Power of attorney for personal care

Every province has its own laws and regulations relating to powers of attorney for financial matters, and several provinces now have legislation allowing you to appoint an agent or attorney to make “personal care” decisions as well. Unlike a power of attorney for property, a power of attorney for personal care generally comes into effect only after mental incapacity. A power of attorney for personal care may govern such matters as medical treatment, health care, nutrition, shelter, clothing, hygiene and safety. The person named in your power of attorney for personal care does not have to be the same person named in your power of attorney for property, however, you can designate the same person if you wish.

A power of attorney for personal care may include instructions normally dealt with in a “living will” (also known as an “advance medical care directive” or “health care directive”). A living will can convey to your attorney, as well as family, friends and doctors, your personal philosophy and views regarding health care and your wishes regarding life-prolonging treatments in the face of terminal illness. Living wills have legal effect in some provinces, but their primary pose is not to serve as a legal document, but to give direction to family and caregivers about your wishes. A living will should be reviewed periodically and revised as your personal circumstances change with time.

Surveys of Canadian doctors and nurses working with the critically ill indicate that medical staff often have no clear knowledge of their patients’ wishes when it comes to treatment choices, especially those that could possibly prolong life. In the absence of clear directions, much seems to depend on the caregivers’ personal feelings, age and experience. The Canadian Medical Association has endorsed a policy supporting living wills and most doctors favour them.

Given the complexities involved and in order to properly deal with such issues as choosing your attorney, assessing relevant risks, as well as taking precautionary measures, professional legal advice is recommended in this regard. The comments offered here are meant to be general in nature and are not intended to provide legal advice. In addition, legislation in this area is continually changing. Before taking any action, you should seek legal advice to ensure that your planning is appropriate to your personal circumstances and that it is effective in the jurisdiction in which you reside.

This information is excerpted from Merrill Lynch’s Special Report “Giving someone the power to act on your behalf”. For a complete copy of this report please contact your Merrill Lynch Financial Advisor.


The information contained in this tip was obtained from sources believed to be reliable, however, we cannot represent that it is accurate or complete. Merrill Lynch Canada Inc. is not a tax advisor and we recommend that clients seek independent advice on tax-related matters.

Financial Tips courtesy of Merrill Lynch Canada Inc.