It takes guts to be a power of attorney: you may have to wade into red tape and bureaucracy, make life-and-death decisions, and question medical and conventional opinions to get the job done.
Often the role of power of attorney (POA) is thrust upon us with little or no choice. Sometimes this role can be relatively uneventful, requiring no intervention. Other times, it becomes a considerable effort with a significant workload. When you accept this powerful and extremely responsible role, there is no way of knowing where the path will take you. There will be legal and financial matters to sort out and problems to delve into, and you’ll never know when or where you will be required to intervene on the person’s behalf. One thing is for sure: you’ll have a legal obligation to make decisions in a way that the person would have done for themselves. Having been personally responsible for my parents’ POA for both personal care and property, I can testify to the seriousness of the responsibilities. Both of my parents suffered from progressive, complex and debilitating diseases. I had very little help taking care of them and made mistakes, but my devotion and complete understanding of my parents’ wishes provided me with the guidance, strength and fortitude required.

In my geriatric care management practice, no two situations are alike. Many of my clients (usually the sons and daughters of the elderly person) seek objective care advice from me, while seeking medical advice from doctors. They may require reassurance and assistance as they’re forced to ask difficult and probing questions of medical professionals and as they try to balance medical and personal care for their loved one.

The role of POA can extend to cover both property and personal care. Let’s look at these two roles in more detail.

Power of attorney for property
The POA for property allows the person responsible for this role to pay bills, cash cheques, sell property and make other financial decisions. In the absence of a POA, no one else has the automatic right to manage a person’s property—not even a spouse. This can mean that no financial decisions or actions can take place. Another way to handle this situation is to appoint a guardian of property through the Public Guardian and Trustee. This may be necessary if the person becomes incapable and has no pre-existing continuing POA for property.

Legally, the POA for property must
  • keep all financial accounts separate from their own
  • never borrow or use the incapable person’s money
  • maximize the quality of life of the incapable person. Their comfort and well-being must come first.
  • manage the property in a way that accommodates the incapable person’s personal care wishes. For instance, the attorney’s financial decisions may override personal decisions but only if there would be negative consequences with respect to property.
  • recognize that they are not obliged to preserve the incapable person’s estate for inheritance
  • keep the incapable person informed to the extent of their understanding. Participation in decisions by the incapable person is encouraged.
  • keep other parties informed and participate in these decisions
  • be aware of the content of the will and make provision for its execution
  • recognize their own authority to open and close bank accounts, re-direct pensions, deal with investments, pay bills, buy goods and services, collect debts, sell land or dispose of personal belongings, or maintain or sell property
  • maintain a record of all transactions
  • keep a record of assets, money, investments, liabilities and compensations

As a geriatric care manager, my role is often to quantify the cost of quality-of-life options for the POA. Most care options are driven by what the elder person can afford. Usually, a cost-effective compromise can be found; however, on many occasions, the method of implementation is extremely important. For instance, transfer to a nursing home may be a cost-effective option; however, the transfer can be carefully organized to minimize the negative effects. The existing private staff or family caregiver may accompany the elder person to the retirement residence or long-term-care facility and provide support during the day. The preparation of the room, incorporation of familiar belongings, and a gradual introduction to the dining room and other residents needs to be sensitively orchestrated.

Power of attorney for personal care
Preparing a POA for personal care is an important step in planning for mental incapacity, as it provides for a transfer of responsibility to a designated decision-maker. This may involve decisions about health, treatment, housing arrangements, eating habits, safety, clothing and hygiene. In essence, the POA becomes a substitute decision-maker.

Decisions need to be made carefully and sensitively. The POA for personal care can also be involved in making end-of-life decisions. Advisors and medical professionals will be able to offer assistance at this difficult time to help the POA feel supported and minimize stress for the family. All activities and funds spent on health care supplies should be documented by the POA to avoid later disputes from other parties.

Legally, the POA for personal care must

  • explain the powers and duties of the POA to the incapable person
  • encourage the incapable person to participate in the decisions
  • seek to foster the incapable person’s independence
  • choose the least restrictive and intrusive course of action
  • try to foster regular contact between the incapable person and supportive family members and friends
  • consult supportive family members and friends who are in regular contact with the incapable person and their caregiver
  • keep records of decisions that are made on the incapable person’s behalf
  • make reasonable efforts to follow any wishes or instructions of the incapable person
  • not use monitoring devices, confinement, or physical or chemical restraints on the incapable person or consent to their use, unless doing so is essential to prevent serious bodily harm to the incapable person or allows the incapable person greater freedom or enjoyment

Advice for power of attorneys
POA duties are clearly spelled out in the Substitute Decisions Act 1992 and the Health Care Consent Act 1996. Legally, the POA takes effect when the person is designated incapable, which is usually determined by a physician or a capacity assessor. In most cases, the attorney plays a guiding role long before incapacity is determined. However, there is often no formal process for deciding when a person has become incapable. Providing all the parties (i.e., bankers, physicians, lawyers, etc.) are co-operative, incapacity need never become an obstacle.

Professional assistance: The POA for both property and personal care should seek advice from professionals. This may include accounting, legal and investment advice. Seeking medical and geriatric care management advice is also recommended.

Confidentiality: The POA for both property and personal care must only disclose information to concerned parties, in order to fulfill their duties. As a geriatric care manager, my authority to function is derived from the POA. Therefore, the care manager must not be judgemental of the POA’s decisions but assist that person in fulfilling the wishes of their loved one. This means that every situation is unique. The care manager’s loyalty and undivided attention, usually at the POA’s convenience, is essential if the geriatric care manager’s role is to be effective.

Carol Edwards, SRN, RN, GCM, is the President of Careable Inc Healthcare Consultants. She can be reached at 416-362-9176.