A #Power of Attorney for Personal Care (“#POA”) is a legal document in which an individual can specify who has authority to make care decisions on his or her behalf in the event that person becomes mentally incapable of doing so. A person is deemed to be incapable of making personal care decisions if that person is not able to understand information relevant to making a decision concerning his or 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 decision.
A person may be capable with respect to some decisions and simultaneously incapable with respect to others.
In addition to identifying a person authorized to make decisions on one’s behalf, a person (the “grantor”) can use the POA to state particular wishes related to medical treatment, shelter, safety, nutrition or hygiene that he or she would like to have followed in the event of the grantor’s incapacity.
The decision-maker appointed under the POA is called an “attorney”, although in health records the attorney tends to be referred to as the POA (even though a POA is actually the document itself). The attorney is expected to make decisions and arrange for care services for the grantor, but is not expected to provide the care directly. (Note that the POA for personal care does not provide the attorney with control over the grantor’s finances. This is a separate responsibility that must be assigned in a Power of Attorney for Property).
Health care professionals are no doubt familiar with the concept of a substitute-decision maker (“SDM”). They know that when treating a patient who is not capable of making a particular treatment decision, consent must be sought from the SDM.
Health care professionals do not choose the SDM but instead must turn to a hierarchical list of individuals in the Health Care Consent Act. This Act expressly identifies who is the SDM, and sets out alternates in case the SDM is unavailable, unwilling or also legally incapable. The SDM list is as follows:
- Guardian of the patient
- Attorney for personal care authorized by a Power of Attorney for Personal Care
- Patient’s representative appointed by the Consent and Capacity Board
- Spouse or partner
- Child or parent
- Access parent
- Any other relative
Thus, the attorney is a particular type of decision-maker and is not synonymous with SDM, which is a common misunderstanding held by many health care professionals.
There are several reasons why a person would want to execute a POA rather than leave the choice of SDM to the provisions of the Health Care Consent Act:
Ability to choose one’s decision-maker
For a variety of reasons, patients do not always want their SDMs selected by default in accordance with the Health Care Consent Act. Some people do not have a good relationship with their parents, do not want to burden their children, or would rather leave the decision-making to a person with health care knowledge. Some people would rather keep their personal health information private from family; executing a Power of Attorney for Personal Care can prevent family members from having access to one’s health information.
Ability to make specific health care wishes
A POA can be used as a living will to make specific wishes known. For example, grantors may indicate that they would like their organs to be donated for therapeutic purposes, medical education or scientific research. A person may have preferences about long-term care, end of life treatment or even dietary preferences.
Although every SDM is legally obligated to abide by a patient’s prior capable wishes, the POA is an opportunity to clearly express those wishes in writing and thus avoid uncertainty in the future. The POA can be used as a tool to ensure the SDM knows the grantor’s exact wishes. It can also avoid disputes among family members, particularly in end of life situations where relatives may disagree about the withdrawal of life support.
Note that it is always advisable for wishes to be communicated to the proposed attorney orally, in addition to being documented in the POA.
Broader scope of authority
An SDM under the Health Care Consent Act is entitled to give or refuse consent to treatment, admission to a care facility or a personal assistance service on behalf of the grantor. In addition to decisions under the Health Care Consent Act, the attorney for personal care can also make decisions about nutrition, shelter, clothing, hygiene and safety in accordance with the Substitute Decisions Act.
Increased chance that wishes will be followed
If a person’s wishes are not documented in writing, then it will be up to the decision-maker(s) to accurately recall or infer what the person would have wanted. Absent a known prior capable wish, the attorney must decide in the grantor’s best interests. A POA significantly enhances the probability that someone will make the same decisions that the grantor would otherwise have made for himself or herself.
In conclusion, the purpose and attraction of a POA is ultimately the ability to control one’s future and dictate what will happen to one’s body when the grantor is no longer able to make his or her own decisions.
*This article provides a brief overview about Powers of Attorney for Personal Care. #Legal advice should be sought prior to executing a POA or accepting the position of an attorney. Health care providers may wish to consult with hospital counsel in the event a POA dispute or concern arises.