The ABCs of POAS and Wills

This webinar is brought to you by
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CLEONet is a web site of legal information
for community workers and advocates who
work with low-income and disadvantaged
communities in Ontario.
2010, Community Law School
(Sarnia-Lambton) Inc.
About our presenter…
Judith Wahl has been the Executive Director and Senior Lawyer at the
Advocacy Centre for the Elderly (ACE) since 1984. ACE is a community
legal service for low income seniors that focuses on legal issues that have
a greater impact on the older population.
Judith has organized and taught numerous public legal education
programmes on legal issues that arise in day to day work with seniors,
including Advance Care Planning - Physicians’ Training Ontario College of
Family Physicians and Alzheimer Society of Ontario; Gerontology
Programme at McMaster University, Faculty of Social Sciences; the
Diversity Training Course at C.O. Bick Police College; as well as
Continuing Legal Education Programmes for the Law Society of Upper
Canada, Ontario Bar Association, the former Canadian Bar Association –
Ontario, and the Canadian Bar Association National.
Powers of Attorney and
other Substitute Decision
Making Authorities
Judith Wahl
Advocacy Centre for the Elderly
w[email protected]
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Advocacy Centre for the Elderly
Advocacy Centre for The
Elderly
2 Carlton Street, Suite 701
Toronto, Ontario
M5B 1J3
 Tel - 416-598-2656
 Fax - 416-598-7924
 Email
[email protected]
 Website www.acelaw.ca

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Advocacy Centre for the Elderly
Two Webinars
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Part 1 - Mental Capacity and Decision
Making - The ABCs of Substitute
Decision Making
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Part 2 - Powers of Attorney and other
Substitute Decision Making
Authorities
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Advocacy Centre for the Elderly
Part I of 2
Mental Capacity and Substitute
Decision Making
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Decision-making
When someone else gets authority to make
decisions for you
How mental capacity is defined in law
How mental capacity for decision making is
assessed
Who assesses mental capacity for different
purposes
Who are your substitute decision makers for
different purposes
Advocacy Centre for the Elderly
Today’s Webinar - Part 2 of 2
Powers of Attorney and other Substitute
Decision Making Authorities
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What is a Power of attorney
Different types of POAs
Why you may want to prepare a POA
How you can prepare a POA
When a POA comes into effect and why
What happens if you haven’t prepared a POA
The authority of the attorney named in a POA.
Other substitute decision making authorities
 Statutory guardianships
 Court ordered guardianships
 Substitute decision maker for health care when you
have not prepared a POA for Personal care
Advocacy Centre for the Elderly
Questions during Webinar
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Please write your questions in the chat box
during the presentation
We will also have a SHORT break for
questions twice during the presentation
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after the explanation of the POA Property
and Substitute Decision Makers for Property
AND
after the explanation the Substitute
Decisions Makers for Personal Care
We will also take questions at the end
Advocacy Centre for the Elderly
Legislation
 Substitute
Decisions Act (SDA)
 Health Care Consent Act
(HCCA)
 Mental Health Act (MHA)
See “Laws” on the Ontario Government
website at www.gov.on.ca
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Advocacy Centre for the Elderly
What Decisions do you make in
your Life?
Decisions about Property – money,
real estate, personal goods, furniture,
things of value to the person, bank
accounts
 Decisions about Personal Care –
Shelter, nutrition, hygiene, safety,
clothing and health care
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Advocacy Centre for the Elderly
Who Decides?
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You decide for yourself if
MENTALLY CAPABLE
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Your Substitute Decision Maker
(SDM) if you are NOT mentally
capable
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Advocacy Centre for the Elderly
What does it mean to be
Mentally Capable?
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To be Mentally Capable means that
you have the ability to understand
information relevant to making the
decision and the ability to appreciate
the consequences of making a
decision or not making a decision
Advocacy Centre for the Elderly
Who is your SDM for Property if you are
not mentally capable for property
decisions?
Summary****
Someone you, when you are still
mentally capable, choose as an
“attorney” in a POA Property
 When you become incapable
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A Statutory Guardian for Property
 A Court Ordered Guardian of Property
 A Trustee appointed under the OAS or
CPP legislation
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Advocacy Centre for the Elderly
Powers of Attorney for
Property
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Your attorney named in a POA Property
if you made a POA Property
You can choose the person you want to act
for you by signing a POA Property
You must be mentally Capable
POA Property is a DOCUMENT, in Writing,
in which you name an SDM (called an
“attorney”), you sign, and two witnesses
sign all in the presence of each other
Advocacy Centre for the Elderly
Powers of Attorney for
Property
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For a POA Property to be valid
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You must be mentally capable when you
sign it
You must be signing it voluntarily
POA Property is a DOCUMENT, in Writing,
in which you name an SDM (called an
“attorney”), you sign, and two witnesses
sign all in the presence of each other
Advocacy Centre for the Elderly
How do you get a POA
Property done?
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How do you get a POA Property
done?
- use Ontario Public Guardian and
Trustee Kit
- go to a free legal clinic (some do
these documents)
- go to a lawyer
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Advocacy Centre for the Elderly
IMPORTANT things to
remember before signing a
POA for Property
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Think about whether you need one or not –
POAs for property are NOT the best things for
everyone
You should ONLY name someone as attorney if
you have someone that you TRUST and think
that you will be able to trust in the future
If you don’t have someone you can trust –
DON’T SIGN A POA PROPERTY
Advocacy Centre for the Elderly
IMPORTANT things to
remember before signing a
POA for Property
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●
o
The person who you name as attorney in a POA will
have the ability to “sign your name” – so think about
what that means.
You can sell your house by signing your name.. You can
enter into contracts by signing your name.. You can have
a mortgage put on your house by signing your name…
you can access your bank accounts by signing your
name..
Should you name more than one person as your
attorney? Should they act together (jointly) or jointly and
severally (separately) ?
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Advocacy Centre for the Elderly
When POA Property in Effect
Comes into effect ON SIGNATURE
when you are still mentally capable
 If you write into the POA Property that
you only want it to be in effect AFTER
you become incapable, then your
attorney (SDM) can use POA Property
ONLY after you become incapable
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Advocacy Centre for the Elderly
Who is your SDM for Property if
you are not mentally capable for
property and don’t have a POA
Property – Statutory Guardianship
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If you don’t have a POA property and you
are likely mentally incapable to manage
property, someone can arrange for you to
be assessed by a “Capacity Assessor” and
if found incapable for property , the OPGT
will take over your money management for
you and act as your SDM for property. This
is called a Statutory Guardianship
Advocacy Centre for the Elderly
Application to replace the
OPGT as your Statutory
Guardian
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Your spouse or partner, your relatives,
or a trust company (with consent of
your spouse or partner) may apply to
replace the OPGT as your statutory
guardian and take over management
of your property
Advocacy Centre for the Elderly
Capacity Assessors
Capacity assessors are fee for
service- whoever asks for the
assessment, pays for the assessment
 You can get information about who
are capacity assessors and how to
find them by contacting the Capacity
Assessment Office located in the
same Office of the Public Guardian
and Trustee
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Advocacy Centre for the Elderly
Definition of Capacity
Assessor
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SDA s. 1(1)
“assessor” means a member of a
class of persons who are designated
by the regulations as being qualified
to do assessments of capacity.
Advocacy Centre for the Elderly
Capacity Assessors
O.Reg.460/05
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S.2 (1) A person is qualified to do
assessments if he or she,
a) satisfies one of the conditions set out in
ss.(2)
(Member of particular College) ;
b) has successfully completed the
Qualifying course described in s.4
c) complies with s.5 (continuing education)
d) complies with s.6 (minimum annual
number of assessments)
e) is covered by professional liability
insurance of not less than $1,000,000...
Advocacy Centre for the Elderly
Capacity Assessors
O.Reg.460/05
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S.2 (2)
is a member of one of the following Colleges.
a) College of Physicians & Surgeons of
Ontario.
b) College of Psychologists of Ontario.
c) Ontario College of Social Workers & Social
Service Workers and holds a certificate of
registration for social work.
d) College of Occupational Therapists of
Ontario.
e) College of Nurses of Ontario.
Advocacy Centre for the Elderly
Who is your SDM for Property if you
are not mentally capable and don’t
have a POA Property and are an
inpatient in a psychiatric facility?
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If you are admitted as an inpatient to a
hospital for psychiatric treatment, a
physician must assess you as to whether
you are mentally capable to manage
property
If you are found incapable, the OPGT
will step in as your SDM for property
(called a Statutory Guardianship)
Advocacy Centre for the Elderly
Statutory Guardianship
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This statutory guardianship may continue after
you are discharged from a psychiatric facility
and move back home or move into another
accommodation like a hospital or long term care
home
Before you are discharged from the psychiatric
facility, a physician must either find you
mentally capable to manage your own property
or sign a notice of continuance to permit the
statutory guardianship to continue to be in
effect
Advocacy Centre for the Elderly
Who is your SDM for Property if you
are not mentally capable and don’t
have a POA Property – Court Ordered
Guardian
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Someone, usually a close relative,
can apply to court to be named your
Guardian of Property– but other
people also could apply to become
your court ordered Guardian
Advocacy Centre for the Elderly
Who is your SDM for Property if you
are not mentally capable and don’t
have a POA Property - Trusteeship
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If you have income only from Canada Pension and
Old Age Security, and you become incapable for
property and have no POA property, someone can
apply to become your TRUSTEE to manage your
money for you
Application forms for this are available from Service
Canada (Income Security Branch) – These are a
certificate of Incapability and an Undertaking
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Advocacy Centre for the Elderly
Questions?
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Any questions about Powers of
Attorney for Property or other
Substitute Decision Makers for
Property?
Advocacy Centre for the Elderly
Who is your SDM if you become
incapable for Personal Care?
****Summary
Someone you choose in a POA
Personal Care
 A Court Ordered Guardian of the
Person
 For health decisions – the person or
persons highest ranking in the
hierarchy of SDMs in the Health Care
Consent Act
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Advocacy Centre for the Elderly
Who is your SDM if you become
incapable for Personal Care?
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You can prepare a POA Personal Care to
choose someone to act for you
POA Personal Care – is a document, in
writing, in which you name someone (or
more than one person) to be your attorney
for personal care. You can also write in that
document your wishes about health care
and treatment. That document must be
signed by you and two witnesses in the
presence of each other.
Advocacy Centre for the Elderly
How do you get a POA Personal
Care done?
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How do you get a POA Personal Care
done?
- use OPGT Kit
- go to a free legal clinic ( some do
these documents)
- go to a lawyer
Advocacy Centre for the Elderly
Important things to think about
before signing a POA for
Personal Care
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Do you need a POA Personal Care? Why?
Do you have someone that you can trust to
name as attorney- remember that this
persons will be able to make decisions
about where you LIVE, what HEALTH
CARE you will get or won’t get, what food
you eat and clothes you wear and how your
hygiene is maintained and what risks you
can take…
Advocacy Centre for the Elderly
When POA Personal Care Comes
into Effect
A POA Personal Care is different than
a POA Property as to when it comes
into effect
 A POA Personal Care ONLY comes
into effect and gives authority to your
SDM to make decisions for you when
you are not mentally capable for
personal care decisions
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Advocacy Centre for the Elderly
Who is your SDM if you are not
mentally capable to make Health
Decisions?
You ALWAYS have an SDM for
Health Care even if you have not
done a POA Personal Care
 Your SDM is the person HIGHEST on
the list of SDMs in the Health Care
Consent Act
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Advocacy Centre for the Elderly
List of SDMs for Health Care
1.
2.
3.
4.
5.
6.
7.
8.
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Court Ordered Guardian of the Person
Attorney in a Power of Attorney for
Personal care
Representative ( person appointed by the
Consent and Capacity Board)
Your spouse or partner
Your Child or parent
Your Brothers or sisters
Any of your other relatives
The Public Guardian and Trustee
Advocacy Centre for the Elderly
Requirements for Person to
be an SDM
Person highest in hierarchy may give or refuse
consent only if he or she:
a) is capable in respect to the treatment
b) is at least 16 years old unless the parent of the
incapable person
c) is not prohibited by a court order or separation
agreement from acting as SDM
d) is available
e) is willing to act as SDM
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Advocacy Centre for the Elderly
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List of SDMs for Health Care
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If you have more than one person in the
same category that is available to act for
you as SDM, then all of them must act
together and agree or they may pick one of
the group to act for you – so if you have
three children all three may act for you or
they must choose which one will act for you
– THEY must agree in some way as to what
the decision is for you and how many of
them are “active” in the decision making.
Health providers cannot pick which of them
that may act for you
Advocacy Centre for the Elderly
Definition of Spouse
Two persons (same sex or opposite sex) who are
(a) married to each other; or
(b) living common law and,
i) have cohabited for at least one year, or
ii) are together the parents of a child, or
iii) have together entered into a cohabitation
agreement under s. 53 of the Family Law Act.
Not spouses if living separate and apart as a result of
a breakdown of their relationship.
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Advocacy Centre for the Elderly
Definitions
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PARTNER
Two persons who have lived for at least one
year and have a close personal relationship
that is of primary importance in both
person’s lives
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RELATIVE
People are relatives if related by blood,
marriage or adoption
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Advocacy Centre for the Elderly
What's the difference between a
POA Personal Care and an
“Advance Directive’?
The Ontario legislation ONLY refers to POAs
for personal care and to the ability of people
to express “wishes” about future health care
 There is no reference to advance directives or
living wills
 You cannot validly appoint someone as your
decision maker in an advance directive – You
can only do that in a valid POA Personal Care
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Advocacy Centre for the Elderly
Questions?
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Any questions about POA personal
Care or other Substitute Decision
Makers for Personal Care or Health
Care?
Advocacy Centre for the Elderly
What are the Duties of an
Attorney for Property and
Guardian for Property?
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Advocacy Centre for the Elderly
Fiduciary duty
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A “fiduciary duty” - To act with honesty
and integrity and in good faith, for the
benefit of the Donor.
If an Attorney’s decision will have an
effect on the incapable person’s
personal comfort or well-being, the
Attorney shall consider that effect in
determining whether the decision is for
the incapable person’s benefit
Advocacy Centre for the Elderly
Participation
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An Attorney for Property and an
Attorney for Personal care shall
both encourage the incapable
person to participate, to the best of
his or her abilities, in the guardian’s
decisions about the property and
personal care
Advocacy Centre for the Elderly
Family and Friends
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An Attorney for Property and an Attorney for
Personal Care shall both seek to foster
regular personal contact between the
incapable person and supportive family
members and friends of the incapable
person.
Neither type of attorney has the authority to
block access by other relatives to a resident
in a LTC home unless its an issue of safety
Advocacy Centre for the Elderly
Consultation
An Attorney for Property and the
Attorney for Personal Care shall both
consult from time to time with:
 supportive family members and
friends of the incapable person who
are in regular personal contact with
the incapable person; and
 the persons from whom the incapable
person receives personal care.
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Advocacy Centre for the Elderly
Accounts
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An Attorney for Property shall, in
accordance with the regulations, keep
accounts of all transactions involving
the property.
Advocacy Centre for the Elderly
Duty to Account and
Records of an
Attorney for Personal Care
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The attorney for personal care has a duty to keep records
The records should include
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A list of each personal care decision, the reason for
it and the date, and . . .
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A copy of medical reports for any decision
Names of any persons consulted a description of the
incapable person's wishes, if any, relevant to each
decision, that he or she expressed when capable and
the manner in which they were expressed;
A description of the person's wishes
The attorney's or guardian's opinion on each of the
factors that the attorney is required by law to take into
account
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Advocacy Centre for the Elderly
Delivery of Accounts
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An attorney under a continuing power of
attorney shall give a copy of the accounts and
records he or she keeps to any of the
following persons who requests it:
•
The incapable person.
•
The incapable person's attorney for
personal care or guardian of the person.
Advocacy Centre for the Elderly
Required Expenditures
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An Attorney for Property shall make the
following expenses from the incapable person’s
property . . .
 Expenses that are reasonably necessary for
the person’s support, education and care . . .
 Expenses that are reasonably necessary for
the support, education and care of the
person’s dependants . . .
 Expenses that are necessary to satisfy the
person’s other legal obligations.
Advocacy Centre for the Elderly
Duties of Guardian of the
Person and Attorney in
POAPC
To explain to the incapable person
what their duties and powers are
 To make decisions under HCCA
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In accordance with wishes expressed
by person when capable that are
applicable to the circumstances
 Later wishes prevail over earlier
 If no wishes then best interests
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Advocacy Centre for the Elderly
Other Duties
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Not restrain/confine unless essential
to prevent serious bodily harm or to
allow the person greater freedom or
enjoyment
Advocacy Centre for the Elderly
Summary****
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Capable people make their own decisions
While capable, a person may prepare
POAS to appoint someone to be their future
SDM
If incapable, everyone automatically has an
SDM for health care even if they didn’t do a
POA because of the HCCA
If person incapable, someone else would
have to DO something to become the SDM
for property of that person if that person had
not done a POA property while capable
Advocacy Centre for the Elderly
Questions?
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Any questions about any part of this
webinar?
Advocacy Centre for the Elderly
This webinar was brought to you by
CLEONet
For more information visit the Health and
Disability section of CLEONet at
www.cleonet.ca
For more public legal information webinars
visit:
http://www.cleonet.ca/training
2010, Community Law School
(Sarnia-Lambton) Inc.
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