The blog post, Why You Need a POA When You Are Alive, explored the importance of appointing Powers of Attorney for Property and for Personal Care. While a Will may anchor an estate plan for distributing assets after you have passed, you will need a substitute decision-maker in place if you lose the capacity to act for yourself. Your Attorney may need to make personal and sensitive decisions on your behalf, so how does one choose wisely?

Acting as an Attorney for Personal Care can be a demanding, time-consuming, and emotionally charged role. In our experience, there are some common situations in which Attorneys find it difficult to act. For example, multiple Attorneys may have been appointed, such as several siblings or a group of friends, but they do not agree on the grantor’s wishes. When their decision-making is most needed, they are unable to decide. Another example is where the grantors’ wishes are vague or not documented at all, and they have said in the past, “I hope my kids will figure it out.” Unfortunately, hope is not a plan.

From a smart ageing perspective, the best practice is to create a post-retirement lifestyle plan that takes an integrated approach to your life, health, and well-being. Ideally, this is a written plan based on your values, beliefs, and wishes shared with your POAs and trusted support network well in advance. Using scenario planning is an effective way to identify a person’s lifestyle wishes and to cost out future scenarios to determine how their financial resources would support and implement their wishes. For example, if you experience an increasing disability or diminished capacity, the plan would be specific about your lifestyle wishes. Do you wish to stay at home for as long as possible with in-home care providers in place? Or, if you have diminished capacity and are unable to cook and care for yourself, do you wish to relocate to a retirement home with a dementia program? A well-thought-out lifestyle plan provides a written roadmap of personal wishes.

Choosing an Attorney for Personal Care is an ongoing topic of discussion with many clients and colleagues. Their suggestions inform the following priority considerations:

1. Understand the Role and Responsibilities

Some Attorneys express surprise and sometimes regret for taking on the role. Many people think the role is only about decision-making at the end of life, whether to treat a person medically or not. The role is much more encompassing and includes decisions regarding the person’s ongoing health care, nutrition, shelter, clothing, hygiene, or safety. In other words, the role encompasses everything concerning a person’s well-being and quality of life.

Attorneys can only act when the person is found incapable of making personal care decisions. However, determining whether a person has lost the capacity to make some or all personal care decisions is a far more complicated issue than we can cover here. Attorneys often find this is a difficult and confusing time to determine when they should act.

People often misunderstand the role of POAPC and assume it is to provide hands-on care. In fact, the role of the Attorney is to substitute in as the decision-maker for addressing care issues according to the grantor’s express wishes, beliefs, and values. For example, the Attorney could be responsible for recruiting, hiring, paying, and managing a home care company to provide personal support workers in the home. The Attorney is also obligated to involve the person as much as possible in the decision-making.

The Attorney has numerous other responsibilities, including acting in good faith, keeping explicit records about various decisions, and encouraging contact with the person’s family and/or friends and relatives. Clients may find this reference from the Office of the Public Guardian and Trustee helpful in reviewing POAPC responsibilities.

2. Reasonable Proximity

It is easy to underestimate the time the Attorney might require if the person requires increasing interactions with doctors and health care providers. If a person cannot make care decisions, they will always need the Attorney or a reliable party at each appointment to take notes, ask questions, and advocate for them. This can be time-consuming if a person has four or five specialists and weekly clinic appointments.

There are numerous other circumstances where an Attorney for Personal Care may be required in person for decision-making, whether an individual is at home, in a medical department, in a retirement home or in a long-term care home. An alternative is for Attorneys to hire experts such as an elder management company to assist them with planning, identifying care needs, determining options and costs, and making recommendations to the Attorney. The Attorney can then make an informed decision.

3. Life Stage

If there are choices available for Attorneys, it is wise to consider the life stage a person is in and whether they have the time and ability to act on your behalf. For example, a son or daughter living in another province, juggling a career and a young family, may simply not have the time to act as an Attorney. Alternatively, a person may wish to appoint a close friend who lives in the same town, but this person is ten years older and in poor health, so this may not be the best choice.

4. Able and Willing to be Guided by the Person’s Wishes

Before choosing an Attorney, it’s helpful to review your lifestyle plan with them. As previously mentioned, the best practice from a smart ageing perspective, is to have a written lifestyle plan that takes an integrated approach to your life, health, and well-being. Discuss the possible scenarios where they might be your substitute decision-maker. Once they have reviewed and discussed your plan, are they willing and able to act on your behalf? Are they confident in their ability to advocate for your wishes?

Ultimately, choosing your Power of Attorney for Personal Care is about making a thoughtful decision on who you believe will be an effective substitute decision-maker if you cannot act for yourself. It’s not a popularity contest or a way to recognize someone—it’s about ensuring you have selected someone who will advocate for you in good faith, collaborate when needed, and stay true to your wishes. With the right person in this role, you can have peace of mind knowing your lifestyle plan will be carried out as you intended. Choose wisely; your future quality of life may depend on it.