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Jul 2024

What Attorneys for Personal Care Should Know

By Manda Ivezic

Having Powers of Attorney for Personal Care allowed an individual to choose who they want to be responsible to make decisions and act for them, when they cannot speak for themselves or make decisions for themselves regarding their own healthcare. This may happen not only in the event of a coma, but due to a debilitating disease or injury, and may be long-term. Attorneys for personal care face sensitive decisions about the well-being of another, and may find it challenging to balance the incapable person's wishes and needs with the practicality of cost and the family’s input.

This article provides information for people who are appointed (the “attorney”) by an individual (the “grantor” or the “incapable person”) in a Power of Attorney for Personal Care document (the “POA”). It is a companion to my prior article regarding attorneys for property.

What is the scope of authority of an Attorney for Personal Care?

‘Personal care’ encompasses decision-making on healthcare and medical treatment, along with the incapable person’s safety, hygiene, and physical maintenance - matters relating to nutrition, clothing, cleanliness, and shelter. The attorney’s scope of discretion and authority is subject to limitations, restrictions, or specific instructions as expressed by the grantor.

Ontario’s Substitute Decisions Act (“SDA”) lays out an attorney’s responsibilities. The attorney is empowered to make decisions to which Ontario’s Health Care Consent Act (“HCCA”) relates, and so the SDA refers to this legislation as well. The attorney can consent to “treatment” and to “admission to a hospital or psychiatric facility” on behalf of an incapable person. “Treatment” is defined broadly in the HCCA -  anything for “a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose”. However, capacity assessments, examinations to determine the general nature of the incapable person’s condition, taking a health history, or the communication of a diagnosis are not within the definition of “treatments”.

The HCCA says that an attorney must decide whether or not to consent to “treatment” on behalf of an incapable person:

  1. in accordance with known wishes the grantor expressed while capable and after reaching at least 16 years of age;
  2. or, if the grantor’s wishes are not known or not possible to comply with, then in the incapable person’s best interests.

The HCCA goes on to set out the attorney’s considerations in determining the incapable person’s best interests. Among other things, this includes the incapable person’s values and beliefs, which they held when capable and which the attorney believes they would still act on if capable. The attorney must also consider the treatment’s likely impact - would the treatment likely improve their condition or well-being? Prevent or reduce deterioration? What would happen without the treatment? Do benefits of the treatment outweigh the risks, and how would it compare with a less restrictive or intrusive treatment?

For decisions on other personal care matters, beyond treatment or admission governed by the HCCA, the SDA similarly says that the attorney must act according to the incapable person’s wishes, if known. The attorney must be reasonably diligent in determining whether the grantor expressed any wishes. More recently expressed wishes prevail over earlier ones. Therefore, an attorney should keep in mind that the incapable person’s wishes may have been expressed in writing in the POA, in a separate document, or verbally, and may have changed over time. The attorney should take steps to inform themselves of the person’s most recent wishes, which may involve checking with family or friends or searching for documentation. And again, if the attorney does not know of the grantor’s wishes on a matter or if it is not possible to comply, then the decision must be based on the incapable person’s best interests. The SDA gives similar guidelines for the attorney to assess what the person’s best interests are.

What are the obligations and duties of an attorney for property?

The obligations of a personal care attorney are found in the SDA, sections 66 and 67(1) . Among other things, the attorney should be careful to do the following while acting for an incapable person:

  • foster regular personal contact between the incapable person and supportive family and friends;
  • consult periodically with the care providers involved, and with the supportive family members and friends;
  • promote the incapable person’s independence to the extent possible, and encourage them to participate in decision-making as far as their ability allows;
  • choose the least restrictive and intrusive course of action that is available and appropriate;
  • keep records of the decisions they have made for the incapable person.

Compensation

Whereas attorneys for property are entitled to take compensation for their services without needing court approval to do so, attorneys for personal care do not have the same privilege. The SDA does not give attorneys for personal care any entitlement to take payment for their time and effort, or for reimbursement of out-of-pocket costs. So, without specific wording in the POA document allowing it, entitlement to compensation depends on making a court application and obtaining an order from a judge approving an amount of compensation. Taking compensation for acting as personal care attorney is therefore less common.

But so long as the POA document does not prohibit taking compensation, then it is possible, provided the attorney can justify what they are asking for. An attorney for personal care may apply for “fair and reasonable” compensation. The amount awarded is up to a judge to decide. What is fair and reasonable will depend on the nature and extent of services provided, and the attorney must be prepared to show details of their decision making, the value and outcome of their services, and at least estimate the time spent. The attorney’s services must have been necessary or desirable. The amount claimed cannot be disproportionate with the incapable persons’ financial means.

The expectation is that the attorney is acting altruistically, and is not motivated by compensation, especially if they are a child of the incapable person. The attorney is a substitute decision maker, and is not expected to directly act as the primary caregiver, or to be compensated as such. The court’s words in Childs v Childs, 2015 ONSC 4036 illustrate this:

“[33]          A child should not be paid to care for an ailing mother. Eileen Childs was not paid for raising her four children.

[34]      [The attorney, Caroline, who was a live-in caregiver for her elderly mother with dementia] indicates that she provided the care with no expectation of payment and she would do so into the future, even if not paid.  This is commendable. It is the way it should be. … That is what children are owed and deserve and are entitled to from their parents and parents are owed and deserve and are entitled to from the children.

[36]      There is no evidence before the court of any sacrifice made by her or loss suffered to undertake the care of her mother, for example, she left the job or she left a happy established life in England. Such factors are traditionally important considerations … .  This is not a case where the child’s position is that she will not or cannot afford to undertake the care of her mother unless she is paid.

[39]      …the self-satisfaction in knowing that she has done the right thing really should be enough for Caroline.

[45]            With respect to the compensation for Caroline as guardian of the personal care of Eileen Childs, that is a distinct issue from the direct caregiving that has taken place to date.

[46]            Going forward as guardian of her mother's personal care, Caroline's role is as the manager of personal care rather than the primary personal care attendant.  There are sufficient assets available to permit proper homecare to be provided for Eileen Childs in her home. Caroline will have to manage accessing the proper services and care givers and she should do so to provide fully for the best interests of her mother.”

Caroline asked for $133,000 to date, and $53,600 per year going forward. The court found that it was fair and reasonable to award her $25,000 in recognition of her efforts in the past 2 ½ years, and $500 per month going forward, along with room and board she had at her mother’s home, and reimbursement of out-of-pocket costs incurred on her mother's behalf.

On the other hand, in Daniel Estate (Re), 2019 ONSC 2790, the attorneys were neighbors and friends of multi-millionaire elderly couple Isabel and Wayne Daniel, and assisted them for years, “far beyond what anyone would reasonably expect from a friend and neighbour. In many ways, Linda and Ted acted like loyal and dutiful family members”. Isabel survived her husband Wayne, and she remained mentally sharp, though she required assisted living. She was the one who suggested that the attorneys apply for compensation, and she was agreeable to the amount proposed. The judge also noted the incapable couple’s substantial financial means. Therefore, the court found that the requested compensation of $135,462.15 for about 6 years was “reasonable and proportionate in the circumstances”.

The Takeaway

These are only some of the considerations that personal care attorneys should be mindful of when acting. It can be a demanding, time-consuming, and often unrewarding role, and advice is beneficial. Granting a Power of Attorney for Personal Care should not be done lightly. Not only are some healthcare decisions difficult to make, but it can be a challenge to draw the line between being a “manager of personal care” and a “care attendant”, to keep supportive family and friends in the loop, and to ensure the incapable person’s best interests are at the forefront.

If you are an Attorney seeking guidance on your duties or an individual considering making a Power of Attorney, please reach out to myself, Manda Ivezic (mivezic@sorbaralaw.com).