Preparing a PoA for Personal Care

Mitch Childs knows from experience that, like his clients, you’re reluctant about drafting a will — that includes a living will, also known as a continuing power of attorney for personal care.

Childs, who holds an elder planning designation and works with Freedom 55 Financial in Owen Sound, Ont., recounts the case of an elderly woman who had lost the ability to look after herself and was living in a nursing home.

While she had given her husband authority over her financial affairs through a conventional power of attorney (PoA), she hadn’t designated anyone to take charge of her personal care. When the husband died unexpectedly following a heart attack, the wife and her children were left in limbo. The kids didn’t have legal authority to instruct the nursing home on how to look after their mother, nor were they able to access her savings to pay the bills.

“For almost two years, the kids had to pay out of their own pockets,” says Childs. “They went to a lawyer, but it took two years to get a management plan before the courts to get them named as trustees.”

Conflicts over personal care can get uglier. In 2013 the Supreme Court of Canada weighed in on a battle between the family of a man in a vegetative state due to a car accident, and physicians at the Sunnybrook Health Centre in Toronto.

The doctors planned to discontinue life support, but the man’s family, who were devout Muslims, insisted he had minimal consciousness, and went to court to fight that decision.

The man hadn’t left instructions on what should be done if he was incapacitated, and the Court sided with the family.

Legal language

If the people in both cases had prepared a PoA for personal care while still capable, the disputes could’ve been avoided. However, a PoA doesn’t always resolve the legal crises that may arise when someone becomes incapacitated.

To address that legal black hole, many provinces have passed legislation that recognizes PoAs for personal care (also known as directives or representation agreements). They have supplanted the traditional, but legally informal, living wills.

However, in addition to preparing a PoA directive, make your wishes known to your attorney and healthcare providers. Many people do this by including living will clauses, whereby you can instruct physicians and family members to discontinue life-sustaining procedures or take all possible measures to sustain life, says Elaine Blades, director of fiduciary services at Scotia Private Client Group in Toronto.

“The value of including these wishes in a personal care power of attorney is that where the grantor of the power has made his or her wishes known, the attorney is required to provide instructions in accordance with these wishes,” she explains.

When creating a directive, ask yourself:

• Who is best positioned to step in as the attorney?
• How can my family and advisor ensure that medical practitioners have access to the directive?
• What are the precise meanings of key phrases such as “heroic measures,” which frequently come up in discussions about end-of-life care?

For instance, many people often say they don’t want to be subject to highly intrusive efforts to keep them alive in desperate circumstances (e.g., the use of feeding tubes, artificial ventilators and other medical interventions). But capturing those broad desires in legal language requires precision, as well as the participation of family members, medical practitioners and designated attorneys.

“There have been some cases about what it means to take heroic measures or what ‘suffering’ means,” observes Toronto estate litigator Eric Hoffstein, a partner with Minden Gross LLP. Such phrases, he adds, are often used in form documents or power-of-attorney kits, but have no legal meaning.

In Quebec, courts play a direct role in adjudicating and signing off on directives. Dan Derhy, a Montreal-based notary and lawyer at Derhy Trusts and Estates, says the law requires medical directives, as well as incapacity mandates, be vetted by a provincial court. The process can take up to six months. “In practice, the doctor has the last word on medical directives.”

That kind of judicial oversight doesn’t exist in other provinces, which means it falls to you, your health care providers and your family members to provide direction to medical professionals. Childs notes documents have evolved and are more detailed, but he urges you to think carefully about those details because certain medical situations and the broader health context may create ambiguous outcomes.

For instance, one couple told him they both wanted a DNR order in their directives should they suffer a heart attack. The wife had experienced years of ill health and multiple recurrences of cancer, so the DNR order made sense.

But the husband was in good health, so Childs reminded him that he’d likely recover in the event of a moderate attack, and would be able to enjoy many years with his grandchildren. The man took his advice.

Make your words count

Choose attorneys who will carry out instructions without compromising their own beliefs. For instance, Hoffstein’s seen cases where children don’t share their parent’s religious views, so the parent may have to select a third-party attorney.

Hoffstein’s approach is to avoid legally imprecise descriptions of a person’s state. Rather, he says, the directive can rule out specific types of medical interventions. And it can also state you don’t want to undergo life-prolonging procedures unless they result in certain quality-of-life thresholds, such as the ability to take food orally, or engage socially with others.

But, he adds, “I don’t think there’s any perfect language.”

Christine Van Cauwenberghe, assistant vice president of tax and estate planning for Investors Group in Winnipeg, agrees. She advises you have your family physician review the document and provide input on whether the instructions make sense medically.

“You don’t want to have a situation where you lose capacity and go to the hospital, but the hospital says they don’t know what [the directive] means.”

Also, add language that describes how family members and caregivers determine whether you no longer have the mental capacity to make your own choices. In the case of a long-term degenerative illness, for example, that threshold should be clear.

To avoid family disputes, the care directive can state the PoA comes into effect only if there’s been a third-party assessment by the family doctor or certified capacity assessor.