In Ontario, subsection 46(1) of the Substitute Decision Act allows a person to: “give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.” The power of attorney (POA) for personal care allows the appointed attorney to act as the substitute decision maker (SDM) for an incapable person.
The attorney(s) for personal care are authorized under the SDA to make decisions about any category of personal care for which the grantor is determined to be mentally incapable. Categories of personal care includes heath care, housing, safety, hygiene, clothing, and nutrition. Furthermore, the Health Care Consent Act (HCCA) authorizes the POA for personal care to make decisions concerning the grantor’s personal care (if the grantor is found incapable), including consent for treatment, admission to care facilities, and/or personal assistance services.
A POA for personal care can only be used when the grantor is declared incapable of making decisions relating to a proposed healthcare intervention under the HCCA or when the grantor is declared incapable of a category of personal care under the SDA. Capacity is task, time, and situation specific, such that capacity can be intact for some decisions and not others, or vary over time.
Pursuant to the SDA and the HCCA, duties of an SDM include acting diligently and in good faith in the incapable person’s best interests. I have written previously in this blog regarding the factors the SDM must take into consideration when deciding the incapable person’s best interests. However, from my experience, I feel that attorneys for personal care should equally be advised as to what are the limitations of their authority.
A POA for personal care does not authorize attorneys for personal care to be the patient’s health care manager, which differs substantially from the role of attorneys for property. This misconception often arises in the context of caring for an elderly patient in healthcare settings. For example, the attorney for personal care has no authority to determine who can visit the patient, what a visitor can say to the patient, and what a visitor may do with the patient. In order to have this type of authority, the patient would have to have been declared incapable making decisions regarding personal care for safety, or the patient would need to be under the authority of a court appointed guardian.
A POA for personal care does not necessarily authorize the attorney for personal care to determine where the patient will live. In order for an attorney for personal care to consent to admission to a retirement home, the patient would have to have been declared incapable by a qualified assessor from the Ministry of the Attorney General of choosing shelter. The patient has the right to appeal that finding.
Often, an attorney for personal care will consent to admission to a retirement home for an incapable person. However, since a retirement home is not a health care facility, an attorney for personal care cannot consent to the incapable person’s admission to a non-health care facility without the incapable person’s agreement. Involuntary admission to a retirement home is not permissible.
If the incapable person does not consent to move into a retirement home, admission into to Long-Term Care (LTC) can be considered. In Ontario, in order for a SDM to consent to LTC admission, a declaration of the patient’s incapacity to apply for LTC is required first by a Home & Community Care Evaluator under the HCCA. The patient has the right to appeal that finding. If, for whatever reason, the option of LTC is not available, then the patient, regardless of capacity, cannot be forcibly moved.
Knowing the limitations of a POA for personal care’s authority will help attorneys for personal care better meet their mandated responsibilities.