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Prepared by Norman Pickell, a lawyer based in Goderich,
Ontario, who prepares Powers of Attorney and provides legal advice concerning the
same.
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Definitions:
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"Grantor" - the person who appoints someone else to make personal care
decisions for him/her
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"Attorney" - the person(s) chosen to make those personal care
decisions
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Effective Date:
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only when the Grantor is not able to understand information that is
relevant to making a decision concerning his/her own health care, nutrition,
shelter, clothing, hygiene or safety, or is not able to appreciate the
reasonably foreseeable consequences of a decision or lack of a decision
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Duties of Attorney:
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once authorized to act as Attorney, the Attorney should obtain a copy of
the Power of Attorney for Personal Care from whoever has it
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determine if there are any specific duties given in the Power of Attorney
for Personal Care document
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determine if there are any specific restrictions contained in the Power of
Attorney for Property
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explain the powers and duties of the Attorney to the Grantor
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encourage the Grantor to participate in decisions to the best of his/her
ability
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encourage regular personal contact between the Grantor and supportive
family members and friends
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consult with:
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supportive family members and friends who are in regular
personal contact with the Grantor
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persons providing personal care to the Grantor |
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encourage, as much as possible, the Grantor to be independent
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choose the least restrictive and intrusive course of action that is
available and is appropriate in the circumstances
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Attorney shall not use confinement or monitoring devices or restrain the
Grantor physically or by means of drugs, and shall not give consent to
someone else to do that, unless the practice is essential to prevent serious
bodily harm to the Grantor or to others, or allows the Grantor greater
personal freedom or enjoyment
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Attorney shall make decisions on incapable person's behalf in
accordance with the following rules:
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follow wishes or instructions of Grantor expressed
while capable
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if those wished or instructions are unknown, try to ascertain whether
there are such wishes
or instructions
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a later wish or instruction expressed while capable prevails over an
earlier wish or
instruction
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if there is no wish or instruction, or it is impossible
to follow the wish or instruction, do
what is in the best interests of the incapable person
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in determining "best interests", consider:
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| 1. |
values & beliefs that the Attorney knows the
Grantor held when capable
and believes the Grantor would still act on if capable;
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| 2. |
Grantor's current wishes, if they can be ascertained; and
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| 3. |
whether the Attorney's decision is likely to improve the
quality of the
Grantor's life, prevent the quality of the Grantor's life
from deteriorating, or reduce the rate at which the quality of
the Grantor's life is likely to deteriorate;
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| 4. |
whether the benefit to the Grantor of the decision
outweighs the risk of harm to the Grantor from an alternative
decision.
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Records to be Kept:
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Attorney shall keep records of decisions made on the Grantor's behalf.
See the separate article by Norman Pickell on "Records to be Kept by
Personal Care Attorney".
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Attorney shall not disclose any information contained in these records
except:
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| 1.
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to the Grantor upon request of the Grantor;
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| 2.
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to the Grantor's Property Attorney upon request of the said Attorney;
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to a subsequently named Personal Care Attorney;
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to the Grantor's Estate Trustee upon the death of the Grantor;
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as required by Court Order; or
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| 6.
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as is consistent with or related to his/her duties as Attorney.
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Court Intervention:
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the Court can give directions on any question arising under the Personal
Care Power of Attorney
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the following people can apply to the Court for these directions:
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the Personal Care Attorney;
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the Property Attorney;
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a dependant of the Grantor;
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| 4.
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the Public Guardian and Trustee ie. a representative of the Ontario
Government;
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| 5. |
with the permission of the Court,
any other person; this can
include a relative or friend of the Grantor.
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Termination of Powers of Attorney:
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the powers of a specific Personal Care Attorney end upon the earliest of:
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1.
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the death of the Grantor;
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2.
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when the Power of Attorney is revoked;
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3.
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when the Grantor signs a new Personal Care Power of Attorney;
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when the Court appoints a Guardian of the Grantor;
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when the Attorney becomes incapable of personal care of the Grantor;
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when the Attorney resigns;
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| 7.
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when the Attorney dies.
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Liability of Attorney:
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the Attorney is not liable for anything done or omitted in good
faith in connection with the Attorney's powers and duties under the
Substitute Decisions Act
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