Life happens. In an instant, you may find yourself as a substitute decision-maker for a person or relative. You may have forgotten you agreed to act as their Attorney for Personal Care. Or in some cases, it comes as a surprise that you have been appointed by a parent or relative.

In the blog post, “Why You Need a POA When You Are Alive”, we explored the importance of appointing Powers of Attorney for Property and for Personal Care. While a Will anchors an estate plan for distributing assets after you have passed, when you are still alive, you may well need a substitute decision-maker if you lose the capacity to act for yourself.

In another related post, “Considerations for Choosing a POA for Personal Care – Choose Wisely”, we explored the essential considerations for choosing a Power of Attorney for Personal Care (POAPC). The guide highlighted the responsibilities involved, the importance of clearly communicating your wishes in advance, and the need for a well-defined lifestyle plan to ensure your preferences are respected.

In summary, those posts have explored why you need to assign a POAPC while you are still living, and how to choose that person wisely. So, let’s look at this from the Attorney’s perspective. How can you be an effective POAPC?

The following sections explain how to be an effective Attorney for Personal Care.

1.     Do you understand the role and your responsibilities?

Some Attorneys express surprise when called and sometimes regret agreeing to act if needed. They may have agreed to the role years before without much thought or because they didn’t want a family member to be upset if they didn’t accept the role. Many people think the role is only about decision-making at the end of life, as one person told me, ‘deciding when to pull the plug.’ The role is much more encompassing and includes decisions regarding the person’s ongoing healthcare, nutrition, shelter, clothing, hygiene, and safety. In other words, the role encompasses everything concerning a person’s well-being and quality of life, other than managing their property.

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 a difficult and confusing time in determining when to act.

The roles and responsibilities of an Attorney for Personal Care are summed up in a very helpful article by PBP Law in Toronto[1].

An attorney for personal care, like an attorney for property, is a fiduciary. He or she must make personal care decisions for the incapable grantor in furtherance of the grantor’s interests, rather than the personal interests of the Attorney.

An attorney for personal care must:

• must perform his or her duties diligently and in good faith
• must explain to the incapable grantor what his or her duties are
• must encourage the incapable person to participate, to the best of his or her abilities, in the Attorney’s decision-making
• must seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person
• as much as possible, the Attorney must seek to foster the incapable person’s independence
• the Attorney must choose the least restrictive and least intrusive court of action that is available and appropriate
• must keep a record of all decisions made on the incapable person’s behalf
• must make decisions on the incapable grantor’s behalf to which the HCCA[2] applies (treatment, admission to long term care, personal assistance services)
• if decisions must be made to which the HCCA does not apply, the Attorney must make decisions in keeping with the following principles:
• prior capable wishes (an attorney must use reasonable diligence in ascertaining whether any prior capable wishes apply to the decision)
• if there are no known prior capable wishes or instructions, decisions must be made in the incapable person’s best interests
• “best interests” require weighing the incapable person’s values and beliefs alongside whether the decision is likely to improve the incapable person’s quality of life or prevent his or her quality of life from deteriorating, or reduce the rate at which his or her quality of life will deteriorate; and whether the benefits of a particular course of action or treatment outweigh the risks

The Attorney cannot use confinement or monitoring devices or restrain the incapable person physically or chemically unless necessary to prevent serious bodily harm to the incapable person or others, or if such a course of action allows the incapable person greater freedom.

2.     Are you in reasonable proximity?

It is easy to underestimate the time you might need to perform the role, especially if the grantor 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.

3.     Are you willing to honour the grantor’s wishes?

It is ideal for a grantor’s wishes to be written down so the Attorney has a guide. For example, advance care directives can be included in the POAPC document. It’s also important to discuss the person’s values and beliefs with them. What does ‘quality of life’ mean to the grantor? What does  ‘end of life’ look like for the person? And are you, as the Attorney, prepared to facilitate options such as Medical Assistance in Death (MAID) if the grantor wishes this? These discussions can be emotional and take time to explore.

In summary, being an effective Attorney for Personal Care requires a thoughtful review of the roles and responsibilities for which you have been appointed. Depending on the circumstances, the role could be short-lived or go on for 20 plus years. The overall goal is to seek the best quality of life as described by your grantor. To be effective, are you prepared to perform the duties diligently, to advocate in good faith, and collaborate with various parties as needed to meet that goal?

[1] Substitute Decisions Act, 1992: What are the Powers and Duties of an Attorney for Personal Care? https://pbplawyers.com/substitute-decisions-act/

[2] The HCCA refers to Ontario’s Health Care Consent Act, 1996.