Who will protect your interests when you no longer can?

Finding an Attorney for Personal Care outside family and friends

In past blogs, we’ve discussed the importance of having a Power of Attorney for Property and a Power of Attorney for Personal Care. Without these documents in place, your loved ones will be faced with the long process of applying to court to become a guardian in the event you can no longer make any financial or health care decisions on your own.

Given how important these documents are, thoughtful consideration should be given to who your attorneys should be. However, in some cases there just isn’t someone available who can perform these roles.

So, what happens then?

In very rare circumstances, a statutory body can be appointed as attorney. In Ontario, for example, the Office of the Public Guardian and Trustee (the “PGT”) can be named as an attorney provided that they consent in writing before the Power of Attorney has been signed.

More commonly, however, when you don’t have someone who is able to act as your attorney for property, you can look outside your family and friends and appoint a third party. A trust company can be appointed in many cases. In some cases, members of your professional team, such as your accountant or your lawyer, may agree to act as well.

Finding a POA for personal care is more challenging

Finding an attorney for personal care can be a much more challenging process. These third parties are not always able to or available to act as your attorney for personal care.

Given the important and sensitive decisions that an attorney for personal care must make, someone who truly understands your wishes and values is crucial. You ideally want to appoint someone who understands your views on health care, or at the very least respects them. They need to be trustworthy, be able to make difficult decisions, and have familiarity with or are comfortable with dealing with health care professionals. On top of that, they need to be accessible in case of an emergency.

For these reasons, hiring a third party is typically not an option, and trust companies typically will not take on this role.

It should be noted that the Substitute Decisions Act, which sets out the rules in Ontario for Powers of Attorney, specifically states that an attorney for personal care cannot be someone who provides health care, residential, social, training or support services to the grantor for compensation (unless they are the spouse or a relative of the grantor).

So, what do you do if there is no one who can step up and act? As a last resort, like with an attorney for property, you are able to name the PGT as your attorney for personal care, provided you have their consent in writing before signing your document. These appointments are rare, however.

Consider neighbours, co-workers for POA for personal care

You may need to consider other persons for an attorney for personal care, perhaps a neighbour or a co-worker. In these cases, it is important to keep in mind that you can always appoint more than one attorney.

If the person you think would be the best choice for your attorney for personal care lives in a different jurisdiction, you may still want to consider appointing them along with someone local who you may not be as close with. This way, you have someone who knows and respects your wishes, but also someone who is able to attend to day-to-day issues that require physical attendance, and is also available in the case of an emergency.

Why “Letters of Wishes,” “Living Wills” are important

As well, when your attorney may not be someone within your close circle, the use of a Letter of Wishes or a Living Will are critical. Read our previous blogs:

“Letter of Wishes: Personal Care Matters” and
“The Many and Varied Uses of Letters of Wishes”
“Advance Care Planning”

If your attorney is not familiar with your thoughts on personal care, or what your general values are, expressing these wishes in a document for your attorney will be invaluable to them and provide important guidelines.

Unfortunately, outside of appointing the PGT, there is no ideal solution for whom to appoint as your attorney for personal care.

Given the intimate nature of the decisions an attorney for personal care may be asked to make, finding someone who would agree to act can be challenging. As our population continues to age and many of us live for extended periods of time with diminished capacity, the need for Powers of Attorney for personal care will only increase.

It will be interesting to see if there may be changes, such as court-supervised or licensed professional attorneys for personal care, which a few U.S. jurisdictions now have.

Stephanie Battista is a partner at O’Sullivan Estate Lawyers. She practices exclusively in estate and trust law, focusing on all aspects of estate planning and estate administration in order to provide clients with sound and helpful legal advice. She advises clients on their succession plan including wills, trusts, powers of attorney and domestic contracts. She also advises executors, trustees, and attorneys on their duties and obligations, and provides guidance through the complexities of the estate administration process as well as estate and trust accounting. This article originally appeared in the O’Sullivan Estate Lawyers blog. Used with permission.

Notes and Disclaimer

This article is the opinion of the writer and is meant to be general in nature, limited to the law of Ontario, Canada. It is not intended to provide specific personalized advice on any individual situation, including, without limitation, investment, financial, legal, accounting or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your particular circumstances.

Image: iStock.com/Drazen Zigic