A power of attorney for personal care is a legal document in which a person (the â€œgrantorâ€) authorizes another person (the â€œattorneyâ€) to make decisions on behalf of the grantor for the grantorâ€™s personal care. These personal care decisions may include decisions concerning nutrition, shelter, clothing, hygiene and safety. Under the Ontario Health Care Consent Act, 1996, the power of attorney for personal care ranks only second to the personâ€™s guardian of the person (if any and if the guardian has authority to give or refuse consent) in terms of the hierarchy of decision-makers whom can give or refuse consent to treatment, also as long as the authority confers the authority to give or refuse consent to the treatment.
A person is only capable of giving a power of attorney for personal care if the person understands whether the proposed attorney has a genuine concern for their welfare and appreciates that they may need the proposed attorney to make decisions for them.
In order to be valid, the grantor must, at the time it was executed, have been capable of giving it even if the grantor is incapable of personal care. So a person may be incapable of providing for their own personal care, but may be capable of giving a power of attorney for personal care.
A person may revoke a power of attorney for personal care at any time, so long as he or she is capable of giving one.
The grantor may appoint one or more attorneys and may also appoint one or more alternate attorneys, in the event the attorney is unable or unwilling to act. If more than one attorney is appointed, the power of attorney should clarify how decisions are to be made.
In the absence of a power of attorney for personal care, where a person becomes incapable of personal care, a person, typically a close relative, would need to apply to the court to obtain an order appointing them as the personâ€™s guardian of the person. The benefits of a power of attorney for personal care are:
- The grantor is able to select who will act as their attorney for personal care, as well as substitute attorneys attorney for personal care
- The grantor can impose restrictions on the powers of the attorney for personal care, such as proving directions as to their personal care
- A person close to the grantor will not have to obtain a court order appointing them as guardian of the person
A power of attorney for personal care must be executed in the presence of two witnesses, each of who must sign the document. The witnesses cannot be the attorney or their spouse, the grantor's spouse or child.
An attorney may resign at any time. However, if the attorney has acted under the power of attorney, the resignation is not effective unless a copy is delivered to the grantor, any other attorneys, and their substitute attorney, if any. If there is no substitute or the substitute is unwilling to act, the grantor must also deliver a copy of the resignation to the grantorâ€™s spouse and any relatives known to the attorney who reside in Ontario (unless the power of attorney provides otherwise).
Like a will and power of attorney for property, a power of attorney for personal care is an important estate planning component. It ensures that, in the vent you are incapable of your own personal care, your attorney will be able to make these decisions on your behalf. This limits the burden placed on loved ones during what are often already challenging times.