April 11, 2018 By: Read Time: 4 minutes
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This article originally appeared in the March/April 2018 edition of Fifty-Five Plus Magazine.

According to Statistics Canada, the proportion of the senior population has been increasing steadily over the past 40 years. The number of Canadians who are 65 or older grew 20 per cent between 2011 and 2016. It is the largest increase for that age group in 70 years and the highest increase in the proportion of seniors since Confederation. As you plan for your future, one of the questions that you must consider is: what will happen if you don’t have a friend or relative to appoint as your Power of Attorney?

Power of Attorney

A power of attorney is a legal document which grants one or more people the authority to act on behalf of another person. Your attorney can make personal care decisions that include decisions concerning your health care, nutrition, shelter, clothing, hygiene or safety. Or your attorney can make decisions about your property, which usually includes all decisions over your financial assets (i.e. your house, your investments, your bank accounts).

Who can I name?

For a power of attorney for personal care, you can name almost anyone, including a family member or a personal friend. However, you cannot name someone who is paid to provide you with healthcare services, or someone who provides you with residential, social or support services, unless the person is also your spouse, partner or relative. As well, any person who you appoint as your attorney must be over the age of 16 years and must be mentally capable.

If you have not made a Power of Attorney for Personal Care, or if the person you have named as your attorney for personal care has predeceased you, and you become mentally incapable of making personal care decisions, the Health Care and Consent Act, 1996 allows other substitute decision makers to make some of your healthcare decisions on your behalf. The possible decisions that could be made on your behalf are about health treatment, admission to a long-term care facility and personal assistance services, such as bathing.

For example, if you become mentally incapable of making a decision about a surgery that is recommended to you, your doctor must get your substitute decision maker’s consent before proceeding. If you don’t have an attorney for personal care or a guardian of the person, or if your doctor is unable to reach them, then your doctor must try to get consent from one of the following people:

Your representative. This is someone appointed under the Consent and Capacity Board to make decisions about your treatment, admission to a long-term care facility, or personal assistance services in a long-term care facility. Anyone can apply to become your representative, including your family or friends, or you can apply to have someone appointed as your representative:

  • Your spouse or partner;
  • Your child if they are at least 16 years old;
  • Your parent
  • Your brother or sister;
  • Any other relative; or
  • The Office of the Public Guardian and Trustee.

The power of attorney for personal care only takes effect if you become mentally incapable of making your own personal care decision. For treatment decisions, the health practitioner proposing the treatment must decide if you are capable of making the required decision before turning to your attorney for personal care, or any other person listed under the Health Care and Consent Act, 1996.

However, if you rely on the Health Care and Consent Act, 1996 to determine who should be your substitute decision maker, then you have lost the choice to make that decision on your own.

Who can I name as my attorney for property?

The only limitations on choosing an attorney for property is that the person must be at least 18 years old; must be mentally capable when they are appointed; and, because the attorney will be responsible for making all of your financial decisions, the person should be trustworthy and good at handling money.

However, who should you consider naming as your attorney for property if you don’t have any friends or relatives to appoint? In those circumstances, it might be appropriate to consider appointing a trust company to manage your assets.

If the person who you have named as your attorney for property has predeceased you or is mentally incapable when it becomes necessary for them to act, then the Office of the Public Guardian and Trustee can also be appointed as your guardian for property.

Guardian of property vs attorney for property

A guardian of property is someone who is appointed to manage the financial affairs of a person who is mentally incapable of doing so for him or herself. A Guardian may be appointed by the Office of the Public Guardian and Trustee or by the Court. The role of a guardian of property is to step into the shoes of the incapable person and make financial decisions and financial transactions on that person’s behalf. The difference between a power of attorney and a guardianship order is that a power of attorney is decided at the time that you are mentally capable of making decisions, including the decision of who should be your substitute decision maker. However, a guardianship order occurs because you are no longer mentally capable of making the decision of who should be your substitute decision maker.

Office of the Public Guardian and Trustee

The Office of the Public Guardian and Trustee (“PGT”) is part of Ontario’s Ministry of the Attorney General. The PGT provides a range of services that safeguard the legal, personal and financial interests of mentally incapable adults. The PGT can be appointed as a guardian of property. In this role, the PGT makes all financial decisions and conducts transactions that a mentally incapable adult would otherwise not be able to handle themselves. This includes receiving and depositing income, making investments, maintaining and selling property, applying for benefits, filing income tax returns, and paying bills.

On very rare occasions, the PGT may be appointed as a guardian of the person to make personal care decisions on behalf of an incapable person. When the PGT is appointed as a guardian of care, the PGT will make decisions to protect the incapable person from extreme physical risk.

Conclusion

If you are uncertain who you should appoint as your attorney for property or personal care, you should consult with a professional to discuss your options.

If you would like to appoint a Power of Attorney or have questions about who can be appointed as your POA, contact our Wills and Estates Practice Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.