Living Will/Power of Attorney

December 21, 2016

The expression “living will” is sometimes used to refer to a document in which you write down what you want to happen if you become seriously ill, in danger of death, and can’t communicate your wishes about treatment or non-treatment.

It is quite common, for example, for people to write a “living will” saying that they do not want to be kept alive on artificial supports if they have no hope of recovery.

The term “advance directive” is also frequently used to refer to such a document. Some people use the phrase “proxy directive” to describe a document that combines a Power of Attorney and a “living will”.

Is a living will the same as a “Power of Attorney”?

A Power of Attorney is a legal document in which you name a specific person to act on your behalf. You can, however, write your treatment wishes (your “living will” or “advance directive”) as part of your Power of Attorney document so that you can be sure your attorney is aware of them.

A “living will” simply addresses your treatment and personal care wishes in your final days or hours and does not need to name anyone or be written in any specific way.

Is a Power of Attorney or “living will” the same as a “Last Will and Testament?

Your last Will and Testament covers the distribution of your property after you die and only takes effect upon your death. A Power of Attorney and a “living will” only apply while you are living and cease to be effective upon your death.

What types of decisions will my attorney for personal care be allowed to make?

Unless you restrict your attorney’s powers, he or she will be able to make almost any decision of a personal nature that you could normally make yourself. Decisions about medical treatment, housing, food, hygiene, clothing and safety are examples of “personal care” decisions.

Who can I appoint as my attorney for personal care?

– The person you appoint must be at least 16 years of age and mentally capable.

– You can name someone who lives outside Ontario.

– You cannot name someone whom you pay to provide services to you, unless that person is a relative.

Give your choice very careful consideration.

If the need arises, your attorney will be making profoundly important decisions about your health and quality of life. This is a very important decision and needs a lot of careful thought. Remember, your attorney may speak on behalf of your care treatment, housing etc.

Consider whether the person is willing to take on this job, if needed. There may be a lot of work involved and the law expects your attorney to meet very high standards.

Deem whether the person is trustworthy, responsible and good at knowing your needs. Will she or he make sure that you have everything you need? Will your privacy be respected? Can you trust the person not to misuse your trust?

Can I name more than one person as my attorney?

Yes. If you do this, all attorneys will have to agree on every decision that is made for you, unless you write in your power of attorney that they can act “jointly and severally”. If you include this phrase, any one of your attorneys will be able to make decisions on their own if the other is unavailable for some reason. But think carefully before naming multiple attorneys – it can make things more complicated if difficult decisions need to be made quickly.

I want to name a specific family member to be my attorney but I am worried that this decision will cause conflict. Is there anything I can do to prevent this?

There are a number of options that may help, depending on your situation and personal preferences. Telling your family in advance and explaining the reasons for your choice may often avoid conflict. Sometimes conflict is created because the rest of the family doesn’t know what your attorney is doing relative to your affairs or care. To avoid this, some people name more than one family member and require that all decisions and transactions be approved by both of them. This can reduce distrust but it can also create conflict if they disagree about decisions. Other people simply choose to specify in the Power of Attorney that all the family must be kept informed about decisions and provided with full information. Another way to avoid family conflict is to name someone else, such as a close friend, a trust company or lawyer.

What happens if I don’t make a Power of Attorney for Personal Care?

If you become incapable of making decisions about medical care or about admission to a long term care facility, a family member would automatically have the right to make these decisions for you unless someone else is appointed by the Consent and Capacity Board to be your representative.

If there are no family members or representatives available, capable or willing, the Office of the Public Guardian and Trustee is required to make these decisions on your behalf.

Do I have to use a lawyer to make my Power of Attorney or “living will”?

The law does not require anyone to use a lawyer’s services, however, you may wish to consider hiring a lawyer, especially if your affairs are complicated.

For more information and assistance please contact the Elliot Lake and North Shore Community Legal Clinic at 461-3935 or 1-800-465-2479 or visit us on the web at www.northshorelegal.ca