act, 1992 sets out that with a grant of a power of attorney for personal care, the grantor gives the appointed attorney the authority to make decisions to which the Health Care Consent Act, 1996 ("HCCA") applies, on behalf of the incapable grantor in accordance with the HCCA. Decisions under the HCCA specifically deal with treatment, which is defined in section 2 of the HCCA to be anything done for therapeutic, preventative, palliative, diagnostic, cosmetic or health related purpose. A person will have capacity to consent to treatment under the HCCA if he or she is able to understand the information relevant to a decision and appreicate the reasonably foreseeable consequences of a decision or lack of decisons. 

If an attorney is making a treatment decision on behalf of an incapable grantor then they must do so according to the principles set out in the HCCA for giving or refusing consent to treatment, which are:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish;
2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests. 

According to the HCCA, the grantor's "Best Interests" are to be determined by taking into account:

1. The values and beliefs that the person knows the incapable person held when capable and belives he or she would still act on if capable; 
2. Any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and
3. The following factors: 
   1. Whether the treatment is likely to, 
      1. Improve the incapable person's condition or well-being; 
      2. Prevent the incapable person's condition or well-being from deteriorating, or
      3. Reduce the extent to which, or the rate at which, the incapable person's condition or well-being is likely to deteriorate. 
   2. Whether the incapable person's condition or well-being is likely to improve, remain the same or deteriorate without the treatment; 
   3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her, and
   4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed. 

Finally, with respect to decisions to which the HCCA does not apply, the attorney must make decisions on behalf of the incapable grantor in accordance with the following: 

1. The wishes or instructions in respect of a particular set of circumstances, which were expressed by the incapable grantor while he or she was capable; 
2. The attorney must use reasonable dilligence to determine whether there are such wishes or instructions; 
3. A later wish or instruction expressed while capable prevails over an ealier wish or instruction, and
4. If the attorney does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney must make the decision in accordance with the incapable person's best interests. 

The Substitute Decisions Act, 1992 provides a list of factors the attorney should consider in the determination of the incapable person's best interests, which are as follows:

1. The values and beliefs that the attorney knows the person held when capable; 
2. The person's current wishes if they can be ascertained; 
3. The following factors:
   1. Whether the attorney's decision is likely to:
      1.  Improve the person's quality of life; 
      2. Prevent the person's quality of life from deteriorating, or
      3. Reduce the extent to which, or at the rate at which, the quality of the person's life is likely to deteriorate. 
   2. Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternate decision. 

One can see that when no specific wishes are set out in a power of attorney, the notion of "Best Interests" becomes the foreground for litigation. 

If you do not have specific wishes concerning the provision of health care decisions/instructions, a Standard Clause can be inserted into your power of attorney instead.

The Standard Clause to be used to guide your attorney's in providing instructions/decisions concerning health care on your behalf is as follows:

"Without limiting the discretion of my attorneys hereunder, it is my desire that should I have an incurable injury, disease or illness regarded as a terminal condition by my physician and if my physician has determined that the application of life-sustaining procedures would serve only artificially prolong the dying process, and that my death will occur whether or not life-sustaining procedures are utilized, I direct that such procedures be withheld or withdrawn and that I be permitted to die with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain. "

 

In addition to specific wishes and/or the use of the Standard Clause referred to above, clients often insert a clause known as a "Living Will" in their Power of Attorney for Personal Care.

The wording of a "Living Will" clause is as follows: 

"I do not wish to have my life unduly prolonged by any course of treatment or any other medical procedure which offers no reasonable expectation of any recovery from life threatening physical or mental incapacity, except any such course of treatment or medical procedure as may be necessary for the relief of suffering. I direct my Attorney(s) to follow any oral or written instructions that I may give or prepare before or after the date of execution of this Power of Attorney for Personal Care". 

 

Appointing Attorneys:

You may authorize one or more persons to make personal care decisions on your behalf when you are found/deemed to be incompetent. The person(s) you appoint will make decisions for you when it is determined that you are incapable of making these decisions for yourself. 

Your Attorney must make decisions concerning your personal care that you would have made if you were capable. As a result, it is important that you Attorney for personal care known what your decision(s) would have been. As such, you should relay to your Attorney(s) any instructions and wishes that are particularly important to you. You can also include those instructions in your Power of Attorney, as you specify below. 

It is common to name as Attorney(s) the same person(s) you previously appointed as Estate Trustee(s)/Executor(s). This is because the skills required for both roles as similar, and it is more effecient to have the same people acting both before death (if there is a period of incapacity) and afterwards. 

It is also common to name your spouse or partner as the primary attorney and one or more of your children, if applicable, as alternate attorneys. 

Finally, it is important to first ask the proposed attorney(s) whether he or she would be willing and able to act in this role. A named attorney is not obliged to take on the role and may be less inclined to do so without prior notice.

Attorney Compensation:

Unlike the case with attorneys for property, the Substitute Decisions Act, is silent on the issue of compensation for attorneys for personal care. Instead, Section 61(1) of the Trustee Act provides as follows: "A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice." 

While, it is often appropriate to compensate an attorney for his or her time and effort, there is no statutory right to compensation for attorneys for personal care. 

When there is no specified compensation clause in a grantor's power of attorney for personal care it is therefore left to the courts to decide. 

Compensation may be awarded for hands-on caregiving services or for management of professional caregivers or both. Finally, compensation must be reasonable in view of the need for the services, the nature of the services provided, the qualifications of the person(s) providing the services, the value of the services, the period over which the services were furnished, and the detriment in terms of quality of life incurred by the person providing the services (for example, having to give a job or home). 

*Keep in mind that compensation to an attorney for personal care is subject to income tax in the attorney's hands.*

Appointment of Attorneys for Property:

It is common to name as Attorney(s) the same person(s) you previously appointed as Estate Trustee(s)/Executor(s). This is because the skills required for both roles as similar, and it is more effecient to have the same people acting both before death (if there is a period of incapacity) and afterwards. 

It is also common to name your spouse or partner as the primary attorney and one or more of your children, if applicable, as alternate attorneys. 

Finally, it is important to first ask the proposed attorney(s) whether he or she would be willing and able to act in this role. A named attorney is not obliged to take on the role and may be less inclined to do so without prior notice.

The following factors are also relevant when considering the appropriateness of your Attorney(s) for Property:

• The attorney's lack of time, interest, judgment, financial sophistication, or administrative skills; 
• The attorney's strained relationship with other attorneys or family members; 
• Financial strain in the attorney's own life that might make it tempting to dip into the grantor's assets (especially if the attorney expects to receive a share of the grantor's estate upon death in any event); 
• Attorney's jurisdiction of residence (i.e. an attorney from outside of Canada can have problems trading in securities and an attorney residing far away can have trouble attending your property and your financial institutions); 
• Attorney's interests in grantor's real estate, and
• Attorney's conflict of interest with another role (i.e. shareholder or director in the grantor's business, creditor or person with an option to sell or purchase assets of the grantor). 

Compensation for Attorney(s) for Property:

The rules governing compensation for Attorney for Property vary significantly from those applicable to attorneys for personal care. Of particular importance is the fact that the Standard of Care varies depending on whether or not the attorney is receiving compensation.

If the attorney for property is not receiving compensation, the attorney is required to exercise "the degree of care, dilligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs." If the attorney for property is receiving compensation, on the other hand, the attorney must exercise "the degree of care, dilligence and skill that a person in the business of managing the property of others is required to exercise." See SDA s. 32(7) & (8). 

Additionally, in the absence of any provision dealing with compensation in the Power of Attorney for Property, attorneys for property are entitled to receive compensation for their functions in accordance with the Fee Schedule established under the Regulations to the Substitute Decisions Act. 

Pursuant to O.Reg 26/95, compensation will be payable essentially as a commission on transactions, equal to 3% of receipts, 3% of disbursements, and 0.6% of the average market value of the assets under investment. Fees calculated in this manner may be taken on a monthly, quarterly or annual basis. 

Finally, also note that compensation to an attorney for property is subject to income tax in the attorney's hand. In additional, if the attorney is performing his or her duties in the course of carrying out a commercial activity (i.e. a Trust Company), the compensation will be subject to Harmonized Sales Tax (H.S.T.).

 

Limits on Attorney's Powers:

An Attorney for Property is authorized to do on the grantor's behalf anything in respect of property that the grant could do if capable, except make a Will. The latter is the "Maximum" authority that may be given to an attorney for property pursuant to s. 7(2) of the Substitute Decisions Act. This is often referred to as the "General" Power of Attorney. 

Alternatively, a Power of Attorney may be limited or restricted to certain assets (i.e. dealing with the grantor's accounts at a particular financial institution), certain specific acts or types of decisions (i.e. selling the grantor's house), or a certain time period (i.e. while the grantor is on a long foreign trip), which should be set out in detail. 

The General Rule is that an Attorney for Property has an obligation to make expenditures from the grantor's property reasonably necessary for the support, education and care of the grantor and his or her dependents. In addition, the Attorney for Property has the power to make gifts and loans if the attorney has reason to believe, based on the grantor's intentions expressed before becoming incapable that the grantor would make the gifts and loans if capable. You may express such wishes and intentions in the body of the Power of Attorney for Property.

Note, however, that payments to dependents, friends and relatives of the grantor may be made (regardless of the grantor's wishes) if the grantor's property is and will remain sufficient to provide for the grantor's support, education and care, see section 37(4) 1 Substitute Decisions Act. 

Finally, Charitable Gifts may also be made from the grantor's property if they are specifically authorized in the Power of Attorney or if there is evidence of similar gifts made by the grantor while capable. Charitable Gifts may only be made if the grantor's property is and will remain sufficient to provide for the grantor's support, education and care, unless the court otherwise authorizes.