POWER OF ATTORNEY
A power of attorney is a legal document that gives someone else the power to act on your behalf.
In Ontario, the Substitute Decisions Act sets out the law about the two types of power of attorney that can be used if you become mentally incapable: a power of attorney for personal care and a continuing power of attorney for property.
Power of Attorney for Personal Care
A power of attorney for personal care is a document where you name someone to become your attorney to make personal care decisions on your behalf IF you become incapable of making those decisions yourself. An attorney is not a lawyer but a person that you trust to make decisions for you when you are not able to do so yourself. Personal care decisions refer to decisions about your health care and medical treatment, diet, housing, clothing, hygiene and safety. A power of attorney for personal care lets you state what you want and what you do not want with respect to your personal care decisions (these are called wishes). For example, if there are certain medical procedures you would not wish to receive, such as blood transfusions, you would specifically state that in your power of attorney for personal care. No decision can be made by an attorney for personal care unless you have been found to be mentally incapable of making that decision.
Continuing Power of Attorney for Property
A continuing power of attorney for property is a legal document that lets you appoint an attorney to make financial and other property decisions for you. An attorney is not a lawyer but a person that you trust to make decisions and manage your property on your behalf. Depending on how the power of attorney is written, your attorney may have authority to: (1) act for you both when you are capable and when you are mentally incapable; or (2) act only when you have been found mentally incapable of managing your property/finances in accordance with the law. In order to ensure the validity of this power of attorney, it must either be called a "continuing power of attorney for property" or it must specifically state that your attorney has been given the right to continue acting for you if you become mentally incapable.
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How is a power of attorney for personal care or property properly executed?
A valid power of attorney must name the person you have chosen to act on your behalf, must be signed and dated by yourself, and must be signed and dated by two witnesses who saw you signing the document. The two witnesses cannot include:
- Your spouse, partner, child, or some one you treat as your child;
- The person you are naming as your attorney or their spouse or partner;
- Anyone under 18 years of age; or
- Anyone who is incapable of making their own property or personal care decisions.
Power of Attorney - Personal Care
Who can I name as my attorney?
For a power of attorney for personal care, you can name almost anyone as your attorney, including a family member or a personal friend. However, it is extremely important that you choose someone you trust.
Who cannot be my attorney for personal care?
You cannot name someone as your attorney if they are paid to give you health care or residential, social, training or support services, unless the person is also your spouse, partner or relative. As well, those under the age of 16 and those who are mentally incapable themselves cannot be named as your attorney.
When does a power of attorney for personal care take effect?
A power of attorney for personal care only takes effect if you become mentally incapable of making your own personal care decisions. In other words, the attorney cannot make personal care decisions for you until you have been found to be mentally incapable.
For treatment decisions, the health practitioner proposing the treatment must decide if you are capable of making the required decision.
For decisions about admission to a long-term care home or personal assistance services in a long-term care home, an "evaluator" must determine whether you are capable of making the required decision.. Evaluators are nurses, doctors, occupational therapists, physiotherapists, psychologists, some social workers, speech language therapists, audiologists or anyone else prescribed by regulation.
If the decision is about shelter, clothing, hygiene or safety, it will be up to your attorney to decide whether you are mentally incapable of making the required decision unless you say otherwise in your power of attorney for personal care. Therefore, if you want a different person to make this decision, you can name someone else in your power of attorney to confirm that you are mentally incapable. The person does not have to be a health professional or anyone with any specific training. It could be a specific person (your Aunt Martha) or a class of persons (your family physician).
If you state in your power of attorney for personal care that you want your mental incapacity confirmed but do not specify by who, it will be confirmed by a "capacity assessor". A capacity assessor is someone who is specially trained and approved to determine mental capacity.
Can I dispute a finding of incapacity?
If you are found to be incapable of making a decision about your capacity respecting health treatment admission to a long-term care home or personal assistance services in a long-term care home, but you disagree with that finding, you can apply to the Consent and Capacity Board to review the finding of incapacity.
If the finding of incapacity is not in one of these three areas, there is no review process set out in the law.
When does my power of attorney for personal care end?
Your power of attorney for personal care ends when:
- You die;
- Your attorney dies, becomes incapable, or resigns (however, this can be prevented if you name more than one attorney or if you name a substitute attorney);
- A court appoints a guardian of the person for you;
- You sign a new power of attorney for personal care while you are still mentally capable; or
- You revoke the power of attorney while you are still mentally capable.
Power of Attorney - Property
Who can I name as my attorney?
The only legal requirement when choosing an attorney for property is that he or she is 18 years of age or older. However, when choosing your attorney, you should pay careful consideration to many factors, including whether the person you choose is trustworthy and whether they are good at handling money.
When does a continuing power of attorney for property take effect?
A continuing power of attorney for property takes effect immediately upon being signed and witnessed, unless otherwise stated in the document. However, if you want it to take effect only after you have become mentally incapable of managing your finances, you must make this clear in the document. It is up to the individual making the power of attorney whether they want their attorney to be able to help them now or only after becoming mentally incapable.
In order give a valid continuing power of attorney for property, you must be at least 18 years old and mentally capable. Mental capacity for the purpose of giving a continuing power of attorney for property means you must:
- Know what you are giving your attorney the authority to do;
- Know what property you have and its approximate value;
- Know that your attorney is required to account for the decisions they make about your property;
- Understand that if your attorney does not manage your property well, its value may decrease;
- Understand that there is always a chance that your attorney could misuse their authority; and
- Know that as long as you are mentally capable, you can revoke the power of attorney.
When does my continuing power of attorney for property end?
Your continuing power of attorney ends when:
- Your attorney dies, becomes mentally incapable, or resigns (however, this can be prevented if you name more than one attorney or if you name a substitute attorney);
- A court appoints a guardian of the property for you;
- You sign a new continuing power of attorney for property while you are still mentally capable;
- You revoke the power of attorney while you are still mentally capable; or
- You die.
What is a general power of attorney for property?
The Power of Attorney Act states that a general power of attorney for property is a legal document that lets your attorney manage your finances and property only while you are mentally capable. For example, your attorney can act for you in financial and bank-related dealings, by signing cheques, and buying or selling real estate and consumer goods.
This type of power of attorney is usually used in business or for short-term temporary reasons (e.g., if you are going on an extended vacation). If you become mentally incapable of managing your property or finances, the general power of attorney for property ends, and your attorney can no longer act on your behalf.
Is It Time to Consider Assisted Living?
Sometimes, it is not easy to see the signs. Maybe there has been an increase in falls, or maybe the physician has recommended looking into assisted living – but most often the signs are tougher to see.
It can sometimes be difficult to identify when a seniors ability to care for themselves has declined, or when a physical or cognitive impairment has interrupted their daily activities. So, what are the signs to look for that give you a clue that a loved one may need assisted living?
Some common signs that may suggest a parent or loved one could benefit from assisted living include:
- Needing reminders to take medication
- Noticeable weight loss or gain
- Loss of mobility or increase in falls
- Inefficient Grooming and hygiene
- Increased isolation
- Loss of interest in hobbies
Some more obvious signs that assisted living is required are:
- Exhibiting aggressive behaviours
- Becoming disoriented or getting lost
- Repeating stories or questions
- Problems speaking or struggling to find the right words
- Difficulty planning, concentrating or organizing
- An Alzheimers / Dementia diagnosis that requires 24-hour supervision
Retirement Communities, Enhanced Care Communities and Long-Term Care Homes
A Retirement Community is generally made up of Residents that require basic levels of care. Quite often the Residents in these homes are still capable of caring for themselves, however, they may require supervision with medication, limited assistance with housekeeping and laundry and making their meals. Most Retirement Communities offer rooms that are very much like small apartments – with kitchenettes and private living spaces. Sometimes pets are permitted and staffing is limited, but available to assist via intercom or phone system. Recreational and social activities are scheduled and Residents are able to participate in the activities at their leisure. Most often Residents and their families are responsible for taking residents to doctor appointments, purchasing and providing supplies and continuing to assist their loved one. Admission into a Retirement Home is as simple as contacting the Home of your choice and discussing options and availability. Often, once a Resident of a Retirement Home has an increase in care needs, the Home may not be able to assist with the increase in care and alternate arrangements will have to be made for the Resident.
A Long-Term Care Home is a government subsidized facility that provides 24-hour nursing care and services. Residents in Long Term Care require increased care, increased supervision, mechanical lifts, feeding assistance, and usually full assistance with activities of daily living – including morning care, shower/bath assistance, wound care, toileting assistance, catheter care, evening care, medication administration, as well as housekeeping, laundry and meal preparation. Getting into a Long-Term Care Home requires the Resident to be assessed by a LHINS case worker, touring of multiple Long-Term Care Homes and placement on a list for the next available opening. The waiting list can be quite long, depending which home or location you desire and until placement in Long-Term Care is established, the Resident must have a safe place to stay.
Enhanced Care Communities, such as Barrie Manor, provide the transitional care required until placement into Long-Term Care is available, or a Resident may choose to remain in the Enhanced Care Community for the remainder of their life. The choice is theirs. Enhanced Care Communities are an option for all levels of care, from independent to end-of-life.
Residents in Enhanced Care Communities often have access to an in-house pharmacy, in-house physician, in-house hair salon, in-house tuck shop, in-house dental services, in-house optician services, in-house wound care services and in-house foot care services – thus making it easier for loved ones to access these services and taking the burden off caregivers and families to schedule transport and companions to accompany their loved ones to appointments.
When faced with the decision to place a loved one into an assisted living home, it is important to know exactly what your loved one needs and to investigate every home thoroughly to ensure that they offer the level of care currently needed and that they can accommodate the changing needs of a resident if they begin to decline.
