Powers of Attorney for Personal Care (POAPC) are a common part of estate planning for Canadian lawyers. But when these documents are actually used, they can quickly become the centre of emotionally charged disputes.
As my colleague, Ian Hull, shared on our recent webinar, conflicts over personal care decisions can become “the fight over the body before it’s dead.”
This article summarizes key insights from a two-part webinar on Powers of Attorney for Personal Care, hosted by Jordan Atin and Ian Hull, and available on our webinar library.
What is a Power of Attorney for Personal Care in Ontario?
In Ontario, a Power of Attorney for Personal Care is a legal document created under Ontario’s Substitute Decisions Act (SDA) that allows a person (the grantor) to appoint someone else to make personal care decisions if they become incapable of making those decisions themselves.
During the webinar, we noted that many clients think of POAPCs primarily as healthcare documents, focused on hospital or end-of-life decisions. In practice, however, the definition of personal care is broader.
Personal care decisions can include matters related to medical treatment, nutrition, living arrangements, hygiene, or even safety.
“Living arrangements” decisions, where someone will live, often become one of the most significant issues in practice, particularly when families disagree about whether a person should remain at home or move into a care facility.
Why POAs for personal care often receive less attention during estate planning
One observation from our webinar was that POAPCs are sometimes treated as an afterthought during estate planning meetings.
In fact, Ian Hull described them as the “rushed cousin” of the will. Lawyers may spend significant time discussing the will and then move more quickly through the POA documents once clients become fatigued near the end of the meeting.
In practice, however, the choice of who will act as attorney for personal care can become one of the most consequential decisions in the estate plan. When these documents are used, they often arise during medical emergencies or moments of family stress, when decisions must be made quickly.
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How the Substitute Decisions Act and Health Care Consent Act interact
A recurring theme in the webinar discussion was the relationship between two key Ontario statutes:
- the Substitute Decisions Act (SDA)
- the Health Care Consent Act (HCCA)
Jordan Atin explained that the two statutes play different but complementary roles.
The Health Care Consent Act governs consent to treatment in medical settings. When a health practitioner determines that a person is incapable of making a treatment decision, the Act requires consent from a substitute decision-maker.
The Substitute Decisions Act determines who may act as that decision-maker, including an attorney appointed under a POA for Personal Care.In practice, this means that an attorney for personal care often becomes the person responsible for giving or refusing consent to medical treatment when the patient is incapable.
Note that the SDA does not regulate compensation for an attorney for personal care. However, courts can award such compensation when requested, as shown in case law. To learn more about when attorneys can claim compensation for personal care services, read this article from WEL Partners.
Advising clients on how to select the right attorney for personal care
Ontario law places certain restrictions on who can be appointed as an attorney for personal care.
During the webinar, we highlighted an important statutory rule: a person who provides health care or support services for compensation to the grantor generally cannot be appointed as attorney for personal care unless they are the grantor’s spouse, partner, or family member.
Ian Hull also noted that lawyers occasionally encounter situations where a caregiver has developed a close relationship with the client and the client wishes to appoint them. In his experience, situations like this often raise concerns and can lead to complications later if the appointment is challenged.
So, how to choose the right attorney for personal care? Selecting an attorney for personal care is oftenone of the most sensitive decisions faced by clients. In fact, these choices can have significant emotional implications withing families. Parents may struggle with questions such as:
- whether to appoint one child or multiple children
- whether attorneys should act jointly or jointly and severally
- whether excluding one child from the role could lead to resentment
Jordan observed that being excluded from decisions about a parent’s care can sometimes become a source of conflict, particularly when the decisions involve issues such as life-sustaining treatment.
Pro Tip
Lawyers should consider personality dynamics when clients propose multiple decision-makers. Appointing individuals who have historically struggled to work together can create tension at precisely the moment when cooperation is most important.
Conflicts between decision-makers
Disagreements among substitute decision-makers can create serious challenges in practice.
When multiple decision-makers cannot agree, institutions sometimes respond by effectively freezing decision-making until the dispute is resolved. In other situations, institutions may follow the direction of one individual, which can escalate conflict within the family.
It's also worth noting that disputes involving substitute decision-making appear to be increasing in volume, with more elder-law related matters entering legal practice.
When conflicts escalate, the dispute may ultimately involve bodies such as the Consent and Capacity Board or the Public Guardian and Trustee.
Another issue raised during the webinar is the potential for conflict between the attorney for personal care and the attorney for property, as personal care decisions often carry financial implications.
For example, a personal care attorney may believe that a person should receive extensive care services, while the attorney for property may question whether those costs are financially sustainable.
These competing perspectives can create tension if the individuals involved do not communicate effectively.
Questions estate lawyers should discuss with clients to mitigate future conflicts
During the webinar discussion, several common questions arose that lawyers frquently ecplore with clients POAPCs:
- who is the best prositioned to make personal care decisions if incapacity occurs?
- should more than one person share decision-making authority?
- how might the appointment affect family dynamics?
- are the proposed attorneys able to communicate effectively with one another?
Discussing these issues during the estate planning process can help clients make more informed decisions and may reduce the likelihood of conflict later.
Frequently asked questions about POAs for Personal Care
At what age can someone grant a POA for Personal Care in Ontario?
Under Ontario’s Substitute Decisions Act, a person can grant a POA for Personal Care if they are 16 years of age or older.
Does a POA for Personal Care only apply to medical decisions?
No. While medical decisions are often the most visible use of a POAPC, the document may also apply to decisions relating to nutrition, shelter, safety, hygiene, and clothing.
Who determines whether someone is incapable of making a treatment decision?
Under the Health Care Consent Act, the health practitioner proposing the treatment determines whether the patient is capable of making that specific treatment decision.
Can more than one person act as attorney for personal care?
Yes. A grantor may appoint multiple attorneys. The document can specify whether they must act jointly or jointly and severally, depending on how the grantor wishes decisions to be made.
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