Powers of Attorney for Personal Care Part 1 – The Knowledge Deficit
In the early weeks of the pandemic I received three troubling inquiries. All were about the actions of an attorney for personal care.1 In each case, the person calling me was concerned about decisions an attorney for personal care was making for another family member.
In one case, a woman I’ll call Joyce2 was concerned about her sister Ruth. Ruth’s daughter Maureen had placed her in a specific long term care home where Ruth had worked as a nurse for a few years, back in the 1970s. Joyce said Ruth had expressly said she never wanted to be placed in that home. Because of the pandemic visitors were not allowed in the home. Joyce had begged Maureen to acquire a phone for Ruth so that they could keep in touch. Joyce offered to pay for the phone. Maureen refused.
In another case, Adele told me that her half-brother Arnold had placed their father in a long term care home and refused to tell her which one he was in. Adele had called the Local Health Integration Network, which handles admissions to long term care, but she was told she could not have any information about the whereabouts of her father for privacy reasons. Arnold would not answer her calls.
A third case involved Jim, whose mother Edna had a telephone in her suite in a retirement home. Edna, who always has a personal support worker by her side, needed help to facilitate a Facetime call. Jim’s sister Helen was their mother’s attorney for personal care and she instructed the personal support workers not to answer any calls of any kind from anyone after 6:00 p.m., so that Edna could have a quiet evening and get a good night’s sleep. Jim worked full time in an essential service and it was hard for him to contact Edna earlier in the day.
In each of these cases it seems that the attorney for personal care was acting contrary to their responsibilities and outside the scope of their decision making “authority”. This is not a new, pandemic-induced phenomenon. I have seen it happening since the introduction of powers of attorney for personal care in Ontario in 1995. In the best of times there are few remedies available to an individual whose attorney for personal care is acting improperly or to a family member who disagrees with the decisions of the attorney. Some of these remedies involve trying to educate the persons providing care about what an attorney can and cannot decide. In a crisis, that kind of conversation is not going to happen.
Powers of attorney for personal care are not well understood by the persons who sign them, the persons who act pursuant to them (called an attorney), their lawyers and other professional advisors, doctors, nurses, other health practitioners, or administrators and other staff at hospitals, long-term care homes, retirement homes or other institutions. This knowledge deficit can result in conflict, confusion and a confounding of the grantor’s intention and expectations. And harm.
Powers of attorney for personal care are tools designed by lawmakers to be used by individuals to exercise personal autonomy.
But they’re often relied upon or utilized in messy, confusing, sudden situations of crisis. Family members are standing by with questions and opinions, rushed professionals are asking for decisions to be made and institutions have rules to enforce with little guidance to offer the attorney.
The primary purpose of a power of attorney for personal care is to give the grantor the opportunity to choose who will make decisions about personal care should he or she be incapable of making a specific personal care decision.
A power of attorney for personal care can also be used to express how the grantor wants decisions to be made, about which I will write more in a future blog.
An attorney for personal care has legal duties and responsibilities. In fulfilling these, the attorney should try not to act beyond their mandate. When an attorney does act beyond their mandate, this can amount to a serious infringement upon the personal autonomy of the grantor.
For example, a person experiencing incapacity or diminishing capacity is at risk of social isolation. During the current pandemic, lockdowns, restrictions on movement within as well as in and out of care facilities and retirement homes, and advice from public authorities to stay at home, have imposed serious limits on the personal autonomy of many, and increased their risk of social isolation.
In all of the examples above the attorney for personal care is almost certainly failing in their duties. An attorney who erroneously believes that they have authority to make decisions about restricting the grantor’s social relationships may make decisions that exacerbate the grantor’s social isolation. And institutions, and the individuals who work in them, who allow an attorney to overstep in their decision making because they don’t know any better are contributing to the harm.
In the chaos that has prevailed in too many long term care homes during the pandemic, some may say that with COVID-19 spreading and residents dying, social isolation is a low priority problem. Indeed, social isolation has been exacerbated by government policies and management practices – deliberate choices made in attempts to deal with the situation. But there are multiple ways a person can suffer, and families and friends of residents in long term care and retirement homes know (as do other frontline caregivers) that loneliness is a profound one. Can telephone and video calls reverse the harm of social isolation? Not entirely, of course, but experts in elder care encourage their use.
Powers of attorney for personal care are misunderstood and misused. Over an upcoming series of blogs my purpose is to explain powers of attorney for personal care – what they are, how they fit into treatment decision making and more generally decision making about personal care, what an attorney should do, what an attorney can’t do, how powers of attorney should and should not be drafted.
Some of this material springs from a paper I presented at the Law Society of Ontario’s 23rd Estates and Trusts Summit on October 8, 2020, and there will also be new material.
If you can’t wait to learn more, see our firm’s fact sheet on The Role of an Attorney for Personal Care at ggslawyers.com under the Resources tab.
1 In Ontario, a person who signs a power of attorney document is called a grantor. The person appointed by the document is called an attorney. In Ontario, the term attorney is not used to refer to a lawyer.
2All names and some of the facts have been changed in these examples, for privacy reasons