Living Will versus POAPC: two very different tools

Clients frequently ask how a Power of Attorney for Personal Care (“POAPC”) works and why lawyers recommend it instead of (or in addition to) a “living will.” This article explains:

• the legal difference between a living will (an instruction directive) and a POAPC (a proxy directive);
• how and when a POAPC is created, comes into force, and can be revoked;
• the authority—and the limits—of the person you appoint as your attorney for personal care; and
• what happens if no POAPC exists.

All statutory references are to Ontario’s Substitute Decisions Act, 1992 (“SDA”) and Health Care Consent Act, 1996 (“HCCA”) unless noted otherwise.

Feature	Living will (“instruction directive”)	POAPC (“proxy directive”)
What it does	Lists treatments you would accept or refuse in stated circumstances.	Appoints a trusted substitute decision-maker and may also set out your wishes.
Legal status	Not defined in Ontario legislation; only persuasive guidance to clinicians.	Defined and recognised in the SDA; health-care providers must accept the attorney’s lawful directions.
Can anyone act for you?	No. It gives no decision-making authority.	Yes. Your attorney steps in automatically when you lack capacity (or on a specified “trigger”).
Best use-case	Very specific, short-term instructions (e.g., during planned surgery).	Comprehensive, long-term planning; covers all six personal-care areas (health care, nutrition, shelter, clothing, hygiene, safety).

Key takeaway: a POAPC is usually the more practical vehicle because it combines instructions and a legally empowered decision-maker.

Creating a valid POAPC

1. Who can grant one?
   • Must be 16 or older and able to understand that the chosen attorney has genuine concern for your welfare and appreciate that the attorney may need to decide for you in future (SDA s. 47). 
   • You can have capacity to make a POAPC even if you are already incapable of making certain treatment decisions. 
2. Form and witnessing
   • Two witnesses are required; they cannot be your spouse/partner, your attorney, a minor, or otherwise disqualified (SDA s. 48).
   • Since 2020 you may sign by video conference if one witness is a lawyer or paralegal and signatures are contemporaneous (SDA s. 3.1).
3. Special (optional) clauses – s. 50
   • Use of force to admit you for assessment or treatment, or waiver of your right to review a finding of incapacity, can be authorised but only if strict post-execution statements by you and a capacity assessor are completed within 30 days.
4. Multiple or alternate attorneys
   • You may name more than one attorney (jointly or successively) and should always appoint at least one alternate. 

When does the attorney’s authority begin?

A POAPC “springs” into effect only when you lack capacity to make the particular personal-care decision:

• Automatic route – if the decision concerns treatment, admission to a care facility, or personal assistance services governed by the HCCA, the statute itself recognises the attorney. 
• Reasonable-belief route – for all other personal-care matters, the attorney may act when he or she has reasonable grounds to believe you are incapable—unless you inserted a triggering event (e.g., written opinion of your family doctor). Poorly drafted triggers can render the POAPC useless, so clarity is essential. 

Scope of the attorney’s powers and legal limits

Area of decision-making	Examples of what the attorney may do
Health care	Consent to or refuse surgery, medication, withdrawal of life support.
Nutrition & hydration	Choose diet, feeding method (tube vs. oral).
Shelter & safety	Arrange home-care services, select a long-term-care home, approve safety measures.

Key cases: The Supreme Court confirmed in Cuthbertson v. Rasouli that withdrawing life support is “treatment,” so physicians need the attorney’s consent or a CCB order to stop it. 

Duties and liability of the attorney

• Fiduciary standard – act diligently, honestly, in good faith, and only for the grantor’s benefit.
• Consultation – as far as reasonable, seek the incapable person’s current wishes, and consult supportive family/friends.
• Record-keeping – keep notes of decisions and reasons; the CCB or a court may review them.
• Compensation – the SDA is silent; attorneys may be paid if the document allows or a court orders it.
• Oversight – Any “interested person,” hospital, or the Public Guardian & Trustee can apply to the CCB or Superior Court to review conduct, force an accounting, or replace the attorney.

If there is no POAPC

The HCCA supplies a default hierarchy for treatment decisions: spouse/partner → children → parents → siblings → other relatives. However, there is no parallel rule for property management, and the family may need a court-appointed guardian—time-consuming and expensive. Planning with a POAPC (and a separate Continuing POA for Property) avoids that gap.

Changing, revoking, or ending a POAPC

Action	Requirements
Revocation	While capable, sign and date a written revocation in the presence of two witnesses who meet the same eligibility rules as for execution.
Automatic termination	Occurs if (i) the attorney dies, becomes incapable, or resigns and no alternate exists; (ii) a court appoints a guardian; or (iii) you sign a new POAPC (unless the documents state otherwise).
Revoking special “use-of-force” or waiver clauses	Requires a fresh capacity assessment and prescribed statement within 30 days before revocation.

DISCLAIMER: This article provides general information only and does not constitute legal or tax advice. Readers should consult qualified professionals for guidance tailored to their specific circumstances.