How and why do you appoint a substitute decision-maker?

To give someone power to act on your behalf, you must appoint them to be your substitute decision-maker in writing, through a document called a Power of Attorney for Personal Care.

The person you appoint is called your attorney for personal care - this is a specific type of substitute decision-maker.You can appoint more than one substitute decision-maker, and you can direct them to make decisions together or separately.

If you do not appoint an attorney for personal care, your health care providers must get consent or refusal of consent for treatment from the first person available to act for you from a hierarchy of substitute decision-makers set out by law. For more information on the order that health care providers must follow to identify that individual click here. Not only may this person not be your first choice of person to act on your behalf, this person only has the authority to make decisions related to your health care, admission to a long-term care facility, and the personal assistance services you receive in a long-term care facility.

Therefore, it is important to designate a substitute decision-maker through a Power of Attorney for Personal Care to ensure you have a person of your choice making decisions about both your health care and other aspects of your personal care.

What is a Power of Attorney for Personal Care?

A Power of Attorney for Personal Care is a document through which you appoint your substitute decision-maker and give them the power to make decisions about all aspects of your personal care, unless you specify otherwise. This includes your health care, shelter, clothing, nutrition, hygiene, and personal safety.

A Power of Attorney for Personal Care may only be used if you become incapable of making a particular decision. You continue to make your own decisions until found incapable.

To be valid, a Power of Attorney for Personal Care must be signed and dated by you. Two witnesses must watch you do this, then they must co-sign the document in your presence, and in the presence of each other. At the time that you sign it, you must be able to understand what the document means and that the person you name as your substitute decision-maker will make decisions for you when you are not capable for a particular personal care decision. The person you appoint as substitute decision-maker cannot act as a witness, neither can his or her spouse or partner. As well, witnesses cannot be under 18 years old and cannot be your spouse, partner or child.

If you wish, you can appoint more than one attorney for personal care. For example, you may want your brother and your daughter to make decisions together on your behalf. In that case, all your attorneys for personal care must agree before a decision can be made on your behalf, unless you state in the document that they can make decisions separately.

You may also appoint different attorneys to make different kinds of personal care decisions-for example, one attorney for personal care could make decisions about shelter, another about health care, and so on.

Consider also naming another person to act as an alternate or back-up substitute decision-maker to ensure you have a back-up substitute decision-maker of your choosing should the first person you named as your attorney for personal care be unable to act for you. For example, an alternate acting as your substitute decision-maker may relieve your first choice, perhaps a spouse or partner, of the pressure of making necessary care decisions in a time of emotional stress.

As long as you remain capable, you can execute a new Power of Attorney for Personal Care, revoking or changing who you have named as your attorney for personal care in a previous document.

What is an "advance care directive" or "living will" and how does it differ from a Power of Attorney for Personal Care?

An "advance care directive" or "living will" is used to document your care wishes so your substitute decision-maker can refer to it when making care decisions for you in the future, if and when you can't make those decisions for yourself. It may also help your substitute decision-maker in her/his future dealings with your care providers.

A Power of Attorney for Personal Care may be used for the same purpose as an "advance care directive" or "living will" but it also appoints your substitute decision-maker. If you do a living will and use it to name someone as your substitute decision-maker, then it may be a Power of Attorney for Personal Care if it meets the legal requirements - that is, that it be in writing, signed and dated by you, and witnessed by two people.

Does a lawyer need to prepare any advance care planning documents?

You do not need a lawyer to prepare any documents related to advance care planning, whether in the form of a Power of Attorney for Personal Care or an "advance care directive". However, a lawyer may be helpful in explaining your options and can help you prepare such documents if you wish. Some of the important people to involve in advance care planning are your loved ones, your physicians and other key care providers.

Do advance care planning documents require a special form?

No special form is necessary to do advance care planning, although Power of Attorney for Personal Care forms are available free of charge from the Office of the Public Guardian and Trustee. You may prefer to use one of the forms or kits available for advance care planning.

Does an Attorney for Personal Care also have authority over finances and personal property?

Your Attorney for Personal Care can deal only with your personal care decisions. Of course, those decisions may have to take your financial means into account.

If you wish to give someone the authority to make decisions about your finances, home and possessions, you must use a different legal document called a Continuing Power of Attorney for Property (also available free of charge from the Office of the Public Guardian and Trustee).