When a person loses the ability to make decisions, many things in their daily life cannot be done.
For instance, a person may no longer be able to pay bills, cash out investments as per their retirement plan, or sell their house to move into a care facility. No one else can make these decisions. There is no automatic right for a spouse, partner or child to take over these decisions. Therefore, it is a very good idea to plan for the time when mental competence will be an issue.
One option is to appoint an attorney. The person giving away their decision-making power is called the “grantor.” There are two types of attorneys:
- attorneys for property – the legal document is called a Continuing Power of Attorney for Property;
- attorneys for personal care – the legal document is called a Power of Attorney for Personal Care.
By appointing an attorney for property and/or personal care, the dementia patient actively chooses the person he or she believes will make decisions that they would have made for themselves. The attorney is expected to place him or herself in the incapable person’s “shoes” and make decisions from that perspective, so it is important to give very serious thought on whom to appoint.
There is no automatic right for a spouse, partner or child to take over these decisions.
The document may also include:
- a date when the power is effective or when it ends (for example, if you go on a long trip you may want to appoint someone to manage your rental property during that time);
- no date, but a circumstance (usually the grantor’s mental incapacity) when the power becomes effective;
- the name of a person who should assess the grantor’s incapacity before the power can be effective;
- a list of issues over which the appointed attorney has decision-making power;
- wishes and instructions that relate to any of the decisions that the attorney will be asked to address.
People typically draw up power of attorney documents together with a will. However, often they do not tell their appointed attorneys or their family about this. If someone loses their capacity for certain decisions, it is always a good idea to check with their lawyer if these documents were created.
While attorneys are appointed “privately” by an individual and, to a point, their responsibilities are detailed in the document itself, they are still subject to the law. Their duties and responsibilities are guided by the Substitute Decisions Act (“SDA”).
Personal Care Decisions
Who can be an Attorney for Personal Care?
Attorneys for personal care must be at least 16 years old. The grantor can appoint anyone – a relative or a friend. Often lawyers are asked if a family doctor can be an attorney; this is not possible. Anyone who is paid to provide health care or residential, social, training or support services cannot be appointed. However, exceptions exist, including the person’s spouse, partner or relative.
When does a Personal Care Attorney Act?
The first thing to do is to look at the power of attorney document. It will either:
- state that it is effective upon the grantor’s incapacity –> the attorney decides if the grantor has capacity; or
- state that the grantor’s incapacity must be confirmed –> a capacity assessor decides; or
- state that it is effective upon the grantor’s incapacity as determined by a specific person –> the specific person determines capacity.
Some documents state that an attorney may force the person to undergo a capacity assessment. Before taking that kind of action, an attorney should consult with a lawyer.
What are an Attorney’s Duties?
First, the attorney must explain their powers and duties to the grantor, and explain that the power has been enacted.
The attorney’s powers are specified in the document. Personal care includes: health care, shelter, nutrition, hygiene, clothing and safety. A grantor may give an attorney power over all of these areas, only some of these areas, or name different attorneys for specific types of decisions. Health care and admission to long term care is treated differently that all other personal care areas. Even if an attorney has power over all personal care decisions including health care, according to the law, there is a specific list of decision-makers that doctors must follow; an attorney is second on that list.
An attorney should be prepared to present the document to anyone who needs to see it, including doctors, Community Care Access Centres, and long-term care facilities.
The attorney must encourage the incapable person to participate in decisions. The attorney must maintain the person’s relationships with supportive family, friends and caregivers and consult with them from time to time.
They must maintain the person’s independence as much as possible and must choose the least restrictive course of action. They cannot force the incapable person to agree with the decisions taken. For instance, the person should not be forced to stop going to activities they enjoy, have Meals on Wheels instead of home cooking, or change their doctor simply because it may be easier for the attorney.
It may surprise people that an attorney must keep a record of all decisions. The information to include in the record is:
- the reason for the decision;
- medical reports;
- persons consulted;
- the incapable person’s wishes when capable and later incapable wishes, if any; and
- the factors considered if the decision was based on best interests.
These records are to be kept confidential unless their disclosure is needed to make a decision or is court-ordered. The incapable person, their attorney for property, and the Public Guardian and Trustee must be shown these records upon request.
There are some decisions that an attorney or guardian cannot make. Generally, these relate to use of force or monitoring, or treatments that are unnecessary or research-based. An attorney or guardian faced with these issues should consult a lawyer.
How does a Personal Care Attorney make Decisions?
Decisions must be made diligently and in good faith.
The grantor’s wishes that were made when he or she was capable must be followed, if they apply to the circumstances. Attorneys must try to find out if such wishes or instructions exist.
Later wishes that were made while capable take precedence over earlier wishes.
If there are no known wishes that apply to the situation, the attorney makes the decision based on the grantor’s best interests. Best interests means considering the grantor’s values and beliefs; current wishes (i.e. while incapable); whether the decision is likely to improve/prevent worsening of the condition or reduce the rate of progression; and whether the benefit outweighs the risk of harm compared to another choice.
What about Guidance?
Sometimes it may be difficult for an attorney to interpret the grantor’s wishes. Sometimes the attorney does not think the grantor would have followed a wish if they had known specific facts. Attorneys may apply to the Consent and Capacity Board for direction or to depart from a known wish.
Who may be an Attorney for Property?
Attorneys of property must be at least 18 years old. There are no other restrictions on who may be appointed an attorney for property. However, certain people cannot witness the document, including the grantor’s spouse or partner; the attorney’s spouse or partner; the grantor’s child, anyone subject to a guardianship and anyone under 18 years of age.
When do they Act?
The instructions in the power of attorney must be followed, same as for a power of attorney for personal care, above.
What are the Duties of an Attorney for Property?
The attorney must explain to the person, to the extent that the person can understand, that the power has been enacted. They must explain what this means, and explain their powers and responsibilities.
The attorney informs anyone who has financial dealings with the incapable person that they have taken over managing their property. The attorney should not put assets in joint names or into their own name. The property is still owned by the incapable person.
The grantor’s will must be found and the attorney should not sell or give away any property that is a gift in the will. Property can only be sold if it is strictly necessary for the incapable person’s benefit during their lifetime. It is best to consult with a lawyer.
An attorney has the power to do anything the grantor could do if capable except to make a will. Because of this wide power, they are considered fiduciaries. This means they must act diligently, honesty, with integrity and in good faith for the incapable person’s benefit. For further clarification, being a fiduciary means the grantor’s assets are held in trust and cannot be used for the attorney’s personal use unless authorized by law.
Fiduciary obligations include a duty to keep accounts which must be produced when requested. The information to be included is in the regulations to the Substitute Decisions Act.
The standard that an attorney will be held to in making financial decisions depends on whether they are paid. If unpaid, they must make decisions with the same careful judgment they would use in making decisions for themselves. If paid, they must apply the same skill, care and diligence expected of a person who is in the business of managing property.
Attorneys for property are personally liable for any losses if they act improperly. A defense to this is if the attorney acted honestly, diligently and reasonably. But only a court can decide to relieve part or all of the liability.
How do Property Attorneys Make Decisions?
An attorney must encourage the incapable person to participate as best they can in decision-making. They must foster relationships with the person’s supportive family, friends and caregivers and consult with them from time to time.
There may be different attorneys for property and personal care. Property decision-makers must make financial decisions that support the personal care decisions.
The attorney is not always obliged to guard assets for the person’s beneficiaries under the will. For instance, it may be cheaper to put a person in long term care than provide 24-hour home care. However, if the person wants to stay at home and has assets to pay for it, the attorney should arrange it. The only way that a financial decision can override a personal care decision is if the negative consequences to the person’s assets would heavily outweigh the benefits of the personal care decision.
What do they pay for?
An attorney must pay for, in order:
- the support, education or care of the incapable person;
- the support, education or care of the incapable person’s dependants; and
- expenses required to satisfy any of the person’s legal obligations.
The value of the property, the accustomed standard of living, and the nature of the other legal obligations are factors to consider.
In addition, the attorney may make gifts or loans to the incapable person’s friends or relatives, as well as charitable gifts. If the person made an annual charitable donation this may be continued if affordable. These optional expenditures are subject to certain criteria under the law, which exist to ensure that the person is well provided for and that their property is not misused or exploited.
Duty of Confidentiality
Attorneys must keep the accounts and records confidential, unless their disclosure is needed to complete a transaction or is court-ordered. The records must be produced upon request to the incapable person, the person’s attorney for personal care, or the Public Guardian and Trustee.
Payment for Property Attorneys
Attorneys may be entitled to be paid and it is best to consult with a lawyer about this. If a paid attorney hires professionals to help the attorney in managing finances or property, those fees are not taken out of the person’s property but paid for personally by the attorney. In the final analysis, it is up to the attorney to decide whether to take compensation based on their duties and other factors.
It is very important that persons diagnosed with dementia or Alzheimer’s see a lawyer as soon as possible to make decisions on substitutes before they no longer have the capacity to do so.
Court Review of Accounts
A court may order a review of an attorney’s accounts, called “passing accounts.” Attorneys should be prepared to do so from the very beginning by keeping proper records. Any of the incapable person’s attorney for personal care, dependant, the Public Guardian and Trustee, a creditor, or any other person with court permission, may apply to have the attorney pass their accounts.
It is very important that persons diagnosed with dementia or Alzheimer’s see a lawyer as soon as possible to make decisions on substitutes before they no longer have the capacity to do so. Often these documents are drawn up together with a Will. However, even if a person no longer has capacity to change their Will, they may still have capacity to appoint attorneys. Careful thought must be given to family circumstances and who, in light of family dynamics, would be the most trustworthy persons to make decisions when they become incapable.
Acting as an attorney is a serious task with huge responsibilities. Attorneys for property are fiduciaries and may be exposed to liability. When different attorneys are appointed for different decisions, they have to work together. When they don’t, and someone believes the incapable person is suffering as a result, they may challenge the attorney’s decisions, ask the court to review the attorney’s accounts, apply for guardianship, or ask the Public Guardian and Trustee to take over.
Lastly, it is so very important for everyone to discuss their wishes with their attorneys, family and friends so that when capacity is lost, the person’s wishes can be honoured if possible.
PLEASE NOTE: The information provided in this article is for informational purposes only. It is general information and should not be taken to be a full and accurate discussion of the law on this topic, nor is it intended to be legal advice or to be relied upon as legal advice by the reader.
If you have questions about substitute decision making, you may contact the author:
Areta N. Lloyd
In Association With:
Elder Law Group
About the author