As noted above, if the HCCA governs the decision, there must be a finding of incapacity respecting that decision made under the HCCA. That Act covers treatment decisions, decisions about admission to a nursing home and decisions about personal assistance services in a nursing home. Broader care decisions are governed by the SDA. Although the Act does not contain a definition of “personal care,” what may be covered can be inferred from s. 45, which defines “incapacity for personal care:”
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
So, going back to s. 49, ante, when the Attorney has reasonable grounds to believe the Grantor is incapable of any of the things mentioned in s. 45, he or she has the right to make decisions for the Grantor respecting those matters.
Note however that the triggering of substitute consent is “subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed.” Confirmation means an assessment of capacity by an Assessor qualified under the Act to conduct the assessment, or confirmed as specified in the POA. This is set out in SDA s. 49(2),
A power of attorney that contains a condition described in clause (1) (b) may specify the method for confirming whether the grantor is incapable of personal care and, if no method is specified, that fact may be confirmed by notice to the attorney in the prescribed form from an assessor stating that the assessor has performed an assessment of the grantor’s capacity and has found that the grantor is incapable of personal care.
Some lawyers provide that the Grantor’s personal physician may confirm the Grantor’s incapacity. Respectfully, I submit this is not a good idea. In my experience, few health practitioners understand the concept of “capacity” as it relates to treatment decisions, let alone as it relates to personal care generally. Further, the Grantor may have his or her particular family physician in mind, but there is no guarantee that doctor will be available or willing to assess capacity when the need arises.
Conversely, failing to provide a means of confirming incapacity for personal care leaves your client at the mercy of his or her Attorneys. While they may act in good faith, not infrequently they act based upon their view of the Grantor’s best interests, rather than his or her values, beliefs and lifestyles. Do you really want your children deciding, without any safeguards at all, when they should move you into a retirement villa?