Putting One’s Personal Affairs in Order: an Estate Planning Overview – Vol. 6: Powers of Attorney for Personal Care

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.”