Appointing a Power of Attorney for Property and for Personal Care is an important part of any estate plan. Unlike a will, Power of Attorney documents are for use when the grantor is still alive; an Attorney loses the authority to act upon the death of the grantor. In Ontario, Powers of Attorney are governed by the Substitutes Decision Act, 1992, S.O. 1992.
Power of Attorney for Personal Care
According to the legislation, a grantor of a Power of Attorney for Personal Care must be at least sixteen (16) years old. The Attorney must also be at least sixteen (16) years old. The document must be executed in the presence of two witnesses, who are least eighteen (18) years old and who are not the following:
- The Attorney or the Attorney’s spouse or partner;
- The grantor’s spouse or partner;
- A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child;
- A person whose property is under guardianship or who has a guardian of the person.
When a person grants a Power of Attorney for Personal Care, they allow the Attorney to make decisions regarding the grantor’s personal care, which, unless there are restrictions, includes decisions regarding health care, nutrition, shelter, clothing, hygiene, and safety.
Unlike a Power of Attorney for Property, a Power of Attorney for Personal Care is only effective when the grantor is incapable of making decisions.
A Power of Attorney for Personal Care can be revoked by the grantor, provided that the grantor has the capacity to do so.
The Attorney for Personal Care has a duty when making decisions on behalf of the grantor to act consistent with the grantor’s best interests and to consider any express wishes made by the grantor prior to incapacity. The Attorney shall also, among other duties set out in the legislation, encourage the incapable person to participate, to the best of his or her abilities, seek to foster regular personal contact between the incapable person and supportive family members and friends, and consult, from time to time, with supportive family members and friends as well as the individuals from whom the incapable person receives personal care.