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