On April 3, 1995, the Ontario Government implemented many changes to the law regarding the financial and personal affairs of mentally incapable persons. This occurred when four related acts which include the Substitute Decisions Act, were proclaimed by the Government. These changes affect the making and using of Powers of Attorney. The purpose of this article is to discuss the new law as it relates to Powers of Attorney.
What is a Power of Attorney?
A Power of Attorney (sometimes referred to in this article as the “PA”) allows a person (the grantor) to give to another person (the attorney) the power to make certain decisions on behalf of the grantor. Though the term “attorney” implies a lawyer, a lawyer need not be the attorney. A Power of Attorney does not prevent the grantor from continuing to act for him or herself if he or she wishes. The changes in the law will now allow for two types of Powers of Attorney. “The Continuing Power of Attorney for Property” (sometimes referred to in this article as “CPAP”) like the old Power of Attorney may deal with financial matters before and after a person is mentally incapacitated. This Power of Attorney will allow the attorney to do on the grantor’s behalf anything with respect to any type of asset that the grantor could do if capable except make a will. “The Power of Attorney for Personal Care” (sometimes referred to in this article as “PCPA” ) may deal with personal and medical decisions if one is mentally incapacitated. (In this article when I am dealing with either type I will simply refer to them as Powers of Attorney). The Personal Care Power of Attorney may also have a direction like a living will whereby one would direct that life support systems not be used if there is no reasonable prospect of recovery. A personal care power of attorney was not allowed under the previous law.
Although more sophisticated and different in form the new Continuing Power of Attorney for Property is essentially the same as the old Power of Attorney. There is no truth to the rumour that these older Powers of Attorney are invalid under the new law. They will always be valid. They are just not as sophisticated as they do not address some of the issues that the new legislation concerns itself with.
Why have a Power of Attorney?
As the Ontario Government’s marketing slogan for promoting Powers of Attorney states “You Decide Who Decides”. Powers of Attorney allow one to appoint a designated individual or individuals to make the financial and now personal decisions that have to be made if that person becomes mentally incompetent and can not manage their personal affairs. Without Powers of Attorney either the government or a person you would not have chosen may be appointed to make those decisions. The Powers of Attorney allow one to make specific directions about finances, accommodations, and health issues including the important life support decision. Without Powers of Attorney perhaps different decisions will be made. Having Powers of Attorney ensures that government intervention is minimal. Legal and emotional costs are also reduced. I believe a misconception about the new law is the belief that the Government wants to control everyone’s life and wants to be involved in the decision making process of incompetent people. This is simply not true. A major change in the law will make it easier for the government to hand over to the appropriate person the job of managing the mentally incompetent’s financial affairs if that person being a patient in a psychiatric facility is certified unable to manage his or her own property. Unlike the present law, under the new law, this can be done without the need of a court order. A court order is still needed to be appointed for personal care decisions. A court order is also needed where there is no Continuing Power of Attorney for Property if the person is not capable of managing his or her own affairs and is not in a psychiatric facility.