Articles by Norman Pickell Duties and Responsibilities of Attorney for Personal Care


Advance
 

Prepared by Norman Pickell, a lawyer based in Goderich, Ontario, who prepares Powers of Attorney and provides legal advice concerning the same.

 

Definitions:

 

"Grantor" - the person who appoints someone else to make personal care decisions for him/her

 

"Attorney" - the person(s) chosen to make those personal care decisions


Effective Date:

  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


Duties of Attorney:

  once authorized to act as Attorney, the Attorney should obtain a copy of the Power of Attorney for Personal Care from whoever has it
  determine if there are any specific duties given in the Power of Attorney for Personal Care document
  determine if there are any specific restrictions contained in the Power of Attorney for Property
  explain the powers and duties of the Attorney to the Grantor
  encourage the Grantor to participate in decisions to the best of his/her ability
  encourage regular personal contact between the Grantor and supportive family members and friends
  consult with:
supportive family members and friends who are in regular personal contact with the Grantor
persons providing personal care to the Grantor
  encourage, as much as possible, the Grantor to be independent
  choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances
  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
  Attorney shall make decisions on incapable person's behalf in accordance with the following rules:

 follow wishes or instructions of Grantor expressed while capable

if those wished or instructions are unknown, try to ascertain whether there are such wishes or instructions
a later wish or instruction expressed while capable prevails over an earlier wish or instruction

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

in determining "best interests", consider:
1. values & beliefs that the Attorney knows the Grantor held when capable and believes the Grantor would still act on if capable;
2. Grantor's current wishes, if they can be ascertained; and
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;

4. whether the benefit to the Grantor of the decision outweighs the risk of harm to the Grantor from an alternative decision.


Records to be Kept:

  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".

Attorney shall not disclose any information contained in these records except:

1.

to the Grantor upon request of the Grantor;

2.

to the Grantor's Property Attorney upon request of the said Attorney;

3.

to a subsequently named Personal Care Attorney;

4.

to the Grantor's Estate Trustee upon the death of the Grantor;

5.

as required by Court Order; or

6.

as is consistent with or related to his/her duties as Attorney.


Court Intervention:

  the Court can give directions on any question arising under the Personal Care Power of Attorney

the following people can apply to the Court for these directions:

1.

the Personal Care Attorney;

2.

the Property Attorney;

3.

a dependant of the Grantor;

4.

the Public Guardian and Trustee ie. a representative of the Ontario Government;

5. with the permission of the Court, any other person; this can include a relative or friend of the Grantor.


Termination of Powers of Attorney:

  the powers of a specific Personal Care Attorney end upon the earliest of:
1.

the death of the Grantor;

2.

when the Power of Attorney is revoked;

3.

when the Grantor signs a new Personal Care Power of Attorney;

4.

when the Court appoints a Guardian of the Grantor;

5.

when the Attorney becomes incapable of personal care of the Grantor;

6.

when the Attorney resigns;

7.

when the Attorney dies.


Liability of Attorney:

  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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Norman B. Pickell  Lawyer - Mediator - Arbitrator  58 South Street, Goderich, Ontario N7A 3L5  Telephone (519) 524-8335   Fax (519) 524-1530