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Should I make a power of attorney?

If you become mentally incapable of making decisions about your personal care, including your health care, someone must make them for you. This is your substitute decision-maker (SDM).

If you have a Power of Attorney for Personal Care, your attorney is your SDM.

Decisions about personal care

If you do not have a power of attorney and become mentally incapable of making decisions about your personal care:

  • someone could go to court and ask to become your Guardian of the Person, or
  • you might still be able to make a power of attorney if you are mentally capable of doing this. But this does not often happen.

Usually, your attorney decides if you are mentally capable to make decisions about your personal care.

But you can name someone in your power of attorney who must confirm that you are mentally incapable before your attorney starts making decisions.

This could be your doctor, another health professional, or a friend. Or you could say it must be a certain type of professional, such as a social worker, psychologist, or nurse.

If you do not say who will do this, a capacity assessor will decide. This is a health professional who is trained to assess if someone is mentally capable.

Decisions about health care

If you become mentally incapable of making decisions about your health care, your health-care providers must get the consent of your SDM before treating you.

Ontario’s Health Care Consent Act says who can be an SDM for some of these decisions. This includes decisions about health treatment, moving to a long‑term care home, and personal assistive services in a long-term care home or retirement home.

Who decides is based on this order:

  • your Guardian of the Person
  • your attorney
  • someone appointed by the Consent and Capacity Board
  • your spouse or partner
  • your parent or your child
  • your brother or sister
  • any other relative
  • the Office of the Public Guardian and Trustee

Your SDM must be:

  • at least 16 years old,
  • mentally capable,
  • available and willing to make decisions for you, and
  • not stopped from acting as your SDM by a court order or a separation agreement.

Advance care plans

Your power of attorney can include your wishes or instructions about personal care, including health care. These are often called advance care plans.

Your wishes might be to:

  • stay in your own home as long as possible
  • respect your religion when choosing food
  • let doctors use artificial life support

Your wishes are for your attorney or SDM to follow, not doctors or medical staff. And they must follow what the law calls your “last prior capable wish”. This might not be what is in your power of attorney.

After you make your power of attorney, you might decide something different. You could tell someone about your new wishes or put them it in writing.

If your attorney or SDM does not know your wishes, they must make decisions based on what is in your best interest. They must think about your values and beliefs, as well as any risks and benefits.

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