1. The ABCs of POAs and Planning for Decision making and Basic Will Information
Advocacy Centre for the Elderly
2 Carlton Street, Suite 701,
Toronto, Ontario
M5B 1J3
Advocacy Centre for the Elderly 2017

2. Advocacy Centre for The Elderly
2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3
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Fax
Website
ACE Newsletter – E version – send to with Subject Line NEWSLETTER
Newsletter is also available on website and by hard copy by mail
Advocacy Centre for the Elderly 2017

3. Overview
Decision Making – When do I make decisions for myself and when does someone else get authority to do that FOR me ?
What happens if I become mentally incapable to manage money ?
WHO will do that for me and can I CHOOSE someone to do that ?– Powers of Attorney for Property – How do I get one for myself?
WHO will manage my money for me IF I don’t have a Power of Attorney for Property ?
Advocacy Centre for the Elderly 2017

4. Overview
What happens if I am not mentally capable to make HEALTH decisions for myself?
Who would make decisions FOR me?
Can I pick someone to do that for me? - Powers of Attorney for Personal Care - How do I get a POAPC for myself?
Do I NEED one?
Advocacy Centre for the Elderly 2017

5. Wills and Organ Donation
Wills- What is a WILL?
Do I NEED to have a will and why or why not?
If I WANT to make a will , how do I do that ?
Advocacy Centre for the Elderly 2017

6. What Decisions do you make in your Life?
Decisions about Property – money, personal goods, furniture, things of value to YOU, bank accounts, Public pensions or welfare benefits
Decisions about Personal Care – Shelter, nutrition, hygiene, safety, clothing and HEALTH care
Advocacy Centre for the Elderly 2017

7. Who Decides? You decide for yourself if you are MENTALLY CAPABLE
Your Substitute Decision Maker
(Substitute Decision Maker ) if you are NOT mentally capable
Advocacy Centre for the Elderly 2017

8. What does it mean to be MENTALLY CAPABLE?
Mental Capacity is related to a particular decision
You can be capable for some purposes and incapable for others
You can be incapable to manage money but capable for Health/personal care decisions
Advocacy Centre for the Elderly 2017

9. What does it mean to be MENTALLY CAPABLE?
To be Mentally Capable means that you have the ABILITY TO UNDERSTAND information to make a decision
AND You have the ABILITY to APPRECIATE the consequences of making a decision or not making a decision
Advocacy Centre for the Elderly 2017

10. What does it mean to be Mentally Capable?
Mental capacity to make DECISIONS is NOT determined by a doctor or any other health professional EXCEPT when it is about a HEALTH decision
It is not a score on any TEST
It is not a Diagnosis of Alzheimer’s or of any other mental health condition
Advocacy Centre for the Elderly 2017

11. Capacity Capacity is relative to a PARTICULAR DECISION
Can fluctuate or change
You are PRESUMED to be mentally capable unless there is EVIDENCE OTHERWISE
Some people may be capable for more decisions than others and some people capable for less decisions than others
Advocacy Centre for the Elderly 2017

12. Who decides on whether you are capable or not?
It depends on the TYPE of decision and whether the law requires a particular person to assess capacity for a particular purpose
Advocacy Centre for the Elderly 2017

13. Who Assesses Capacity?
Different types of people that assess capacity include
Lawyers/any service providers when they are taking direction from you for any service because they need to take direction from a person that is mentally capable
“Capacity Assessors” who are certain types of Health Practitioners who assess your ability to manage money
“Evaluators” who are certain types of Health Practitioners who decided whether you are capable to make a decision about moving into a LTC home
Health care professionals to determine capacity to make health treatment decisions
Advocacy Centre for the Elderly 2017

14. Planning for incapacity
How can you CHOOSE someone to make decisions for you if you should become mentally incapable?
Powers of Attorney for Property
Power of Attorney for Personal Care
Advocacy Centre for the Elderly 2017

15. What if you DON’T have these Powers of Attorney documents?
Who makes decisions for you? Property - Statutory Guardians ( Public Guardian) Court Ordered Guardians Trustees to manage Old Age Pensions or Welfare
Health care – AUTOMATIC List of people as set out in the Legislation (Hierarchy of Substitute Decision Makers) - EVERYONE has an SDM for health care even if you NEVER have chosen someone to do that for you
Advocacy Centre for the Elderly 2017

16. Power of Attorney for Property – WHAT IS THIS?
a DOCUMENT, in writing
in which you NAME someone to be your “ attorney”
You have to SIGN the document in front of two witnesses
TWO WITNESSES have to sign and witness your signature
Advocacy Centre for the Elderly 2017

17. Continuing Power of Attorney for Property
Comes into effect IMMEDIATELY as soon as you sign it
Your named attorney can act for you while you are mentally capable AND your attorney can CONTINUE to act when you become incapable OR
Can come into effect ONLY when you become incapable to handle money if the document states that
Advocacy Centre for the Elderly 2017

18. Do you NEED a Power of Attorney for Property?
Advocacy Centre for the Elderly 2017

19. IMPORTANT things to remember before signing a Continuing POA Property
You should ONLY name someone as attorney if you have someone that you TRUST and think that you will be able to trust in the future
You can name MORE than one person in the Continuing POA Property to act either
JOINTLY (always act together) or
JOINTLY or SEVERALLY - they can act both together or separately
Advocacy Centre for the Elderly 2017

20. IMPORTANT things to remember before signing a Continuing POA Property
The person who name as attorney will have the ability to “sign your name” – so think about what that means.
* This means that the attorney can get into your bank account Or can cash any cheque you get!
Advocacy Centre for the Elderly 2017

21. Think FIRST before signing a Continuing POA for Property!
Abuse of power of attorney is a CRIME; however, it is often very difficult to detect, and to recover money/property lost or misappropriated by the attorney
Advocacy Centre for the Elderly 2017

22. How do prepare a Continuing Power of Attorney for Property?
Use the free Ontario POA Kit but be careful completing it
Go to a free legal clinic (some prepare these documents - but NOT all – ask them if they do or if they know of a lawyer or other legal service that can help you get one done )
Advocacy Centre for the Elderly 2017

23. What do I do if my Attorney is Misusing the POA Property ?
If you have signed a Continuing POA Property and you think that your attorney is abusing that power, you can:
Revoke (take back) the Continuing POA Property in WRITING
Require the attorney to account for how he or she has managed or not managed your money/property – you may need legal help to do this
Create a new Continuing POA Property
Advocacy Centre for the Elderly 2017

24. What if you become mentally incapable and have never prepared a Continuing POA Property ?
You might end up being “assessed” by a health professional called a “Capacity Assessor”
If you are found incapable, the Public Guardian and Trustee will become your “Statutory Guardian and will then manage your money OR
Someone can apply to court to become your “Guardian of Property”
Advocacy Centre for the Elderly 2017

25. What if you become mentally incapable and have never prepared a Continuing POA Property ?
IF you are admitted to a Psychiatric Hospital, a physician MUST assess whether you are mentally capable to manage property if you have no POA Property
If you are found incapable of managing property, the PGT will also take over as your statutory guardian and mange your money
Advocacy Centre for the Elderly 2017

26. Applications to Consent and Capacity Board
If you are found incapable of managing money and a statutory guardianship is created, you can ask the Consent and Capacity Board to have that finding reviewed
Advocacy Centre for the Elderly 2017

27. Other options if you are not mentally capable and don’t have a Continuing POA Property ? - Trusteeships
If you get OAS, CPP, ODSP or OW, and you become incapable of managing property and have no Continuing POA Property ,someone can apply to become your TRUSTEE to manage your money for you
You will need to be assessed by a physician or anyone else that Service Canada will recognize as having authority to give such an opinion and have forms completed and sent to Service Canada for a family member or friend to manage your benefits or pension
Advocacy Centre for the Elderly 2017

28. Personal Care Decisions
Health care, nutrition, shelter, clothing, hygiene or safety decisions
If you are capable – only YOU can make these decisions
If you become incapable – one of the following will make personal care decisions for you
Guardian of the person appointed by court
Attorney for personal care
BUT NOTE- If decision is about health care, admission to a long-term care home or personal assistance services
THEN your SDM is Person that meets conditions to be SDM that is highest in the list in the Health Care Consent Act
Advocacy Centre for the Elderly 2017

29. Choosing a future SDM - Power of Attorney for Personal Care
YOU can prepare a POA for Personal Care to CHOOSE someone to make health and other personal care decisions
POA for Personal Care – is a DOCUMENT, in writing,
You name someone to be your attorney for personal care.
You can also write in that document your wishes about health care and treatment.
You sign the document in front of two witnesses
The two witnesses also sign the document
Advocacy Centre for the Elderly 2017

30. Power of Attorney for Personal Care
You can name MORE than one person to be your attorney for personal care,
The attorneys can make decisions for you TOGETHER ( jointly) , or Make decisions for you jointly AND separately
Advocacy Centre for the Elderly 2017

31. POA for Personal Care
The POA for Personal Care ONLY comes into effect when you become mentally incapable of making personal care decisions
THIS IS DIFFERENT than the Power of Attorney for Property which comes into effect immediately on signature unless it states otherwise
Advocacy Centre for the Elderly 2017

32. How do you prepare a POA for Personal Care ?
Use the free Ontario POA Kit but be careful completing it
Go to a free legal clinic (some prepare these documents - but NOT all – ask them if they do or if they know of a lawyer or other legal service that can help you get one done )
Advocacy Centre for the Elderly 2017

33. Important Things to think about before signing a POA for Personal Care
Do you need a POA for Personal Care ? Why?
Do you have someone that you trust to name as attorney - remember that if you are found to be incapable, this person will be able to make decisions about where you LIVE, what HEALTH CARE you will or won’t get, what food you eat, what clothes you wear, and what risks you can take…
Advocacy Centre for the Elderly 2017

34. Who is your SDM if you are not mentally capable to make Health Decisions?
You ALWAYS have an SDM for Health Care even if you have not prepared a POA for Personal Care
Your SDM is the person HIGHEST on the list set out in the Health Care Consent Act
Advocacy Centre for the Elderly 2017

35. List of SDMs for Health Care
Court Ordered Guardian of the Person
Attorney in a Power of Attorney for Personal care
Representative (person appointed by the Consent and Capacity Board)
Spouse or partner
Child or parent.
A parent who only has a right of access.
Brothers or sisters
Any other relatives
The Public Guardian and Trustee
Advocacy Centre for the Elderly 2017

36. Requirements for Person to be an SDM
The person highest in the hierarchy may give or refuse consent only if he or she is:
a) Capable in respect to the treatment;
b) At least 16 years old unless the parent of the
incapable person;
c) Not prohibited by a court order or separation
agreement from acting as SDM;
d) Available (including via electronic communications); and,
e) Willing to act as SDM.
BOTTOM LINE: IT IS THE OBLIGATION OF THE HEALTH PRACTITIONER OBTAINING CONSENT FROM AN SDM TO ENSURE THESE REQUIREMENTS ARE MET.
Advocacy Centre for the Elderly 2017

37. List of SDMs for Health Care
Person highest in list in YOUR life becomes your SDM for Health Care
If you have more than one person in the same category, then ALL of them must act together and agree or they may pick one of the group to act for you
If they cannot get unanimous agreement, either to the decision or as to which of them will act as SDM, PGT is required to make the decision
Advocacy Centre for the Elderly 2017

38. How does your SDM make Health Decisions for you?
Must follow your Wishes - so if you feel strongly about a particular treatment that you don’t want, you need to tell your future SDM
If no wishes are known then the SDM must act in what he or she thinks is what is in your “Best Interests”
Advocacy Centre for the Elderly 2017

39. Definition of Best Interests
SDM to consider:
values and beliefs
other wishes (i.e. expressed while incapable)
whether treatment is likely to: i) improve condition, ii) prevent condition from deteriorating, iii) reduce the extent or rate of deterioration
whether condition likely to improve or remain the same or deteriorate without the treatment
if benefit outweighs risks
whether less restrictive or less intrusive treatment as beneficial as treatment proposed.
Advocacy Centre for the Elderly 2017

40. What's the difference between a Power of Attorney for Personal Care and an “Advance Directive” or “Living Will”?
Ontario legislation ONLY refers to POA for Personal Care and the ability of people to express “wishes” about future health care
There is no reference in the legislation to advance directives or living wills . There is a campaign to get people to stop using these terms as these terms are only causing confusion .
Advocacy Centre for the Elderly 2017

41. What is Advance Care Planning in Ontario?
1. IDENTIFICATION when you are capable of your future Substitute Decision- Maker (SDM), by either
a) confirming that YOU are satisfied with your default/ automatic Substitute Decision-Maker in the hierarchy list that is in the Health Care Consent Act OR
b) YOU choosing someone else to act as SDM by preparing a Power of Attorney for Personal Care (a formal written document).
2. WISHES, VALUES, AND BELIEFS – YOU when capable discussing your wishes, values and beliefs, and more generally how you would like to be cared for in the event of incapacity to give or refuse consent These are used as a GUIDE for the SDMs NOT the Health practitioners
Advocacy Centre for the Elderly 2016

42. Advance Care Planning
In Ontario you DO NOT need to express wishes about care in writing in a document called a “living will”- There is no such document called a “living will” in Ontario
You can express wishes about future care by ANY MEANS
in your POA for Personal Care
on a piece of paper
By telling your SDM or another person
By communicating in any way you communicate (ASL, Bliss Board, etc)
Advocacy Centre for the Elderly 2017

43. Health Consent vs. Advance Care Planning
Before treating you, health professionals must get consent from YOU if capable
If you are not capable, the health professional must get the consent on your behalf from your proper SDM
Even if you have a written advance car planning document , the health professional must get the consent from YOU or your SDM – the document is NOT a consent
Advocacy Centre for the Elderly 2017

44. Health Consent vs. Advance Care Planning
Advance care planning can ONLY be done by YOU (not your SDM)
In advance care planning you can
CONFIRM that you want the person or persons highest in the Hierarchy of SDMS in the Health Care Consent Act to be your SDM OR CHOOSE someone to be your SDM by preparing a POA for Personal Care
Express WISHES about your future health care and communicate your VALUES and BELIEFS
Advocacy Centre for the Elderly 2017

45. Health Consent vs. Advance Care Planning
The advance care planning wishes, however expressed, orally or in writing or by other means, is NOT a direction to your health providers EXCEPT in an emergency when its not possible to get consent from you or your SDM
Advocacy Centre for the Elderly 2017

46. Advance Care Planning
Advance care planning helps your SDM make health care decisions if you are not mentally capable to make them yourself
Advocacy Centre for the Elderly 2017

47. Important things to know about advance care planning
Are you required to sign an “advance directive” or any other form of advance care plan before moving into a long term care home or getting care in a hospital? NO
Can the home/hospital require you to sign such a document – NO – it is voluntary
Can the home/hospital require you to use their form if you want to express wishes about health care – NO – you can express your wishes any way that you want – orally, in writing, in a POA for Personal Care, by other means
Advocacy Centre for the Elderly 2017

48. DNR/ No CPR
Wishes about this treatment (refusal of this treatment) can be done in oral/ written advance care planning wishes even if you are not at end of life
If you are at end of life – and a decision is directly relevant to your then present health condition, you can give or refuse consent to CPR
Advocacy Centre for the Elderly 2017

49. How Consent, ACP, and Goals of care conversations relate
Advocacy Centre for the Elderly 2017

50. Wills
A will is a document in writing that sets out your directions on how your estate should be taken care of and distributed after your death. It takes effect on your death.
Your estate is the property that you own or have a legal interest in.
In the will you name someone to be your ESTATE TRUSTEE (executor) to manage the distribution of your estate and direct how you want your estate distributed
Advocacy Centre for the Elderly 2017

51. What is included in the contents of a will?
names someone to be your ESTATE TRUSTEE (executor) to manage the distribution of your estate
directs how you want your estate distributed
must be signed by you in the presence of two witnesses who also must sign it
is only valid if you are mentally capable to make a will, you make it voluntarily and not under duress
It is only in effect after you die
Advocacy Centre for the Elderly 2017

52. How do you get a will prepared?
You can
Go to a lawyer to have him or her prepare a will for you
Use a will kit (be very careful when using any will kit – laws governing wills are provincial; therefore the will must be prepared in accordance with Ontario law
Advocacy Centre for the Elderly 2017

53. Can I make a will in my own handwriting? – Holograph Wills
Yes.  A will that is ENTIRELY in your handwriting is called a “holograph will”.  If your will is completely written out in your own handwriting and your sign and date it, then it is a valid will in Ontario.
You do not need witnesses for a holograph will.
For a holograph will to be valid,  there must be evidence
that the person making the will actually created the will. This might be proved through witnesses, friends, other handwritten documents that verify identity of the handwriting
That the person making the will was mentally capable to make a will
That the person making the will has expressed a wish that his/her estate be distributed to beneficiaries.
Advocacy Centre for the Elderly 2017

54. What if you die without preparing a will
What if you die without preparing a will? How is your estate distributed?
When a person dies with a will, the estate is distributed according to the directions in the will.
When a person dies without a valid will, Ontario's law on intestate succession (Succession Law Reform Act) sets out how the estate must be distributed
Advocacy Centre for the Elderly 2017

55. How an estate is distributed if a person dies with no will
To the spouse of the deceased , if living, the first $200,000
To the spouse and children, the excess over $200,000 shared according to specific rules;
If no spouse, to the children and descendants of the deceased, if any;
To the parents of the deceased if no spouse or descendants;
If no surviving parents, to brothers and sisters, and children of the deceased brothers and sisters;
If no brothers and sisters, then to living nieces and nephews
To other more remote relatives
Advocacy Centre for the Elderly 2017

56. What does the Estate Trustee need to do when a person dies?
The estate trustee is responsible for making sure that appropriate funeral arrangements take place
The estate trustee is responsible for making sure that your debts are paid from your estate
The estate trustee is responsible for distributing the estate in accordance with the will
Advocacy Centre for the Elderly 2017

57. Death Benefits
There are benefits from the federal government, which may be available to a surviving spouse and dependent children of a deceased person and to the deceased person's estate.
More information on these benefits is available from Service Canada
Advocacy Centre for the Elderly 2017

58. Organ and Tissue Donation
Trillium Gift of Life Network is a not-for-profit provincial government agency dedicated to planning, promoting, coordinating and supporting organ and tissue donation across Ontario, and improving the system so that more lives can be saved.
Trillium Gift of Life Network was created by the Ontario government's Trillium Gift of Life Network Act, legislation designed to significantly increase organ and tissue donation in Ontario, and became operational in April 2002.
Advocacy Centre for the Elderly 2017

59. Registering as a Donor
There is more than one way to register as a donor.
Download the Gift of life from the Trillium Gift of Life Website
Visit a Service Ontario Centre; or
Visit
Advocacy Centre for the Elderly 2017

60. Consent by person for use of his or her body after death
4.  (1)  Any person who has attained the age of sixteen years may consent,
(a) in a writing signed by the person at any time; or
(b) orally in the presence of a least two witnesses during the person’s last illness,
that the person’s body or the part or parts thereof specified in the consent be used after the person’s death for therapeutic purposes, medical education or scientific research.
Advocacy Centre for the Elderly 2017

61. If I have a signed Donor Card do You need to Register?
A donor card is a paper card. Your decision to donate is only known to the extent that you share this decision with your family and friends.
When you register your consent to donate organs and tissue, this information is stored in a Ministry of Health and Long-Term Care database. The ministry will disclose information about your decision to Trillium Gift of Life Network, Ontario's organ and tissue donation agency, for the purpose of ensuring that your decision to donate is known and respected. By registering your consent to donate, you ensure that your donation decision is recorded and is made available to the right people at the right time, and is shared with your loved ones
Advocacy Centre for the Elderly 2017

62. If you don’t sign a donor card or register as a donor, are you considered as a “NO” for donation?
No. If you are a potential organ and tissue donor your family will be approached by Trillium Gift of Life Network (and health care professionals) to discuss the option of donating your organs and tissue. Your family can consent to donate on your behalf, if you are unable to do so.
Therefore, it is important that you share your donation decision with your loved ones, so that they can fulfill your donation decision in the event of your death. If you register consent to donate, this information will be shared with your family so that they can respect your wishes. Also, you relieve them of the burden of making this decision on your behalf
Advocacy Centre for the Elderly 2017

63. Can your family overrule your decision to donate?
It is the Trillium Gift of Life Network's practice to reaffirm an individual's consent to donate with the family.
In almost all cases, families honour and respect their loved ones' donation decision if they are given evidence that it's what the donor wanted. Therefore it is important to register your consent to donate so that your family can be advised of your decision to donate
Advocacy Centre for the Elderly 2017

64. Types of Donations Donations for Transplant Research Science
Everyone can be a donor regardless of age, medical condition or sexual orientation
Advocacy Centre for the Elderly 2017

65. Consent if Incapable or Post Mortem by Others
If a person has not given consent in advance of death or is incapable of giving consent as determined by a physician and death is imminent, consent to donation may be given by:
Spouse
Children
Parents
Brothers or sisters
Other Next of Kin
Person lawfully in possession of body or administrative head of hospital
UNLESS person above have reason to believe person who is subject of donation would have objected
Advocacy Centre for the Elderly 2017

66. Thank You! Advocacy Centre for the Elderly 2 Carlton Street, Ste 701
Toronto, Ontario
M5B 1J3
Advocacy Centre for the Elderly 2017