Power of Attorney for Personal Care in Ontario: The Rules

Walter is 71, a retired bus mechanic in Peterborough, and for three years a neighbour named Irene has come by twice a week through a home-care agency to help with his meals and his blood-pressure log. When his niece drives up from Oshawa one Saturday to talk through his plans, Walter says he would like Irene to speak for him if he ever can't. His niece has been reading Ontario's Substitute Decisions Act, 1992, and points to a line that changes the plan: someone paid to provide health care or support services to him generally cannot act as his attorney for personal care unless she is his spouse, partner or relative.^[NaN] Irene stays a trusted friend whose views Walter writes down. His niece becomes the attorney.

That correction over a pot of tea is a fair picture of how the Ontario document works. Most of its rules are short, but a handful of them quietly decide who can hold the role, how the paper is signed and when the authority actually switches on. This guide covers those rules for Ontario only. For the way other provinces handle the same idea, our guide to powers of attorney for personal care compares the national picture.

A separate document from the one about money #

Ontario splits substitute decision-making into two parts of one statute. Part I deals with property, through a continuing power of attorney for property. Part II deals with personal care. Under s. 46(1), a person may give a written power of attorney for personal care that authorizes one or more named attorneys to make decisions about the grantor's personal care on the grantor's behalf.^[NaN]

Because the two documents sit in different parts of the Act, they carry different rules. The property part applies to decisions for people who are at least 18, and an attorney for property generally has to be 18 as well (ss. 4 and 5).^[NaN] The personal-care part sets a lower age, which the next section covers. It often makes sense to think about both documents at the same sitting, since the questions they raise overlap.

The personal-care document can also hold more than a name. Section 46(7) says it may contain instructions about the decisions the attorney is authorized to make.^[NaN] That is where a grantor might record views on, say, the kind of care that matters to them or the setting they would prefer to live in.

Sixteen, on both sides of the page #

Part II applies to decisions on behalf of persons who are at least 16 years old (s. 43), and a person exercising a power of decision under Part II generally has to be at least 16 too (s. 44).^[NaN] So Ontario's personal-care rules reach younger people than the property rules do, both as the person giving the document and as the person named in it.

Age is only half the test. Section 47(1) explains what capacity to give a power of attorney for personal care means. The person generally needs:

• the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; and
• an appreciation that the person may need to have the proposed attorney make decisions for them.^[NaN]

That test is narrower than the one for the property document, which asks whether the grantor knows what property they have and its approximate value and is aware of obligations owed to dependants, among other things (s. 8(1)).^[NaN] Whether a particular person meets either test turns on the facts at the moment of signing.

Who can and cannot hold the role #

Beyond the age rule, the Act shuts out one main group. Under s. 46(3), a person may not act as an attorney for personal care if they provide health care to the grantor for compensation, or provide residential, social, training or support services to the grantor for compensation, unless they are the grantor's spouse, partner or relative.^[NaN]

The family exception is worth reading twice. A daughter who is paid through a family care arrangement may still be able to act, because she is a relative. A paid support worker who has grown close to the household usually cannot, however strong the bond. In Walter's case the rule did not push Irene out of his life; it simply kept the legal authority with family.

Much of the choice is personal rather than legal. Things worth weighing include whether the person lives close enough to attend appointments, how they handle disagreement with other relatives, and whether they will honour wishes they may not share themselves.

Two witnesses, and a list of people who cannot be one #

Section 48(1) says a power of attorney for personal care shall be executed in the presence of two witnesses, each of whom signs it as a witness.^[NaN] Section 48(2) then borrows the list of disqualified witnesses from s. 10(2), in the property part of the Act.^[NaN] Read together, those sections generally rule out five groups as witnesses: the person you appoint and that person's spouse or partner; your own spouse or partner; your children, including anyone you have shown a settled intention to treat as your child; anyone who has a guardian of the person or whose property is under guardianship; and anyone younger than 18.^[NaN]

The last item catches people out. Even though the grantor and the attorney can each be 16, a witness generally has to be at least 18. The list also excludes the grantor's own spouse and children, which surprises families who assume a close relative is the natural choice. Two adult friends or neighbours outside these categories are a practical answer for many people.

For the way witnessing works on the will side, see our Ontario will guide.

When the attorney's authority actually starts #

Signing the document does not hand over decisions on the spot. Section 49(1) ties the attorney's authority to the kind of decision in front of them:

• where the Health Care Consent Act, 1996 applies to the decision, the provision is effective if that Act authorizes the attorney to make it; and
• where that Act does not apply, the provision is effective if the attorney has reasonable grounds to believe the grantor is incapable of making the decision, subject to any condition in the document requiring that incapacity to be confirmed first.^[NaN]

Two practical points follow. The wording points to a decision-by-decision approach, so a grantor may keep making some choices while an attorney handles others. And a grantor who wants an added safeguard for decisions outside the Health Care Consent Act can include a condition that their incapacity be confirmed before the attorney acts, which s. 49(1)(b) expressly contemplates.^[NaN]

Where a decision does fall under the Health Care Consent Act, 1996, that Act shapes the attorney's role. Our article on advance care directives in Ontario explains how it works in more depth.

Ending it, replacing it, or starting over #

Section 53(1) lists the events that generally end a power of attorney for personal care:

• the attorney dies, becomes incapable of personal care or resigns, unless another attorney is authorized to act or the document names a substitute who is able and willing to act;
• the court appoints a guardian for the grantor under s. 55;
• the grantor executes a new power of attorney for personal care, unless the grantor provides that there are to be several; or
• the power of attorney is revoked.^[NaN]

A revocation is not a pair of scissors. Under s. 53(2), it has to be in writing and executed in the same way as the power of attorney itself, which in Ontario means two qualifying witnesses again.^[NaN]

The first item explains why naming a substitute is often worth the extra line. If the only attorney named dies or steps down and nobody else is authorized, the document generally ends, and the family is back where it began.

Keeping the personal-care document beside your will #

A power of attorney for personal care speaks while you are alive and unable to decide; a will speaks after death. They answer different questions, and Ontario handles them under different statutes. Families who sit down to sort out one often turn to the other in the same conversation, and our Ontario will hub gathers the province-specific rules for the will side.

If the will is your next step, you can begin your Ontario will with It's Simple Will and work through it at your own pace.