Estate Planning Essentials: Power of Attorney for Personal Care

Who Will Make Decisions About your Health and Daily Care If You Are Incapable?

Mary is hurrying to work and in her haste, she slips on an icy sidewalk. She is taken to the local hospital for assessment and doctors confirm she has sustained a traumatic head injury. Unfortunately, Mary is not able to stay conscious or fully appreciate her treatment options.  As she is mentally incapable of making decisions about her health and personal care, the doctors approach her friends and family. Several people voice opinions about what should be done. They disagree about what should be done, and hostility mounts as debates break out.  The doctors ask Mary’s family if she has a Power of Attorney for Personal Care; she doesn’t.

What is a Power of Attorney (POA) for Personal Care?

A Power of Attorney for Personal Care is a legal document that gives someone else the right to act on your behalf and make important decisions about your care if you are mentally incapable. It does not give someone sweeping power to make all decisions on your behalf, simply those you are unable to make yourself at a given point in time.

Decision-making is generally restricted to the following areas: health care, housing, safety, hygiene, clothing, and nutrition.  It is important to remember that a POA for Personal Care is separate and distinct from your Will and does not give anyone authority to deal with your property.  (For property, Mary would need a Power of Attorney for Property.)

When you don’t have a POA for Personal Care in an emergency situation, like Mary, a substitute-decision maker (SDM) will be appointed. The law outlines a list of SDM’s in priority sequence. 

Why shouldn’t you rely on the appointment of an SDM?

The person at the top of this list may not be the ideal candidate to make decisions on your behalf.  They may not want the responsibility, may not know you well, or you may want two or more people to make decisions together.  You can appoint more than one attorney, and also allocate decision-making authority as you see fit.

Taking the time to discuss these matters and record your wishes in a POA for Personal Care can significantly reduce stress for your loved ones and help resolve important questions about your preferences when you are incapable. In addition to appointing a decision maker, you can set out your wishes such as whether you want extreme measures taken to keep you alive and ensure your religious beliefs are respected.

In Mary’s case, a POA would be invaluable when deciding which treatment options to pursue. Mary could also make provisions for aftercare, for example, that she would like to have private nursing services in her home, where possible, rather than recovering in a public hospital. In any case, a lot of grief could have been avoided by having a pre-determined decision-maker.

Who can I appoint?

For personal care decisions, the person you appoint must be at least 16 years old. You cannot appoint someone who is mentally incapable themselves or someone you pay to provide health care, residential care or support services.

It is never too early to plan for the unexpected.

Talk to your lawyer about creating a Power of Attorney for personal care if you:

  • Want to exercise some control over the care you receive when you cannot effectively communicate your wishes
  • You want a specific person to make decisions on your behalf
  • You want to avoid having certain person make decisions on your behalf
  • You want guide your loved ones through decision-making during a difficult time
  • You have certain wishes or beliefs that will influence decisions about care or end-of-life care