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Beyond the Basics: Inclusive POAPCs for 2SLGBTQ+ Clients

The things that affirm who we are matter deeply: the correct name on a medical chart, a familiar voice at our side, the ability to continue or adapt gender-affirming care. Everyday 2SLBGTQ+ people fight for these things in the face of systemic barriers and discrimination. But what happens when someone becomes unable to make their own personal care decisions? And how can we help ensure that what matters most is upheld when self-advocacy is no longer possible?

A thoughtfully prepared power of attorney for personal care (POAPC) is an essential legal tool. In addition to naming the person(s) you trust to make personal care decisions when you are mentally incapable of doing so, it can help ensure that your values, identity, and relationships are respected and protected.

What exactly is a POAPC?

A power of attorney for personal care is a legal document that allows you to appoint someone to make specific personal care decisions on your behalf, if you become mentally incapable. When you sign a POAPC, you are called the “grantor.” The person who you appoint to make decisions for you is called the “attorney for personal care.”

Personal care covers six areas:

  1. Health treatment
  2. Nutrition
  3. Shelter
  4. Clothing
  5. Hygiene
  6. Safety

In order to be mentally capable of making a personal care decision for yourself, you must be able to understand the information relevant to making a specific decision concerning your personal care and you must be able to appreciate the reasonably foreseeable consequences of that decision or lack thereof. A person’s capacity is time- task- and situation-specific, meaning it can change from day to day and from one type of decision to another. For example, someone may be capable of making decisions regarding one area of personal care but not another, which is why the authority of your attorney for personal care “switches on” only when you as the grantor are incapable of making a specific decision at a specific time.

Why a barebones POAPC may not be enough for 2SLGBTQ+ individuals

Even the most trusted attorney for personal care can face dilemmas a standard POAPC form will not anticipate: What if you suddenly reject long‑standing treatments and experience identity fluctuation in your incapacity? How should your attorney for personal care respond if a physician warns that continuing hormone therapy could undermine a cancer treatment? A generic POAPC will not equip your attorney for personal care with the specific guidance needed to handle situations like these.

Our firm understands that these important but difficult considerations are a vital component of the planning conversation.

Practical considerations for preparing your POAPC

Establish what matters most for you

Ask yourself what routines, practices, or connections make you feel like yourself. What aspects of your gender identity and expression are essential to your sense of dignity? Are there circumstances under which you might wish to stop a treatment or practice? And how should your substitute decision maker (SDM) interpret that during your incapacity? Who are the primary people of importance in your life you would want your attorney for personal care to consult when making decisions? These are deeply personal questions, and your answers can help shape a POAPC specific to your values.

Choosing your SDM

For many 2SLGBTQ+ people, the most trusted person to make decisions might not be a spouse or relative, but a friend or member of their chosen family. That is why it is important to name an SDM explicitly in a POAPC. If you do not have a POAPC and you become mentally incapable of making a personal care decision, the Health Care Consent Act sets out a default list of people who would be automatically authorized to make a decision on your behalf. You may not want the person ranked highest on that list—for example your parents or  sibling—to be your SDM. 

Test the fit: Have a candid conversation with your proposed SDM. Do they know about and understand your values, your identity, your community? Will they be prepared to assert your wishes in the face of challenges from relatives, health care providers, or personal care workers?

Equip them: Once you have chosen someone as your attorney for personal care, give them the tools to act confidently on your behalf. This includes your signed POAPC, names and contacts for your trusted healthcare providers, and any other written guidance you want them to rely on. We can also provide them with legal information about their rights and responsibilities as an attorney for personal care.

What you can include in your POAPC

While you cannot use a POAPC to consent to or refuse future treatments, and we do not have “advance health care directives” in Ontario, you can express your wishes to your attorney for personal care. These may include:

  • your preferred name and pronouns;
  • instructions about wardrobe, grooming, and presentation (makeup, facial hair, jewellery);
  • whether hormone therapy should be continued or paused if you lose mental capacity;
  • who you want, and do not want, at your bedside;
  • any cultural or spiritual practices that are meaningful to you, including from queer or trans communities of faith; and
  • living arrangements in affirming-care settings, such as long-term care homes with 2SLGBTQ+ cultural competency.

When prepared thoughtfully, a POAPC becomes a document that holds space for your identity, values, and voice, no matter what lies ahead.

How we can help

A POAPC can appoint a substitute decision maker while equipping them with clear guidance that is specific to your wishes, if the time comes for them to act.

Our firm is attuned to the unique perspectives and challenges that our 2SLGBTQ+ clients often face.

Planning early is a gift to yourself and your loved ones. If you are ready to begin or simply wish to explore what a POAPC could look like in your circumstances, we are here to help.