Health Care Decision Making: Powers of Attorney for Personal Care

 In Wills and Estates Law

It has been 20 odd years since the Supreme Court of Canada upheld the ban against assisted suicide in the Sue Rodriguez case.  In October the issue was before the Supreme Court again and on February 6 of this year, they unanimously decided to lift the ban against competent adults with irreversible medical conditions having a physician assist with terminating their lives when they are too physically disabled to do so themselves.

In Canada, Quebec was the only province to have passed legislation permitting medically assisted suicide in certain cases. Switzerland, Belgium and Luxemburg also have legislation which permits assisted suicide. We are often asked about the types of decisions a Power of Attorney for Personal Care may make. This area of law is very complicated and will continue to undergoing a great deal of change with this recent decision.

Under the Substitute Decisions Act a person (referred to as the Grantor) may give someone else the ability to make decisions for them relating to their health and well being (referred to as the Attorney). This is known as a power of attorney for personal care.

Unless restricted, the Attorney for personal care may make decisions of a personal nature about the Grantor’s health care, nutrition, shelter, clothing, hygiene, or safety.

Health care professionals will only look to the Attorney for decisions about medical treatment, or placement in a long term care facility if the Grantor lacks the capacity, in the medical professional’s opinion, to make such decisions. If the Grantor is incapable of understanding information relevant to his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or a lack thereof, he or she is considered to be incapable of making personal care decisions.

A Grantor may also leave a written expression of his/her wishes with respect to treatment decisions.  This document is sometimes referred to as a living will or an advanced medical directive. The Power of Attorney for Personal Care gives the Attorney authority to make these decisions on behalf of the Grantor, but written expressions will assist the Attorney when making such decisions on the Grantor’s behalf.

Anyone who is at least 16 years of age and capable may make a Power of Attorney for Personal Care. To be considered capable of granting a Power of Attorney for Personal Care, the Grantor must understand whether the person he/she has appointed has a genuine concern for his/her well being and that the person he/she is appointing may be required to make decisions on the Grantor’s behalf.

If one does not have a Power of Attorney for Personal Care in place and no Court Order appointing a person as the Guardian of the Person has been obtained, then the following persons, in priority, are entitled to make decisions on behalf of the Grantor.

  • Spouse or common law partner;
  • A child or parent;
  • A brother or sister;
  • Any other relative of the incapable person;

If no person is available or willing to make decisions for an incapable person, the Public Guardian and Trustee will make the health care decisions for an incapable person.

A Grantor may revoke a Power of Attorney for Personal Care provided that he/she has the same level of capacity as required for making one. The revocation must be in writing with the same formalities as granting one. A copy of the revocation of the Power of Attorney for Personal Care must be sent to the Attorney named in the document being revoked and to any health care provider to whom a copy of the Power of Attorney was delivered.

An Attorney for Personal Care has a duty when giving or refusing consent on behalf of the Grantor to act consistent with the Grantor’s best interest and to take into consideration the values and expressed wishes made by the Grantor prior to incapacity.

One should give careful consideration before granting a Power of Attorney for Personal Care and have thoughtful conversations with the Attorney about what the Grantor considers quality of life.

This blog post was written by Heather Austin-Skaret, a Partner in the Wills and Estates and Real Estate teams.  She can be reached at 613-369-0356 or at Heather.Austin-Skaret@mannlawyers.com.

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