POWERS OF ATTORNEY
WHAT IS THERE TO KNOW
CARMELINA CIMAGLIA, MSW, RSW
GERIATRIC PSYCHIATRY
SEPTEMBER 2013
The Substitute Decisions Act (SDA)
• Law came into force in April 1995 - amendments
to the law came into power in March 1996
• SDA governs what may happen when someone is
not mentally capable of making certain decisions
about their own property or personal care
• A key feature of the Act – designate someone to
make personal care or financial decisions if unable
to make decisions – using a legal document called
a Power Of Attorney
Types of Power of Attorney in Ontario
• Continuing Power of Attorney for Property: legal
document giving a specific person (s) the legal authority to make decisions
about finances - it is called “continuing” because it can continue to be
used after the person who gave it is no longer mentally capable
• General (non-continuing) Power of Attorney for
Property: given to someone to look after financial transaction while
you are mentally capable, but in need of assistance for a period of time or
for a specified transaction (s) – it cannot be used if you become mentally
incapable
• Power of Attorney for Personal Care: legal document
giving a specific person (s) the authority to make personal care decisions
on your behalf – only comes into effect if the grantor becomes incapable
of making decisions on their own
Power of Attorney forms
• Law does not require to use a lawyer to draw
a POA – may wish to obtain legal advice in
creating these forms
• Forms can be purchased in bookstores
• Forms can be downloaded on the internet
• OPGT provides forms
Continuing Power of Attorney for Property
(CPOAP)
• To be valid, the document must:
– Be called a Continuing Power of Attorney for
Property
– Names one or more persons to act as the
grantor’s attorney for property
– Signed by the grantor and dated
– Signed by two witnesses who saw the grantor sign
the document
When does the CPOAP take effect?
• As soon as it is signed and witnessed, unless
there are conditions specified – immediate
effectiveness
• If there are instructions, it becomes effective
when the conditions are met – postponed
effectiveness
• Conditions - may result in complications and
delays if the need to use the document arises
What powers will the attorney have?
• If no restrictions, the attorney will be able to
do almost anything concerning the grantor’s
finances
• The attorney can sign documents, start or
defend a lawsuit, sell property, make
investments and purchase things for the
grantor
• The attorney cannot make a Will or give a new
CPOAP on the grantor’s behalf
Revocation of the CPOAP
• The grantor must state in writing that he/she
is “revoking it”
• No special form required for a revocation
however it must be signed and witnessed by
two people
• Give the revocation statement to the attorney
and to other parties involved with the
grantor’s income or property
• The original must be destroyed
If no CPOAP exists and the individual
becomes incapable?
• If there are no assets and only pension income
from the government – family/friend may be
able to ask the pension source for permission
to manage this income
• If finances are extensive, family/friend can
apply to be the person’s guardian
• If there is no one else willing, able and
suitable, the OPGT may act as the guardian
Power of Attorney for Personal Care
(POAPC)
• the attorney may be asked to make more
intimate decisions than paying bills
• must be trustworthy, have the integrity to
consider the grantor’s beliefs and values when
making decisions
• Be able to step outside of their own system of
values and make decisions the grantor would
want – whether they agree with them or not
Who cannot be an attorney for
personal care?
• If providing health care to the grantor for
compensation (unless the proposed attorney
is the grantor’s spouse, partner or relative)
• If providing residential, social, training or
support services for compensation (unless the
proposed attorney is the grantor’s spouse,
partner or relative)
What decisions can an attorney for
personal care make?
•
•
•
•
•
•
Health care (includes medical treatments)
Nutrition
Shelter
Clothing
Hygiene
safety
When is a POAPC effective?
• Effective when the grantor becomes incapable
of making their own personal care decisions
• Determination of mental capacity
How to revoke a POAPC…
• If the grantor is capable of giving a POAPC,
they are capable of revoking it
• It must be in writing, signed by the grantor,
and witnessed by two people
• Need for written revocation - assumption that
the document is in the hands of the attorney
• Need to assure the revocation is distributed to
any third parties involved, e.g. physician,
nurse
How to revoke a POAPC…(cont’d)
• If copy is in the grantor’s possession and there
are no other copies - the copy would not be
considered in effect therefore not requiring
revocation
• The document could simply be destroyed and
a new POAPC executed
Reasons for appointing an attorney for
personal care…
• When the grantor wants a decision maker
other than the one designated by law
• When family disagreement is anticipated
• When mental incapacity is anticipated
• When personal assistance services may be
required in a private home setting
Wishes and Instructions
• Do not have to be written in a POAPC
• Some forms contain standard end of life
clauses with specific instructions – caution
• Instructions can be written on extra
pages/separate document – can easily make
changes without revoking POAPC
References
• Best, J. & Oosterhoff, D. Willing and Able – A
Practical Guide to Powers of Attorney in
Ontario. 2nd Ed., 2004
• A Guide to the Substitute Decisions Act.
Queen’s Printer of Ontario, 2000
• Office of the Public Guardian & Trustee –
Powers of Attorney and “Living Will” –
Questions and Answers. Queen’s Printer of
Ontario, 2013