In my last blog, I wrote about the hierarchy of decision-makers that the law provides in the event you are incapable of making your own medical decisions and do not have a valid Power of Attorney for Personal Care.  The alternative is for an interested person (a friend or relative, most likely), to apply to the court to be appointed as your Guardian “of the person” (which is distinct from a Guardian or Property, discussed in a previous blog).

If you do not have a Power of Attorney for Personal Care and you become incapable of personal care decisions, a guardian of the person may be appointed by the court in the same manner as a guardian of property. A guardian of the person has extensive powers including the power to make decisions regarding your living arrangements, recreational activities, treatment, health care and nutrition.

The Public Guardian and Trustee may be appointed as your temporary guardian of the person where it reasonably believes that you are incapable of managing your person in the same circumstances and by the same procedure in which it may be appointed as temporary guardian of property.

The value of a Power of Attorney for Personal Care is that you can be certain about the choice of person who is to act as your attorney.  It is also faster, easier, and less costly to establish than a court-appointed guardianship.

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In the last blog in this series, I discussed Powers of Attorney for Personal Care.  What happens if you don’t have one and are then in a situation where medical instructions need to be given and you are incapable of doing so?  Who is entitled to give those instructions on your behalf?

If you are unable to give or refuse consent to treatment and you do not have a Power of Attorney for Personal Care, immediate members of your family will have a right by law to make treatment decisions for you. The law provides for a hierarchy of decision-makers: the spouse, then the parents, then the children, then brothers and sisters. If none of your relatives are willing and able to give or refuse consent to treatment, the Office of the Public Guardian and Trustee (a government agency) will make these decisions.

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Today’s blog in this continuing “overview” series is on Powers of Attorney for Personal Care.

A person with mental capacity may appoint one or more attorneys for personal care to make decisions about personal and health care and to give consent to treatment, but the attorneys may act only if and when the person is unable to make such decisions on his or her own. The determination of whether a person is capable of making decisions is usually made by one or more medical practitioners.

You can provide for alternates to act if the person you appoint as your attorney for personal care is unable or unwilling to act. The only restriction on the appointment of an attorney is that you may not name a person who provides you with healthcare or residential or social advocacy support services for compensation.

You can instruct your attorney to consult with family or friends before making a decision, but it is best to stipulate that the final decision must be made by the attorney alone. Generally, the attorney must make the decision in the best interests of the person who is incapable, as that decision would be made if the person were capable. To do this, the attorney can follow either explicit instructions, prior discussions and conversations with the incapable person, or in the absence of instructions or prior discussions, by making a judgment based on the known values, interests and concerns of the person.

If you appoint more than one attorney, you should either appoint the attorneys jointly (where all must act together), or jointly and severally (where all may act together, but each may act independently). You can provide for decision-making to be made by more than one attorney by teleconference, for urgent situations or where one or more attorneys may not be available.

You can specify your wishes in a Power of Attorney for Personal Care, including personal care instructions. You may include a general instruction that the attorney is to arrange whatever services or care are necessary to keep you comfortable, keeping in mind financial resources, or to remove you from your home and place you in a long-term care or other health institution if the attorneys are satisfied that that is in your best long-term interests, including emotional, physical, spiritual and economic interests.

You may also give instructions relating to treatment under specified circumstances, such as a situation where you are suffering from injury, disease, illness or long-term intolerable pain.

Some choose to prioritize relief of suffering and provision of comfort over the prolongation of a diminished quality of life by using wording such as:

“If I have been diagnosed with an irreversible terminal illness and I am in pain, my pain is to be managed by sufficient medication or other palliative care treatment as may be required to alleviate my suffering, even if such treatment may have other detrimental health consequences or may have the effect of shortening my life. The priority for my medical treatment shall be relief of suffering and provision of comfort, rather than the prolongation of a diminished quality of life.”

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In my last blog, I wrote about Continuing Powers of Attorney for Property, in which you can name one or more individuals to manage your financial affairs on your behalf should you become incapable of doing so yourself.

If you do not appoint a Continuing Power of Attorney for Property and you become incapable of managing your property the court may, on any person’s application, appoint a guardian of property to make necessary decisions regarding your property on your behalf.

When appointing a guardian of property the court will consider your wishes, if they can be ascertained, and the closeness of your relationship to the proposed guardian.

In addition, the intended guardian will be required to disclose his or her financial circumstances, abilities and experience, and to present a formal management plan, first for approval by the Public Guardian and Trustee, and then by the court. The guardian will also be subject to regular accounting to the Public Guardian and Trustee and to the court, at least every 3 years, but sometimes as often as annually if required by a beneficiary, the Public Guardian and Trustee or the court.

If no one makes an application to appoint a guardian of property and the Public Guardian and Trustee conducts an investigation and, as a result, has reasonable grounds to believe that you are incapable of managing your property and that prompt appointment of a guardian of property is necessary to prevent serious adverse effects, the Public Guardian and Trustee may apply to the court to become your temporary guardian of property.

The process for appointing a court appointed guardian of property is more expensive and more cumbersome than appointing a Continuing Power of Attorney for Property, and it necessarily involves a government agency and oversight.

A guardian of property has the power to do anything with your property that you can do, except make a Will. The value of a Continuing Power of Attorney for Property is that you can be certain about the choice of person who is to act as your attorney.

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A complete estate plan includes protective measures for when you are still alive, but are not able to manage your own affairs.

A person with mental capacity may appoint one or more attorneys for property to act if, due to accident or illness, the person later comes to lack mental capacity to manage his or her own property.

Choice of the attorney is critical. An attorney can do anything with your property that you can do, except make a Will. You must have complete trust in the attorney and his or her ability to manage your property and financial affairs. The attorney can hire investment, tax or legal advisors. It may be useful to appoint more than one attorney, either to act jointly, or jointly and severally. “Jointly” means all must act together; “jointly and severally” means all may act together or independently. As in the case of estate trustees, it may be useful to provide for an alternate attorney in case one of the appointed attorneys is unable or unwilling to act.

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