Our last blog looked at how overwhelmed Susie, Gwen’s daughter and POA for Property and Personal Care became when Gwen’s needs increased and her capacity diminished. You can read that blog here: https://www.fallowestateslaw.com/post/gwen-s-choices-for-end-of-life-spoken-and-unspoken. Our third and final part in this series to be published next, will examine in more detail how Susie should approach the health care and treatment decisions she will need to make for Gwen.
In today’s blog we will look at the issues that Susie faced in her role as attorney for property in making decisions for Gwen. Specifically, Susie wanted to know if she has legal authority to move Gwen to a long-term care facility.
She was not sure where to begin finding answers so she contacted her lawyer to better understand her roles of attorney for property and personal care.
Her lawyer explained that with regards to personal care and property decisions, Susie was to be guided by Gwen’s expressed wishes, whether verbal or written. She asked whether Susie and Gwen had discussed Gwen’s health care treatment decisions, end-of-life issues, or specifics about living arrangements should she become incapable of caring for herself.
Susie confirmed that she had no idea about Gwen’s fundamental preferences for end-of-life care and treatment.
The lawyer also asked if they had discussed what if any long-term care homes Gwen would prefer. Susie concluded that, regrettably, they had not. Gwen had thought she was doing a good job by giving Susie access to her legal and financial records. They hated to imagine a future decline or incapacity on Gwen’s part so avoided these uncomfortable topics.
Making matters worse, Susie’s discussions with her sisters, Anne, and Margaret, were not helpful, and even caused dissent, because each of them had conflicting ideas about what they thought Gwen would want.
The lawyer reviewed Gwen’s legal documents, including her Continuing Power of Attorney for Property and Power of Attorney for Personal Care, to see if there were any specific instructions regarding health and personal care, end-of-life care, and living preferences. She also asked to see the Will.
Both the POA for Property and Personal Care contained a clause instructing Susie to “allow me to continue living at home as long as is possible and feasible, even if it exhausts my financial resources”.
The Power of Attorney for Personal Care contained a clause requesting that “no heroic measures” be taken to preserve Gwen’s life.
Unfortunately, both clauses were embedded in the lengthy text of the document and neither Susie nor her lawyer could conclude with certainty whether Gwen had specifically instructed her lawyer with regards to either statement. The lawyer explained that these important statements are commonly found embedded in the general text of a POA document.
To get more clarity, they reached out to Gwen’s lawyer hoping that he might have more detail in his file to shed light on Gwen’s wishes for living arrangements and health care.
After a file review, the lawyer concluded that he had ticked the box on his intake questionnaire stating Gwen wished to live at home as long as possible but did not have any further detail on her preference. Nor did he have specific conditions such as the level of physical or mental capacity Gwen would wish to have while living at home or whether living at home should be limited by the degree of burden it created for Susie.
He stated that the “no heroic measures” clause was standard in all his POA for Personal Care documents. He had no further details.
From this, Susie and her lawyer came to the unfortunate conclusion that they could not be sure how to apply Gwen’s written instructions.
Ontario’s Substitute Decisions Act sets out how substitute decision makers are to make property decisions. Following Gwen’s wishes and best interests are the guiding principals in acting as an attorney for property, and Susie was to ensure Gwen’s comfort and well-being.
Susie asked her lawyer how she would know if her mother were mentally capable of making the decision to stay at home or whether she could contradict her increasingly mentally incapable mother’s wish to stay living at home, as it was taking an incredible toll on Susie. She wanted to know if the clauses regarding staying at home would be legally binding, and under what circumstances.
The lawyer explained that in deciding where Gwen should live, Susie was bound to do what she could to respect Gwen’s preferences and wishes if Gwen had the financial resources, and to ensure her comfort and well-being. Gwen had enough money to pay for private care in her own home for at least the next 10 years. Gwen’s doctors said that she could expect to live for 2-3 years, given her cancer diagnosis.
Susie concluded that based on Gwen’s written POA for property document, as well as her mom’s current semi-capable expression of wishes, she would rather stay at home for her lifetime, and also that she should have sufficient financial resources to do so.
Susie left her lawyer’s office feeling better because now she knew how to apply the law to her mom’s situation, but she felt badly that she and Gwen did not have meaningful discussions about living arrangements or the treatment decisions before she lost the ability to do so. Susie resolved to have clear discussions with her children about these issues while she was still capable.