Powers of Attorney

Powers of Attorney are important documents to execute to ensure your wishes are followed in the event of your incapacity and to minimize the risk of family disputes and legal battles.

Our Services

At Lisa Feldstein Law Office we draft comprehensive Power of Attorney documents.

We also provide advice and representation for ancillary matters, such as:

• Determining whether powers of attorney are valid
• Applying to court to have improperly executed powers of attorney declared effective
• Providing legal opinions about who is or would be the substitute decision-maker
• Explaining legal obligations to attorneys / substitute decision-makers
• Negotiating disputes regarding interpretation of a Power of Attorney
• Assisting with revocations of Powers of Attorney
• Mediating family disputes involving Powers of Attorney
• Providing advice to family members in conflict with relatives or health care providers
• Representing clients at the Consent and Capacity Board

What is a Power of Attorney?

A Power of Attorney is a legal document that appoints another person to act on your behalf in the event you are incapable of doing so yourself. You can also specify particular wishes that you would like to have respected.

There are two kinds of Powers of Attorney:

1. Powers of Attorney for Personal Care
2. Continuing Powers of Attorney for Property

What is a Power of Attorney for Personal Care?

A Power of Attorney (“POA”) for Personal Care is a document that appoints one or more persons would make care decisions for you in the event you became incapable of doing so. The decision-maker is called an “attorney”, but need not be a lawyer. If an individual does not designate an attorney, then the law automatically designates who is the substitute decision-maker.

A POA for Personal Care can also specify particular care-related decisions. It can provide guidance to the attorney who may be charged with decisions relating to your health care, safety, clothing, hygiene or nutrition. A POA is different from a will in that it applies to an individual while that individual is still alive.

A POA for Personal Care is famously known for specifying decisions related to the end-of-life, such as whether to remove life support for a person in a persistent vegetative state. While specifying end-of-life decisions is incredibly important, a POA for Personal Care can be much broader.

Consider the following scenarios:

• A young engaged couple have been dating for 10 years and will be moving in together after their wedding in 6 months. They want to ensure that in the event anything happened to either of them, they would be each others’ attorneys for personal care decisions.
• A woman with early stage Alzheimer’s knows that in the future she might lose her ability to make her own decisions. She wants her children to know that it is her wish to stay in her own home (as opposed to a long-term care home) for as long as possible.
• A man with strong religious beliefs directs his attorney to consider his kosher diet (a care decision related to nutrition).
• A person with Schizophrenia knows that the antipsychotic medication he is often prescribed has terrible side effects. In the event his illness causes him to lose capacity to make treatment decisions, he does not want his attorney to consent to that particular medication.
• A young person does not get along with his or her father and wants to ensure any care decisions would be made by the mother only.
• A single woman who lives with her cats wants to ensure that if she is placed in a home, that it is a pet-friendly home that will allow her cats. If that is not possible, she wants a particular friend to become her cats’ new owner.
• A married woman knows that her husband does not respect her decision to donate her organs upon her death. She wants her wishes to be clearly documented.
• A couple has 3 children and know that the children do not get along with one another. Therefore, appointing them as joint attorneys would be problematic. They want to ensure that their daughter who is a nurse has the sole authority for making decisions, but still want her to consult with the other 2 siblings about any end-of-life decisions.

In general, a POA for Personal Care is important to draft if:

• you wish to have a particular person make care decisions on your behalf
• you wish to avoid a particular family member making care decisions on your behalf
• you want to assist your loved ones if and when they have to make difficult decisions for you
• you have specific thoughts about how you envision your end of life care
• you have particular wishes relating to your health care, safety, clothing, hygiene or nutrition
• your family would not know your wishes if you were not able to communicate
• you want to have some control over the care you will receive while you are able to do so
• you are concerned that if something happened to you, your parents or children would be unable to cooperate and make decisions together

Sadly, life is unpredictable and no one knows whether they will ever need a POA for Personal Care. However, at the time that it is needed, it is typically too late to execute one. All adults should have a Power of Attorney for Personal Care in place.

What advantage is there to having a health lawyer draft my Power of Attorney for Personal Care?

As health lawyers we provide advice and representation in situations where a person’s Power of Attorney for Personal Care is being used. We see the consequences of vague and poorly drafted documents. We represent clients before the legal tribunal that makes binding decisions about these documents. We know what questions are asked and what information they are looking for to guide them in their decisions.

As specialists in Family Health Law™, we regularly give advice to family members dealing with conflicts relating to Powers of Attorney. At times our clients wish their loved ones had included particular clauses because it would have avoided significant stress and family conflict and, in some cases, litigation.

As health lawyers we have a unique advantage in that we do not only draft the documents – we also advise clients in situations in which the documents are utilized. We apply that experience to ensure our clients’ Powers of Attorney for Personal Care are well-drafted, customized and comprehensive.

What is a Continuing Power of Attorney for Property?

A Continuing Power of Attorney for Property allows an individual to appoint who would make financial decisions on his or her behalf in the event that person is incapable of doing so. It allows an individual to document specific wishes and provide directions to the attorney, such as the following:

• Giving wedding gifts
• Funding children’s education
• Selling a property
• Investing funds
• Dissolving one’s business
• Paying for a retirement home or home care
• Giving a spouse access to your bank account

There is significant freedom with respect to the conditions and restrictions that you may include.

At times a POA for property and personal care can conflict; for example, when making decisions about whether to pay for a long-term care home or home care. There are therefore important legal considerations to ensure your documents do not conflict, that your wishes are followed, and that your attorney is not put in a very difficult position (which could involve litigation if not managed appropriately).

Why is a Continuing Power of Attorney for Property important?

The law does not automatically appoint your spouse or other relatives to make decisions about your property in the event of your incapacity. Rather, without a Power of Attorney, your loved ones will likely have to apply to become your legal guardian if they need to access your money or otherwise manage your financial affairs. Applying to become a guardian is a long and often expensive process (especially if there is a dispute about who should be your guardian). Executing a Power of Attorney for Property is the best strategy to reduce financial strain, stress and inconvenience to your family.

POA Validity

Sometimes a POA is not signed or witnessed in accordance with the law. We can help you determine if a POA is valid.  We can take steps such as applying to court to obtain an order that, despite technical errors, the POA can be recognized as valid.

POA Interpretation & Advocacy

The interpretation of a POA can be complicated, particularly if it is vague, poorly drafted or it is unclear whether the individual contemplated the present circumstances. At times the attorney is compelled to follow the individual’s instructions but does not want to do so because the instructions may not have considered the exact scenario or the course of action indicated is no longer in the person’s best interests. Sometimes the attorney struggles because to follow the directions means to withdraw life-sustaining measures, but to ignore them is to violate the law. A health care professional may refuse to follow a POA if he or she has a different interpretation than the attorney. Family members often disagree about who ought to have been appointed as the attorney or what is in an individual’s best interests.

These disputes can lead families and patients’ health care providers to a specialized health tribunal called the Consent and Capacity Board. For example, the health care practitioner who proposed the treatment might ask the Board to determine whether the decision-maker is complying with his or her legal obligations as a substitute decision-maker. The substitute decision-maker may lose his or her power to make decisions.

We represent families at the Consent and Capacity Board. At the same time, we are cognizant of the fact that the other party may be the patient’s health care provider and an overly adversarial approach is often counter-productive. We are skilled at striking the balance between effective advocacy and preservation of relationships.