Have you executed Powers of Attorney?

On April 1, 2014, the Ontario Bar Association (the “OBA”) launched “Make a Power of Attorney” month, during which it is highlighting the importance of having properly drafted Powers of Attorney for Property and for Personal Care. What better time to revisit and provide an update on a case I previously blogged about – the case of the late stage Altzeimer’s disease patient out in British Columbia, Margaret Bentley – than a month dedicated to highlighting the importance of taking the time to consider how you would like personal care decisions to be made in the event you become incapable of making them yourself.

As a quick recap, Mrs. Bentley’s family sought, among other things, a declaration that Mrs. Bentley, who has advanced Alzheimer’s disease, not be given nourishment or liquids. Mrs. Bentley makes very few physical movements and can no longer feed herself. The staff at Maplewood Senior Care Society, the care facility where Mrs. Bentley resides (the “Care Facility”), places a spoon or glass on Mrs. Bentley’s lips; sometimes she takes the food or drink and other times she does not.

In this case, the family insisted spoon feeding constitutes health care and that the actions of the Care Facility’s staff went against her wishes as expressed in her statement of wishes (a lawyer in Ontario would recommend executing a Power of Attorney for Personal Care). The Care Facility argued that Mrs. Bentley would die of starvation and dehydration if they stopped spoon feeding her.

The court was faced with three questions:

First, is Mrs. Bentley currently capable of making the decision to accept nourishment and liquids? Second, if Mrs. Bentley is not considered capable to make the decision to receive nourishment and liquids, who has the legal authority to make this decision on her behalf? Third, does the law allow her decision maker to refuse consent for nourishment and liquids on her behalf?

The Supreme Court of British Columbia found that Mrs. Bentley was able to consent to treatment and therefor no substitute decision maker was needed. In addition, it was found that spoon feeding was personal care, not health care.

Although this decision is not binding in Ontario, the case touches upon a question that rests on a lot of people’s minds when executing a power of attorney for personal care – when is the document effective?

As stated by the OBA, a “Power of Attorney for Personal Care takes effect only once you become mentally incapable of making some or all of your personal care decisions.” If you are capable and can express your wishes in some way, the ability to consent rests in your hands.

This month, the OBA reminds us that it is important to “consider what your wishes are about your personal care decisions. If there are certain types of treatment that you do not want, you can specifically state this in your Power of Attorney for Personal Care.”  Further, you should review your Power of Attorney on an ongoing basis and ensure it changes as your wishes do.