At this difficult time, with all of us isolated for so long and the constant threat of contracting COVID-19 ever present, the members of the Aird & Berlis Estates and Trusts Group are contacted daily by existing clients, as well as new ones.

Many people are soberly reflecting on their own circumstances. Fearful of being exposed to infection, illness and, from the statistics forced upon us daily, death, there is a great deal of internalizing about what would happen to their family if they were stricken.

It has long been said that a very high percentage of Ontario residents do not have a will. However, of those who do have a will, many likely need to update it based on changes in their financial or relationship circumstances.

We venture to suggest that it is likely that an even greater percentage of Ontario residents do not have a Power of Attorney, whether for Property or Personal Care, to cover the eventuality of becoming legally incapable of managing their own affairs.

We are sure that many of our readers will want to ensure their planning is up-to-date. For our readers who are advisors, it is important to ensure that your clients’ planning is also up-to-date. To that end, we have produced a weekly series of Alerts which will provide basic information in response to questions we are frequently asked.

Let’s start today with the first question:

What happens if you become incapable of managing your affairs and you have no Power of Attorney for Personal Care?

If you become incapable of making personal care decisions, sometimes costly and delaying steps will have to be taken to permit you to be looked after properly.

It may be necessary to make an application to the Court to appoint a “Guardian of the Person”, requiring some ongoing supervision by the Court and substantial costs. Among the issues to be determined will be the question of whether that person is going to be paid for services to be provided.

If it is considered unnecessary to have a Guardian appointed, someone has to make important health care decisions and has to ensure that they are carried out.

Among the many issues, there could be a necessary decision as to whether you should be in some kind of health care facility and, if so, which facility (despite, perhaps, never wanting to be removed from your home).

Also, it is likely that decisions have to be made relating to what your medical treatment, including surgery, should be.

The person making those and many other decisions may very well be the last person you would have wanted. Specified family members have the right to make personal care decisions. It will not be just any family member. The law specifies, in a list of priorities, who that will be. The right to assume those responsibilities is in the following order:

  • A spouse or “partner”
  • A child, at least 16 years old
  • A parent
  • A brother or sister
  • Any other relative
  • and, if there are none of those available, willing and able, The Office of the Provincial Public Guardian and Trustee.

Imagine that you are in a hospital and medical authorities believe that a certain procedure should be undertaken quickly. It is quite possible that they will have to spend time consulting family members in that specific order until they find one ready to assume the making of a decision.

Or, consider that an attending doctor believes that life-prolonging measures should be taken, and they are of a nature you never would have wanted had you been capable of decision-making.

The examples above highlight the importance of completing a Power of Attorney for Personal Care while you are capable of doing so.