My mother recently gave me some papers circulating in her community – a document titled “A Power of Attorney.”

She told me that “everyone in the condo” was signing it. They had heard that the rules about what happens to the financial affairs of people who become mentally incompetent had changed, and that it was smart to sign such a form.

I was startled to discover that this form included a living will. And not just any living will, but one which called for the removal of food and water under a wide range of circumstances.

The Ontario government last year changed the rules concerning how the financial affairs and health care of mentally incompetent people are handled. The Toronto Sun leapt into the fray with columns suggesting that the government would now take over the finances of mentally incompetent persons and squander their assets. This has caused much concern, and no doubt, as a result, the scene at my mother’s condo is being repeated in communities around the province.

It’s worth taking time to review just what the changes which will come into effect next year actually mean.

Power of Attorney for Property

Under present Ontario law, if you become incapable of managing your property, only a judge could appoint someone to act on your behalf if you do not already have power of attorney. Such an application to court usually requires hiring a lawyer and is expensive and time-consuming.

Under the new law, should you become incapable, the Public Guardian and Trustee automatically takes control of your assets. Instead of applying to a judge, one of your relatives would apply to the Public Trustee. That person will be required to post security, create a management plan and file an annual statement of accounts with the Trustee’s office. Such requirements would be costly and burdensome.

However, this can be avoided by signing a Power of Attorney for Property now. If you become mentally incompetent, it enables the person you appoint to immediately make your financial decisions, before the Public Trustee intervenes.

Power of Attorney for Personal Care

By signing a Power of Attorney for Personal Care, you appoint someone to make decisions about your health care, when you are unable to make such decisions yourself.

Under the new legislation, a physician can only give you treatment if you are fully competent to understand what is proposed and have given your consent. If you are unconscious, or if you have Alzheimer’s disease, or any other condition which disables your mind, the doctor is required to notify a hospital board, which then takes a series of steps to determine if you are competent and may appoint someone to speak for you. The medical profession itself has expressed its opposition to this bureaucratic scheme.

However, if you have signed a Power of Attorney for Personal Care, this process is never started. From the moment you become incapable, the person appointed by you can speak on your behalf.

One of the dangers of this new legislation is that it also gives you the power to make binding instructions about your care – to create a Living Will. There are many problems attached to this which cannot be dealt with fully here.

Today people have been made to fear that they will be plugged into machines that will keep them alive forever. Many believe it wise to issue instructions which state that certain treatments not be given. However, in the hospital of tomorrow, given declining health budgets and the increasing number of elderly, the real danger will be that people are unable to obtain necessary treatments.

In writing out instructions against certain treatments you seal your fate in the future. Under the new legislation, if a patient has written out instructions against certain treatments, those treatments simply cannot be given.

Many people are confused about the new legislation. If my mother’s experience is any indication, we must ensure that, in the rush to take care of their financial affairs, people do not end up signing a document which may have catastrophic effects on their future health care.

Both documents involve signing enormous power over your life to other people. They should not be signed without first getting sound advice. This is just a cursory look at a complex issue. If you need more information, you can contact me through The Interim at (416) 368-0250.