In Saskatchewan, there are important distinctions between the appointment and duties of a power of attorney, health care proxy, and substitute health care decision maker. An awareness of these distinctions can assist you in planning for unpredictable and emergent circumstances.
What is a Power of Attorney?
A Power of Attorney (often abbreviated "POA") is a legal document appointing someone else with authority to make personal decisions, property decisions, or (more commonly) both types of decisions for you, the grantor, during your lifetime.
Personal decisions touch on matters such as where you live, what kind of assistance you receive in your home and whether you attend certain events. Property decisions include decisions directly affecting your property or financial circumstances. A Property power of attorney generally has the authority to sell your home and pay your bills. Some decisions have both a personal and property component. For this reason, most people will choose to appoint the same person(s) to act as both personal and property power of attorney.
A power of attorney's authority will have some limitations. The POA document itself may limit the attorney's authority. Further, The Powers of Attorney Act, 2002, specifically limits a power of attorney's authority in several ways, including:
- A power of attorney's authority does not include the power to make health care decisions governed by The Health Care Directives and Substitute Health Care Decision Makers Act, 2015;
- A power of attorney must exercise their authority honestly, in good faith, in the best interests of the grantor, and with the care that could reasonably be expected of a person of the attorney's experience and expertise; and
- A power of attorney must take into consideration the wishes of the grantor in carrying out their duties whenever possible.
What is a Health Care Directive?
A Health Care Directive (often abbreviated "HCD") is a document providing instructions regarding your health care decisions. It can also appoint someone (called a "proxy") to carry out these instructions in the event you lack capacity to make a health care decision for yourself.
Health care decisions include any decisions to consent, refuse consent, or withdraw consent to a physical or mental treatment designed for therapeutic, preventive, or palliative purposes.
Health care decisions about day-to-day treatment may be made by a person considered to be meeting the definition of "caregiver" if you do not have capacity to make day-to-day treatment decisions and your named proxy is unavailable. People designated as caregivers include, but are not limited to, your power of attorney, a person authorized in writing by your proxy, or your nearest relative.
What is a Substitute Health Care Decision Maker?
A substitute health care decision maker will generally be asked to make a health care decision for you if you lack capacity to make your own health care decision and:
- You have not made an HCD addressing the health care decision in question; and
- Either
- You have not appointed a proxy in your HCD; or
- Your representative is unavailable or unwilling to make a health care decision for you.
Subject to some exceptions, your substitute health care decision maker will be your nearest relative, as defined by The Health Care Directives and Substitute Health Care Decision Makers Act, 2015 ("HCD Act").
The table below summarizes the information presented in this article to aid you in comparing the appointment and roles of each decision-maker:
Conclusion
There are important distinctions between the types of decisions a power of attorney, health care proxy, and substitute health care decision maker can make for you and how each type of decision maker is appointed or chosen. We encourage readers to consult with a legal professional to discuss these distinctions and determine whether making a POA or HCD can assist you in planning for your future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
