In my last article, I discussed the importance of making a will. An equally important, but often overlooked consideration is a person’s wishes regarding end of life treatment decisions. Various end of life decisions a person may consider include, and are not limited to, resuscitation, the use of breathing machines or tubes, dialysis, and organ or tissue donation.
Legal documents which set these wishes out are known as advanced directives, and there are two types. One is a living will and the other is a power of attorney for personal care. In a living will, a person conveys their opinion and instructions regarding end of life treatment decisions so caregivers, family and friends know the person’s wishes in the event that the person is no longer physically or mentally capable of making such decisions. In a living will, a person does not appoint a person to make decisions on their behalf, and this is where a power of attorney for personal care may be a better option.
Just like a living will, a power of attorney for personal care is a type of advanced care directive which permits a person (the grantor) to provide instructions regarding end of life decisions. However, the power of attorney for personal care also permits the grantor to appoint another person (the attorney) to make decisions on the grantor’s behalf in the event the grantor cannot make these decisions, due to physical or mentally incapacity. A grantor may also name an alternate attorney if the first named attorney in the power of attorney for personal care dies, becomes incapable of personal care, or resigns.
Conversely, a grantor may also appoint join attorneys to act together.
The power of attorney for personal care is a powerful legal document which enables the attorney to make any decision on the grantor’s behalf that the grantor is incapable of making. Therefore, when executing a power of attorney for personal care, the grantor must understand that should they become incapable, the attorney may need to make decisions for them and the grantor must also appreciate that the decisions made by the attorney will be for their welfare.
When properly drafted, a power of attorney for personal care is an effective legal document that can be very beneficial for a grantor when they are no longer capable of making personal care decision for themselves.
Author: Sonal Modi, © Nelligan O’Brien Payne LLP 2010
