Recently there has been a flurry of inaccurate media coverage of the new Substitute Decisions Act. Lawyers and government have received many anxious calls from people who have heard that they must make a Power of Attorney before the legislation becomes effective, otherwise the government will take over their affairs. This is simply not so. Here, I will clarify the points.
First it is important to note that often, because of particular circumstances in an incapacitated person's life, there is no need for anyone to have formal authority to make decisions for that person. Informal arrangements can work quite nicely, and this won't change under the new legislation.
Under current lawProperty Decisions: For property and financial matters, you can control what happens by appointing a Power of Attorney. If you become ill, the person you pointed can manage your property. If you did not appoint a power of attorney before becoming incapacitated, then someone (usually a family member) may apply to the Court to be appointed as committee (guardian) of your property, otherwise the Public Trustee will take on the job. The attorney you appoint yourself does not need to be bonded or have a management plan. But if the Court has to appoint someone, that person must file a management plan and usually must be bonded.
Personal Care (including medical) Decisions: The current Power of Attorney applies only to property - it cannot authorize anyone to make personal care decisions or medical decisions for you. If you are in hospital, doctors currently accept the consent of your next of kin for medical decisions. You have no choice about this. Directions (living wills or advance medical directives) you gave while you were well about what was to be done in medical situations may not be considered binding once you are incapacitated.
Under the new lawProperty Decisions: You will still be able to appoint a Power of Attorney, and if you have appointed one before the legislation changes, it will probably continue to be effective. Make sure that it contains the following clauses or something along these lines:
1. In accordance with the Powers of Attorney Act, I declare that this power of attorney may be exercised during any subsequent legal incapacity on my part.
2. In accordance with the Powers of Attorney Act, I declare that, after due consideration, I am satisfied that the authority conferred on the attorneys named in this power of attorney is adequate to provide for the competent and effectual management of all my estate in case I should become a patient in a psychiatric facility and be certified as not competent to manage my estate under the Mental Health Act. I therefore direct that in that event, the attorneys named in this power of attorney may retain this power of attorney for the management of my estate by complying with subsection 56(2) of the Mental Health Act and in that case the Public Trustee shall not become committee of my estate as would otherwise be the case under clauses 56(1)(a) and (b) of that Act.
A power of attorney containing these clauses will usually continue to be effective under the new rules. The attorney you appoint will not have to file a management plan or be bonded.
Application to Public TrusteeIf you have not made a Power of Attorney for property before you become incapacitated, the law is intended to make it easier for your family to assume control. At present, family members must go to Court to be appointed if there is no power of attorney. Under the new law, family members may make application to the Public Trustee's office to be appointed guardian without the trouble and expense of a Court application. The guardian appointed by the Public Trustee will still have to be bonded and file a management plan.
If someone other than family wants to apply to be guardian, they must apply to the Court, with bonding and a management plan. And, as a last resort, the Public Trustee will take on the job if there is no one else, just the same as now.
Personal Care (including medical) Decisions: Under the new Act, there will be a new kind of Power of Attorney for personal care and medical decisions. This power will be most important for certain people who may wish to choose their own medical-decision maker: those with no close family, those who are closer to friends than to family, those family members who disagree with one another.
When will the Substitute Decisions Act come into effect? The act has been passed but not proclaimed. The latest guess for proclamation is April 3rd, 1995.
What should I do now? If you don't have a Power of Attorney for property, consider getting a new one now. You don't know when you might become incapacitated, and the power of attorney you draw up now will remain effective under the new law.
Jane Bennett, whose practice is restricted to Estates and Wills, is a lawyer with the firm of Martin & Martin, in Hamilton.
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For copies of the Act and information kit, call The Office of the Public Trustee at (416) 314-2989 or drop by at 595 Bay Street (Ground Floor at the corner of Bay & Dundas), Toronto, Ontario M5G 2M6.
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