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Power of Attorney

Posted Sep 17th, 2019 in Caring for Yourself, GERI-Minute, Planning Ahead

Did you think that your spouse was automatically your Power of Attorney? What's the difference between Power of Attorney for Property and Power of Attorney for Personal Care?


Today's GERI-Minute, we look further in Power of Attorney for Property and Personal Care.

1 comment

  • Judith wahl on Jan 26th, 2020
    I commend you on your website. As a lawyer that has practiced most of my career as an elder law specialist I think there is a need for more info on aging issues so very glad to see you doing this. Now the but. The but is that you should be more accurate about legal info. So despite my praise for your website I am going to suggest some tweaks on this video and I hope you are not offended as I mean this as a positive help. So the power of attorney is a document not a person.. the attorney is the decision maker appointed in the power of attorney document. Power of attorneys for property are not just in effect after incapacity to manage property. The power of attorney comes into effect immediately on signature unless it contains a clause that states it should not come into effect until after incapacity of the grantor ..the person who signs that document, The grantor can draft in who determines that incapacity . That can be a particular individual and does not need to be a health practitioner or a formal capacity assessor. If the document does not specify who or what type of person such as a physician or social worker or a friend should determine whether the grantor is capable or incapable then the law defaults to requiring that a capacity assessor must be used . Note that is only if the poa propertt has a clause requiring a incapacity determination before coming into effect. Othewise the poa property comes into effect on signature and both the attorney and the grantor have the same right of access to bank accounts and all assets of the grantor. The people on the hierarchy of substitute decision makers (SDMs) are not all “attorneys”. They are all different types of health substitutes decision makers so that is the generic term and not the term power of attorney or attorney. This is important to understand as many people working in the health system keep on referring to all SDMs as attorneys when in fact they are quite different, An attorney for perrsonal care has the same authority as the other SDMson the hierarchy when making health decisions for an incapable person except that they are higher in priority than other SDMs but that attorney for personal care has power to make all other personal care decisions for the grantor whereas the other SDMs for health care are limited to only making health care decisions about treatment, admission to a long term care home, confining in a long term care home and personal assistance services in a long term care home. For example an attorney can consent to rental of accommodation in a retirement home for an incapable person but the SDM for health care cannot because a retirement home is rental accommodation and is not considered as a health facility although health care services may be available in those places. It’s also important to distinguish between an attorney on that hierarchy and other people acting as SDMs for health care because an attorney is higher on the list than other SDM . If the health practitioners and family think that the all SDMs are attorneys in POAPersonal Care then when someone shows up with a POA Personal care after a family member has started acting as SDM then the attorney takes over as decision maker if the POAPC is valid. And the health practitioners have the right to question the attorney if that poa document magically appeared when family conflict over who is the right SDM had started. In fact it’s the duty of the health practitioners to do that since the health practitioner needs to determine who is the SDM for health care as set out in the law. So I know I have written a lot but your three minute video could benefit from some tweaks so that the info given is accurate. It’s not saying everything I explained here but it’s referring to attorneys rather than calling them power of attorneys. it’s stating that an attorney in a poapc has priority over other SDMs for heath care and that that attorney is a type of SDM for health care. It’s stating that poapcs only come into effect on incapacity but POAproperty come into effect immediately on signature etc.. I hope you find this helpful because that’s what it is meant to be. If you are interested in talking send me an email. I’m now retired from my position as executive director and senior lawyer at the Advocacy Centre for the Elderly a community legal clinic for older adults and am now doing part ti e work as a consultant, speaker,and writer. Perhaps we could collaborate on some things if you are interested. If not no worries. But please make tweaks to this video as it’s misleading as is and I’m sure you don’t want to be misleading.

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