Michelle Stephenson, Summer Law Student
Deciding how best to care for elderly or mentally incapable loved ones is a problem many people face at some point in their lives. What makes this situation more difficult is when people have differing and competing ideas about what is best for the person, and when there is no clear authority on who gets final say.
Unfortunately, current provincial laws on how these decisions are to be made have been found to be poorly understood by the public. This has led to the Law Commission of Ontario launching public consultations for people to give feedback and recommendations to be taken into consideration in reforming the law.
Until these reforms come into play, however, the simplest way to ensure that things go (relatively) smoothly if you or a loved one becomes incapacitated, is to have a “Power of Attorney for Personal Care” (a “POA”) completed in advance, just in case. This allows you to dictate who, if something unfortunate occurs, can make decisions on your behalf.
(A Power of Attorney for Personal Care, which will be discussed in this article, differs from a Continuing Power of Attorney for Property which applies to an individual’s financial, rather than medical, decisions. For information on obtaining both of these tools, please click here. )
Creating a Power of Attorney for Personal Care is very easy to do, but it has become evident that the accessibility of this, combined with gaps in knowledge, has led to some problems. For example, some people may not understand that the person closest to them might not be the most knowledgeable and capable of fulfilling this important role. Additionally, the province does not currently monitor the appointment or decisions of these substitute decisions-makers. This creates the potential for abuse, as well as for the appointment of under-informed or even unaware substitute decision-makers.
There are also significant problems where a POA has not been created before an individual becomes incapable. In the absence of a POA, there is a hierarchy of who gets to make decisions. First in line is the spouse or partner, followed by children (over 16) or parents, then siblings, then other relatives, then the Office of the Public Guardian and Trustee.
The issue with leaving a decision-maker to be appointed by default is that it can leave multiple people equally in control (for example multiple adult children) who may not see eye-to-eye on what is best. This can lead to ugly legal battles where the Office of the Public Guardian and Trustee may have to make decisions. These drawn-out family disputes are one of the issues that the Law Commission’s project hopes to target.
Additionally, in the absence of a POA, someone may apply to be appointed as a substitute decision-maker. All of this, however, is more time-consuming, emotionally stressful, and the end result may be less in line with the incapable person’s wishes, than if they had appointed someone themselves beforehand.
With any luck, and with feedback from the public, the Law Commission will have some success addressing the issues of lack of information, abuse, and dispute resolution, by reforming the province’s eldercare laws.
For information on how you can obtain a Power of Attorney for Personal Care, please see:
For information on the Law Commission of Ontario’s project, see: