In CK Senior, Issue 15, I discussed the important considerations when selecting an appropriate substitute decision maker in Powers of Attorney. In this issue I will focus specifically on the Powers of Attorney for Personal Care. In particular I will discuss several possible special instructions (also known as “advanced directives”) that you may want to consider.

WHAT IS POWER OF ATTORNEY?

In Ontario, the Substitute Decisions Act provides for two different types of Power of Attorney documents. The Power of Attorney for Personal Care can generally be considered the “health care” power of attorney; sometimes referred to as a living will. The Continuing Power of Attorney for Property generally deals with decision making regarding your assets, liabilities, and financial matters.

SUBSTITUTE DECISION MAKERS ARE REQUIRED TO FOLLOW YOUR WISHES

The Substitute Decisions Act requires that substitute decision makers (“Attorneys”) follow the wishes and instructions expressed by the incapable person prior to their mental incapacity. These wishes may include immensely important subjects such as preferences regarding long-term care, or end-of-life decisions. However, as important as it is to communicate your specific wishes and preferences to your Personal Care Attorney in case the circumstances should arise, I always counsel clients that it is also important to consider echoing those wishes in writing. Reiterating your special instructions within your Personal Care Power of Attorney will at the very least help make difficult life-changing decisions somewhat easier for your Personal Care Attorney

FAMILY INVOLVEMENT IN DECISIONS

For various reasons, which I discussed in Issue 15, you may not appoint any of your family members to be your Personal Care Attorney. Or, for example, you may select just one or a few of your children to be your Personal Care Attorney. In such cases, although you do not want certain family members to have ultimate decision-making authority regarding your health matters, you may wish for your Personal Care Attorney to involve these other family members in certain decisions and to consult with them before making a final decision.

PREFERENCE OF CARE FACILITY, HOME CARE, OR LIVING WITH CHILD

Your children may have suggested to you, or you may have discussed with your children, that you would agree to living with them if the situation should ever arise in which you require permanent health care. On the other hand, you may specifically want to ensure that your children would not feel obligated to provide such care for you, or perhaps you would refuse such an offer from your children. If you would prefer to be cared for at a certain facility, you can include these preferences in your Personal Care Power of Attorney. Also keep in mind that if you prefer, and if your health and financial situation permits, you may wish to receive long-term care within the comfort of your own home. You should consider stating these intentions in your Personal Care Power of Attorney.

NO RESUSCITATION & DISCONTINUE

LIFE SUPPORT

Including a no resuscitation provision in your Power of Attorney means that you do not consent to “CPR” in certain circumstances. If you include such a provision you will need to indicate whether or not this is “no matter what” or only in certain scenarios depending on your medical condition and likelihood of recovery. Discontinuation of life support is quite a different directive and applies typically in situations involving comas. Alternatively, you may wish that your life be prolonged regardless of your medical condition or diminished health.

BLOOD TRANSFUSIONS

Depending on your personal or religious beliefs, you may wish to refuse blood transfusions.

ORGAN DONATION

In addition to donor consent forms, consider including your wishes regarding organ donation in your Personal Care Power of Attorney, as this may have implications regarding your end of life care.

These are just some of the possible special instructions that you may consider appropriate to include in your Personal Care Power of Attorney. The above list, of course, is not exhaustive and your particular circumstances or beliefs may require the inclusion of other advanced directives. Everyone has different beliefs, circumstances and experiences; the most important thing is that you have these discussions with your loved ones and family, as well as with the lawyer drafting your Power of Attorney documents, to make sure that your Personal Care Power of Attorney is right for you.

Jason P. Mallory, H.B.A., J.D.

*The comments in this article are not meant as legal opinions and readers are cautioned not to act on information provided without seeking specific legal advice with respect to their particular situation.

Jason P. Mallory
is a lawyer with Kerr Wood & Mallory in Blenheim and recipient of the Margaret E. Rintoul Award in Estate Planning