Sarah Cooling
Sarah Cooling is a lawyer with the Northumberland Community Legal Centre in Cobourg, but locally she is better known as a co-owner of Moody’s Bar and Grill. Last month she delivered a presentation at the Millbrook Library about a few of the topics she deals with in her day job: powers of attorney.
She began her presentation by explaining the two kinds of Powers of Attorney(POA). Big life decisions break into two categories: those about stuff and those about health or personal care. The POA for Property deals with possessions and the one for Personal Care addresses shelter, health care, nutrition and safety. She strongly recommends that everyone who has children or is a homeowner should have these documents, which pass on decision-making authority to a third party in place. The key to deciding who should receive the authority to making critical decisions on your behalf boils down to trust.
A POA for property addresses all property, including bank accounts, real estate, personal belongings. Unless there is a clause that indicates that it only comes into effect when you are incapable, it becomes enforceable the moment it is signed. Cooling noted that abuse of this power has resulted in significant financial loss, including the loss of a home, by people authorized under this legal form. Capacity is a legal determination after an evaluation of that person’s ability to understand the issue at hand and the consequence of the decision under consideration. For property, capacity is established by a lawyer, in personal care issues it is established by a physician. A person can be deemed capable for their own health care decisions but incapable for decisions about property. A further complication is that capacity can fluctuate: an intoxicated person is not capable but once sober, that assessment could be reversed. A POA for Personal Care only comes into effect when the person becomes mentally unable to make personal care decisions for themselves.
Occasionally law firms provide free legal clinics to help people prepare these documents, but to be effective POA’s should be prepared by a lawyer. Cooling advises against using kits for these documents that are available online, in bookstores, pharmacies or newsstands, as many of them are based on US law and are not necessarily valid in Ontario. She also advised that “Living Wills” which outline the client’s health care wishes in future circumstances as they are not valid in Ontario.
The exception is a Do Not Resuscitate (DNR), which is a medical order indicating that the person prefers not to receive certain elements of resuscitation including defibrillation or mechanical breathing apparatus. An official DNR form is available on the provincial government website that is used by hospitals and paramedics to determine what procedures to follow in the event of an emergency. Without these instructions, health care practitioners are obliged todo everything they can to keep the patient alive at that time.
Cooling outlined the process of selecting substitute decision makers for health care in the event the person does not have a POA for Care in place and is not able to make their own decisions. There is a priority list of alternative decision makers outlined in the Health Care Consent Act and the person with the highest ranking on that list is given the decision-making authority.
Some people are reluctant to contemplate difficult health and end of life decisions, but having documents in place that pass decision-making authority to those we trust can be a liberating process. It encourages discussions about health care preferences that can take some of the stress and anxiety out of what is often a very difficult and guilt-laden period of time. This presentation highlighted the benefits of doing the homework and being prepared, both for the individual and the loved ones they leave in charge.