My fellow blogger, Jasmine Sweatman addressed the important question of why people are reluctant to appoint powers of attorney. In her May 29, 2014 blog she wrote:
“Quite often clients believe that if equally ranked substitute decision makers disagree, then either the majority rules or the eldest is given decision-making authority, which is not the case. Equally ranked substitute decision makers must agree and, if not, they must resort to mechanisms in place to resolve disagreements such as mediation, appointment of a Guardian for Personal Care, or application to the Consent and Capacity Board. While a power of attorney may not necessarily avoid the problem of a disagreement if multiple attorneys are appointed, it can avoid agreements by appointing only one person as attorney.
Finally, another common reason for not doing a power of attorney for personal care is that clients believe their living will or advance care directive is sufficient. It is not, as typically a living will does not actually appoint the substitute decision maker. The wishes expressed are a guide and not the legal equivalent of authorizing someone to be able to give consent or not based on those expressed wishes.”
I wholeheartedly agree with these concerns. Powers of Attorney and Advanced Care Directives are different things. The Power of Attorney for Care needs to know what your advanced care directives are, so that your philosophy of how you wish to live and die can be respected and followed.
In a perfect world I have always said that the POA for property should support the decisions made by the attorney for personal care. Without having the POA paperwork in place, your wishes may not be heard or respected. I am currently working with a 90 year old woman who, as she says in her own words, ‘has been able to avoid this headache’ to date. Fortunately or unfortunately she may have waited just long enough as she may no longer be capable and she has no family or friends available to name. While the office of the Ontario Public Guardian and Trustee https://www.attorneygeneral.jus.gov.on.ca/ is available, this may not be the preferred route for everyone.
My work is with the living. POA’s are critical documents that are designed to support your wishes, while you are alive. Wills deal with your wishes, after you are dead.
In April, the Ontario Bar Association (OBA) held a public education initiative called ‘Make a POA’. I can only hope that the campaign was effective in promoting the public to heed the sage advice of lawyers, estate and trust specialists in getting these documents together.