responsibility for making certain decisions in the absence of an official
declaration that the grantor is incapable of making personal care decisions.^11
In all cases, it is necessary to review the provisions of the SDA to determine
whether a particular document is a valid power of attorney, when it takes effect
and what powers it grants to the attorney and what, if any, restrictions may be
placed on the attorney’s powers.^12
Powers of attorney have the advantage of being controlled by the grantor. As
long as a person understands what it means to give another person the power to
make certain types of decisions for them and they have a basic understanding of
the nature and extent of their property, they are most likely capable to grant and
revoke a power of attorney.^13 Even if a person is not capable to make the specific
types of decisions they are asking the attorney to make on their behalf, they may
still be capable to decide who should be making those decisions for them. They
may also remain capable to revoke a power of attorney or to decide that they
would rather have another person making decisions for them. For instance a
person who may lack capacity to manage their property may still be capable to
revoke a power of attorney and appoint a new attorney for property.^14
Since the grantor is able to select to whom they grant a power of attorney, it is
assumed that the person chosen is trusted by the grantor and that the attorney is
someone willing to work co-operatively with the grantor to support and protect
them. Powers of attorney therefore offer people a way to exercise a degree of
control over who will make decisions for them should they become incapable to
do so, even to the point of removing an attorney they are no longer happy with –
at least as long as they remain capable to do so.^15
(^11) See Substitute Decisions Act, 1992, SO 1992, c 30, s 49(1). For more detail see Law Society of
Upper Canada, “The Annotated Power of Attorney for Personal Care” (1 March 2005). 12
13 See Powers of Attorney Act, SO 1990, c P-20.^
14 See Substitute Decisions Act, 1992, SO 1992, c 30, s 8(1).^
15 See Substitute Decisions Act, 1992, SO 1992, c 30, s 8^
Ibid