POA, or no POA? : What Are The Options?
September 14th, 2014
In the last article we gave a general overview on the topic of: Power Of Attorneys(POAs). Understandably, it can be a confusing topic to wrap one’s head around. Some may question why the need for POAs, or what may happen in the case if they, or their loved one, did not make POAs. Great questions; Let’s discuss:
Personal/ Health Care Decisions:
Having a POA for personal/health care gives you the opportunity to select who you would want making decisions on your behalf, if you were deemed incapable to make particular decisions. If however you or your loved one does not have a POA completed (or any other legally appointed decision maker assigned), Ontario law does have a system in place to ensure individuals have a decision maker (at least for some health care decisions). This system makes use of what is referred to as , the Substitute Decision Maker(SDM) Hierarchy. If one is deemed incapable of a particular personal/health care decision , your health care provider would then need to determine, based on the ranking in the hierarchy, who would be the decision maker. The hierarchy is as below:
- “Your spouse, common-law spouse or partner
- Your child (if they are 16 years of age or older) or parent
- Your parent with right of access only
Custodial parents rank ahead of non-custodial parents
- Your brother or sister
- Any other relative by blood, marriage or adoption.
- The Office of the Public Guardian and Trustee.
The provincial Public Guardian and Trustee is the substitute decision-maker of last resort if there is no other appropriate person to act for you”1
In the hierarchy, those listed in equal ranking have equal decision making power. For example, if the decision maker(s) based on the hierarchy are determined to be one’s child(ren), then all children equally share the decision making, or they can all be in agreement to designate one person to take on such a role.
So yes, there is indeed what some may call a default back-up plan in place if one does not make a POA. This plan(SDM hierarchy), however, may not be the best option for some (or many) for a few reasons, which could include:
- The person listed highest in the SDM hierarchy may actually not be the person you would want making decisions for you.
- Decision making based on the hierarchy can cause complications based on one’s familial relationships or family dynamics.
Example 1: Mr. Brown has 2 children from his first wife(now divorced). Mr. Brown however has recently remarried. Based on the SDM hierarchy Mr. Brown’s new wife is the decision maker. Mr. Brown’s children however are in great disagreement with the health care decision which Mr.Brown’s new wife is making; thus causing arguments within the family, as well as creating quite a distressing circumstance for Mr. Brown’s children.
Example 2: Mrs. Bell has 2 children, who are determined to be her SDMs. Mrs. Bell’s 2 children however do not get along well with each, have been estranged from each other most of their lives, and are now not in agreement with each other in terms of how to proceed regarding a health care decision for Mrs. Bell; thus causing arguments, and delaying health care decisions from being made.
- The SDM hierarchy is only applicable for some(not all) health decisions (primarily treatment and admission to long-term care decisions). Furthermore, the SDM hierarchy does not apply in regards to one’s finances or assets.
As mentioned, there is not an SDM hierarchy for one’s property/finance decision making. Thus if one does not formally make arrangements(i.e POA, joint bank accounts,etc) for one’s property/finance, it can cause a great dilemma, as no one is able to gain access or make decisions regarding the individual’s assets. Such circumstances could mean a loved one may not even be able to gain access to finances in order to arrange for the care of the individual(ie. payments to arrange caregiver services or transfer to a retirement home, etc)
In such cases, a process, which more often than not is quite a lengthy process, will need to take place:
- Determining Incapacity: A professional will need to make some determination that your loved one is incapable of managing or making decisions regarding their property/ finances. In some cases, physicians( being health care professionals) will not want to make comment on one’s ability to manage property/finances, thus one may need to have a financial capacity assessment completed by a professional trained in such assessments. Financial capacity assessments are fee-for-service, and cost within the $600-$700 range, to be completed.
- Public Guardian and Trustee: Once it has been determined that an individual is unable to make property/financial decisions, the report indicating this information will be submitted to the Public Guardian and Trustee(PGT). The PGT will then assign a “guardian of property”, who essentially becomes the legal representative to manage the incapable individual’s financial matters.
- Becoming Decision Maker: Once the PGT has taken over managing an individual’s finances, if you wish to apply to take over this role, there are two options: a) apply to the PGT to take over the role from them, or b) apply directly to the courts to take over such a role. For more info regarding how to become a guardian of property for a loved one, click here.
When it comes to planning for one’s care it is always best to plan ahead, in order to avoid crisis situations, as well as to ensure that formalities are in place to allow for one’s wishes to be carried out. Don’t put it off any longer. Sit down with your family and loved ones today to start discussing the important matters related to your health care planning, well-being and future.
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