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Many of you have a power of attorney for personal care if you live in Ontario, or a similar document if you reside in another jurisdiction. Its purpose is to appoint one or more persons to make personal care decisions on your behalf when you no longer have the capacity to do so.
Personal care decisions are the non-financial ones: Your health and medical decisions are the first that come to mind, but they also include other personal care matters, such as your housing, nutrition, hygiene, clothing, and safety.
It is common to provide a direction to your attorneys for personal care with regards to end-of-life matters, such as whether or not to use “heroic” measures. As well, you should consider whether or not you wish to have medical assistance in dying if you qualify for it under Canadian legislation. Although its specific procedures need to be followed, including providing consent at the relevant time, you may want to express your wish that your attorneys make arrangements to start the process and facilitate it, which is of key importance if you are not easily able to do so because of your health and medical condition.
Most directions to attorneys for personal care start and finish with end-of-life issues. It is my view that guidelines to your attorneys for personal care should be much more comprehensive and extensive. Simply appointing decision-makers, but then not providing directions on key issues of importance is not adequate to ensure your wishes are carried out and that your well-being is safe-guarded. As well, detailed guidelines on important issues can help to avoid disputes among family members, as your attorneys can always point to your letter of wishes to support their decisions.
A direction or letter of wishes to your attorneys has legal force. Under the Ontario Substitute Decisions Act, which provides the legal framework for substitute decision-making for attorneys for personal care, as well as for other substitute decision-makers, your attorneys are legally obligated to carry out your wishes as long as they are applicable, unless it is impossible to do so, in which case your attorneys must make decisions in your best interests.
For a detailed discussion with regards to powers of attorney, substitute decision-making, and personal care matters, please see our Advisories “Planning for Incapacity Using a Power of Attorney” and “Advance Care Planning.”
Some of the issues that can be addressed in preparing your direction or letter of wishes are as follows.
Where do you wish to live? Many of us are concerned for ourselves (but as well for our family members) about whether to continue to live in our familiar home setting and “age in place,” with additional support when needed, as opposed to residing in an institutional setting, such as a retirement or nursing home. If there is a strong preference for “aging in place,” it is important to set this down. If the time comes when it may not be possible to maintain you in your home, including because adequate medical care cannot be provided in a home setting, your direction or letter of wishes can provide guidance on the place you would like to reside in, and what you would like your living arrangements to be. For example, you might want to stress it should be home-like, permit you as much privacy and autonomy as possible, and have high-quality care, and if appropriate or applicable, that financial considerations should not be a bar.
Family disputes sometimes arise concerning the choice of a retirement home or nursing home, cost and geographic location being two common issues. Having your written guidance can assist your attorney in making and supporting their decision, and it would be taken into account by a court should the matter proceed to a court application if there is a serious family disagreement regarding your care.
It is also important to stipulate that you would like to continue to live at a standard of living that is consistent with what you have always enjoyed, as long as it is reasonable to do so, for example, expenditures for travel, outings, personal grooming, and wardrobe based on the level you are used to.
You may have particular wishes unique to your situation that you would like to stipulate, such as special dietary preferences, types of special clothing and grooming and beauty care services.
As well, you might like to include a provision that if your estate is depleted in ensuring your proper care in accordance with your guidelines, that is what you wish, and that other persons, including the beneficiaries of your estate, should not interfere with your attorney carrying out your wishes.
Given the importance of your wishes being carried out, it makes sense when composing your direction or letter of wishes to think about what is most important to you, and putting it in writing as a priority in your estate planning. Your attorneys will appreciate these guidelines in carrying out their role, you can better ensure your quality of life, and have additional peace of mind by having set out your wishes.
I envisage that going forward, incapacity planning will become more developed and have more priority, given demographics and the extended time frame in which more of us will live with diminished capacity. As a result, more emphasis will be placed on creating helpful, detailed, and carefully drafted directions and letters of wishes to your attorneys for personal care, which reflect your unique situation and wishes.
Margaret O’Sullivan is Managing Partner of the Toronto-based trusts and estates law firm O’Sullivan Estate Lawyers. She practices exclusively in the areas of estate planning, estate litigation, advising executors, trustees and beneficiaries, and administration of trusts and estates. This article originally appeared in the O’Sullivan Estate Lawyers blog. Used with permission.
Notes and Disclaimer
Content © 2022 by O’Sullivan Estate Lawyers LLP. All rights reserved. Reproduction in whole or in part by any means without prior written permission is prohibited.
The foregoing is for general information purposes only and is the opinion of the writer. It is not intended to provide specific personalized advice on any individual situation, including, without limitation, investment, financial, legal, accounting or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your particular circumstances.
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