My mother was in excruciating pain when I took her to the hospital. The nurse came in with some forms and asked if she wanted to sign a DNR – do not resuscitate – if her heart stopped. Apparently this is standard procedure because of her age. Moaning, my mom said, “Just let me die.” I said, “You can’t make her sign that in the condition she’s in.” I was told, “It’s not your call to make.”
You see, she did have a Power of Attorney for Personal Care. It was my brother, 1,400 kilometres away.
Fortunately, she came through her treatments ok, and now, several years later, she’s in pretty good health “for her age.”
It’s not pleasant to think that there could be a time when you’re unable to make certain crucial decisions for yourself. To prepare for this possibility, it’s a good idea to draw up Power of Attorney agreements granting another person, usually a family member or trusted friend, the legal authority to make decisions and act on your behalf.
Related: The pitfalls of naming your children co-executors
An Enduring Power of Attorney names someone to take care of your financial affairs should you become mentally incapacitated.
A Personal Care – or Medical Directive not only names someone to make your medical decisions for you, it can also outline end-of-life wishes if you can’t make those decisions yourself.
Estate law is provincially regulated and rules and terminology differ.
Power of Attorney
Many people complete a Power of Attorney form at their financial institution, but this only authorizes a person to manage accounts held there. It’s better to prepare an enduring Power of Attorney for Property. POA’s can be broad or very specific. These are your options:
- Immediate – Your attorney can have control over your assets immediately and you can both write cheques, sign documents, etc. This power ends at death or mental incapacity.
- Specific – This is used only for specified transactions (e.g. sale of home), or a limited time period (e.g. while you are out of the country).
- Continuous – Your named attorney can act and make decisions both before and after mental incapacity.
- Springing – The power to act only comes after mental incapacity.
Medical Directive
A Power of Attorney for Personal Care, or Medical Directive is like a living will that allows you to name someone to make health care decisions for you if you can’t make them yourself due illness or injury. It comes into effect after a capacity assessment. This determines whether or not you have the ability to make your own decisions.
However, just because someone disagrees with a decision you make (for example, you might decide you no longer want to take a certain medication or treatment), it doesn’t mean you have lost the ability to make the decision, as long as you fully understand the impact of that decision.
What happens if you don’t have a Medical Directive
Each province has a list of contact people who would be individually asked to be your Temporary Substitute Decision Maker.
One person is chosen from the list, usually in this order:
- Spouse (married, common-law)
- Child (age varies by province, e.g. 16 in Ontario, 19 in BC)
- Parent
- Sibling
- Grandparent
- Grandchild
- Other relative
Some provinces allow others, such as a care giver or close friend, but other provinces are more restrictive.
If you don’t like the order, or you have many adult children, or you would rather have your friend rather than your brother, for example, to be asked to make health care decisions for you, you can choose a person by naming him or her as your representative. This becomes a legally binding agreement.
Final thoughts
All adults should do advanced care planning to make their wishes and decisions known for their future health care treatment. Choose someone you trust and make sure this person is willing to take on this responsibility.
Related: So you’ve been asked to be an executor
It’s a good way to make sure your wishes will be respected and helps your decision maker to make difficult choices because they know they are following your wishes. You don’t want arguments at your bedside.
