(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to understand the duties of an attorney under a power of attorney for personal care. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation before providing that advice, rather than relying on the general information provided in this Guide.)

An attorney for personal care has important responsibilities in making personal and health care decisions on behalf of another person which must be exercised and performed diligently and in good faith. Where an attorney for personal care has acted in good faith, no legal action can be brought against him or her for anything done or omitted in the carrying out of the responsibilities under the power of attorney for personal care. The Substitute Decisions Act has outlined the attorney’s duties as follows:

• to explain to the incapable person what the attorney’s powers and duties are:
• to make decisions under the Health Care Consent Act in accordance with that Act;
• to make other decisions in accordance with the following principles:
  • if the attorney knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the attorney shall make the decision in accordance with that wish or instruction;
  • the attorney shall use reasonable diligence in ascertaining whether or not there are such wishes or instructions;
  • a later wish or instruction prevails over an earlier wish or instruction; and
  • if the attorney does not know of a wish or instruction made while the person was capable or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the best interests of the incapable person;
  • in deciding what the person’s best interests are, the attorney must consider the values and beliefs that the guardian knows the person held while capable and believes the person would still act on if capable;
  • the person’s current wishes, if they can be ascertained; and
    • the following factors:
    • whether the decision is likely to:
      • improve the quality of the person’s life
      • prevent the person’s quality of life from deteriorating, or
      • reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate;
    • whether the benefit the person is expected to obtain from the decision outweighs the risk of harm from an alternate decision;
• to keep the required records (see details on the next page);
• to encourage the person to participate, to the best of his or her abilities, in the attorney’s decisions on his or her behalf;
• to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person;
• to consult with:
  • supportive family members and friends of the incapable person who are in regular contact with the incapable person;
  • the person from whom the incapable person receives personal care;
• to foster independence, as far as possible;
• to choose the least restrictive and intrusive course of action that is appropriate;
• to not use confinement or monitoring devices or restrain the person physically or by the use of drugs (an attorney shall not give consent to the use of confinement, monitoring devices or means of restraint, unless the practice is essential to prevent serious bodily harm to the person or to others, or allows the person greater freedom or enjoyment).

An attorney for personal care is required by Regulation under the Substitute Decisions Act to maintain the following records:

• a list of all decisions regarding health care, safety and shelter, including the nature and date of, and reason for, each decision;
• all medical reports or other documents relating to each decision;
• the dates and names of persons consulted, including the incapable person, in respect of each decision;
• a description of the incapable person’s wishes, if any, relevant to each decision that he or she expressed when capable, including the manner in which they were expressed;
• a description of the incapable person’s current wishes, if they are ascertainable and relevant to the decision;
• for each decision taken, the attorney's opinion on each of the factors taken into account in determining the incapable person’s best interests (listed on the other side of this sheet); and
• a copy of the power of attorney for personal care and a copy of any court order relating to the authority of the attorney or the incapable person’s care.

These records must be retained by the attorney until a release is obtained from a person entitled to provide it or court order. If a new attorney is appointed, the records maintained by the prior attorney must be delivered to the new or substitute attorney. On death, the records must be delivered to the estate trustee for the deceased incapable person.

Where a question arises concerning the personal or health care of an incapable person, an application may be brought to the court for directions.

   FURTHER QUESTIONS

Any questions? If you have any questions about duties of an attorney under a power of attorney for personal care, please contact us at:

W. Bruce Drake

Hooey · Remus

Telephone: (416) 362-2051

Facsimile: (416) 362-3646

Suite 400, 1 University Avenue

Toronto, Ontario M5J 2P1

 

eMail: bdrake@hooeyremus.com

Website: www.hooeyremus.com

This page was originally created on July 3, 1996 and was last updated on January 1, 2001.

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