As life expectancy continues to lengthen, many Canadians find themselves wondering what will happen if a time ever arrives when they are no longer able to make decisions about their own care.  Who will authorize medical treatment for them?  Who will decide when it’s time to go to a nursing home?  Who will select the nursing home?  Who will decide when it’s time to “pull the plug” on the life support machine?

In Ontario, it is now possible for individuals to give advance instructions regarding decisions like these by signing a Power of Attorney for Personal Care (“PAPC”).  Many people refer to this document as a “Living Will”.

The PAPC does not deal with financial matters.  To delegate decision-making powers over your finances, you need a Power of Attorney for Property.  See the companion article on this website.

Choosing the Right Person

One of the main functions of the PAPC is to let you select the person or people who will handle personal care decisions for you if you become incapable of doing it yourself.   This person is referred to as your “attorney for personal care.”  This may be your spouse, your partner, or your children--but it need not be, if there is someone else you would prefer.  You may select one person or several to share the decision-making power.  You may name one or more as your first choice, with others acting as alternates.  The combinations are as varied as the individuals who choose to make a PAPC.

The decisions that have to be made can be difficult ones, so you will want to assure yourself in advance that the person to whom you propose to delegate this power will be prepared to accept it when the time comes to use it.  If some family members handle stressful situations better than others, they might make the better attorneys.

Special Provisions

The second main function of the PAPC is to let you give advance instructions regarding how you will want to be treated in certain situations.   Ordinarily, most people want to give their attorneys power to consent to or refuse medical treatment on their behalf.

One common request is that the individual not be kept alive artificially, using “heroic measures,” when all hope of recovery is gone--for example, if doctors consider you to be “brain dead”.  If you share this view, your lawyer can prepare a clause that will convey your instructions to your attorney.  He or she will still have to decide (together with your doctors) when the time has come to “pull the plug,”  but knowing that this was your wish will make it easier emotionally for your attorney to reach such a decision.

Other instructions can be included in the PAPC on various subjects.  If your religious beliefs prohibit certain types of medical treatment (for example, blood transfusions), you can specify in the PAPC that this treatment is not to be given.  If you are a vegetarian, you can specify that you are not to be fed meat.  As with your choice of attorney, the instructions regarding your treatment can be tailored to your wishes, making the possibilities infinite.

Can My Attorney Override My Own Decisions?

So long as you are mentally competent to make decisions about yourself, doctors and other health practitioners are obliged to ask for your consent before providing medical treatment. Your attorney will not come into the picture unless it is suspected that you are incompetent. 

If you are concerned about the possibility of a “grey area” where it is not clear whether you are competent or not, your PAPC can include conditions that prevent your attorney from making decisions on your behalf until your state of incompetency has been confirmed.  You can then specify the manner in which competency is to be determined.  If you don’t specify, a qualified assessor can be called in to test your capacity and make a determination.

What If I Don’t Have a PAPC?

If you don’t have a PAPC but become incompetent to make medical decisions, a court or the Consent and Capacity Board can appoint someone as your guardian or representative, and this person can be given power to grant or refuse consent to treatment on your behalf.  However, if that has not been done, your next of kin can give or refuse consent.  Next of kin are ranked in order of the presumed strength of the relationship to you, starting with your spouse or partner, then moving on to your children over 16, your parents, your siblings, and more distant relatives. 

If you have a definite preference regarding the person who should make such decisions on your behalf, the best way to ensure that your wishes will prevail is to sign a PAPC.

Questions?

Lawyers James F. O’Brien or Karen A. Selick would be happy to meet with you to discuss other questions you might have regarding powers of attorney for personal care.