Are Halachic Powers of Attorney for Personal Care Binding in Ontario - Part Two
Author: Charles B. Wagner
This is a continuation of the article in Part One
Substitute Decisions Act.
Formalities of Execution
Under section 46(1) Substitutes Decisions Act 14, A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor's behalf, decisions concerning the grantor's personal care. As the two precedents were created in contemplation of jurisdicitons other than Ontario it is incumbent on local solicitors to ensure that they comply with the technical requirments of our provincial legislation.
In Ontario, in order to have the capacity to appoint someone as an attorney for personal care or to give instructions in a living a will, the grantor must
- be at least 16 years of age;
- appreciate that the attorney may have to make personal care decisions for the person;
- have the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; and
- appreciate that the person may need to have the proposed attorney make decisions for the person.
Who may not be the attorney? In Ontario any person who provides health care to the grantor for compensation; or provides residential, social, training or support services to the grantor for compensation cannot be the attorney. The exceptions to this rule are the grantor's spouse, partner or relative.
In the context of a Will, non compliance with the formalities of execution could be fatal. However, with respect to a power of attorney/health care directive the legislation provides that a court may declare the document to be valid even if the above formalities of execution were not enforced. Nevertheless, it would imprudent to ignore these formalities and risk challenges to the enforceability of the power of attorney for personal care. The formalities of execution in Ontario include:
- the necessity of having two witnesses;
- witnesses may not be the attorney's spouse or partner, the grantor's spouse or partner, a child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child, a person whose property is under guardianship or who has a guardian of the person, a person who is less than eighteen years old.
- A person may not act as an attorney under a power of attorney for personal care, unless the person is the grantor's spouse, partner or relative, if the person, provides health care to the grantor for compensation; or provides residential, social, training or support services to the grantor for compensation.15
- s. 46 (4) of the act provides that if the power of attorney names two or more persons as attorneys, the attorneys shall act jointly, unless the power of attorney provides otherwise. Both precedents being examined provide that in End of Life situations the rabbi's decision will be determinative and essentially appoints the rabbi as the power of attorney under these circumstances.
- Capacity issues for the grantor are the same whatever the form of the Power of attorney for personal care and section 47(1) must be complied with.16
Is the SDM a fiduciary? If so, are the precedent powers of attorney for personal care void because a fiduciary may not delegate?
A fiduciary is not permitted to delegate the authority with which he/she has been entrusted.17 If the power of attorney over personal care is a fiduciary then does the direction to the attorney to "consult and follow"18 constitute a delegation of fiduciary duty? If so, does the requirement invalidate the halachic powers of attorney?
Once could argue that the SDM for personal care is not a fiduciary. The argument would go something like this. The Substitute Decisions Act states that an attorney for property is a fiduciary19 . There is no comparable statement in the act regarding an attorney for personal care. Both the inability of a POA for personal care to benefit himself/herself from the property of the incapable person20 and the absence of a comparable provision under the Act describing the POA for personal care in that manner means that the latter is not a fiduciary.
I would submit that the better view is the line of cases that suggest that the power of attorney over personal care is a fiduciary. Arguably, there is a comparable common law duty upon an attorney for personal care. For example, the courts have found that Churches and doctors were fiduciaries under certain circumstances for people under their care even though there was no personal benefit from breaches of the fiduciary duty.21
The position of Justice Sopinka in the Lack Mineral Case 22 sets out a test as to whether a fiduciary relationship exists between a Substitute Decision Maker and an incapable person. Sopinka J. wrote
- The fiduciary has scope for the exercise of some discretion or power.
- The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.
- The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. " 23
The SDM for personal care certainly has discretion, may exercise it to affect the beneficiary's practical interests and there is no one more peculiarly vulnerable than an incapable person for whom life sustaining services may be withdrawn. So for the balance of this discussion let's work with the assumption that the SDM is a fiduciary.
Does the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation? Perhaps it does. Does that mean that the Power of Attorney is invalid?
Rogers, Re (1928), 63 O.L.R. 180, [1929] 1 D.L.R. 116 (Ont. H.C.) is the only Canadian case I found where the courts reviewed the validity and enforced an express clause in the trust instrument which granted the trustee authority to delegate a particular power. The case also set out the conditions under which the trustee position could be delegated. In Waters; Law of Trusts in Canada the learned professor points out that the modern description of such as person is a "protector" who owes a fiduciary duty of loyalty.
Professor Waters further points out some of the issues to be considered in regards to the naming of a Protector.
Successor Must Be Named. Professor Waters points out that should the named protector (in our scenario the rabbi) predecease the grantor of the attorney then there can be no successor unless "...the instrument gives the personal power to some other person in the circumstances that have happened...". Both the precedents being reviewed comply with this requirement.
Roles of Fiduciary. If the protector has a fiduciary duty, the instrument must provide for the following:
- Succession. - Both precedents deal with this issue.
- Capacity. - Neither of the precedents deal with this issue.
- Retirement. - Both precedents deal with this issue.
- Removal - Both precedents deal with this issue.
- Duties and powers - Both precedents deal with this issue.
- Indicate what will happen if the Protector is unreasonable, obstructive, absent, or negligent. - Neither of the precedents deal with this issue.
Both the RCA and Agudath Israel powers of attorney over personal care do not deal with removal of the rabbi or indicate what to do if he is unreasonable, obstructive, or negligent. For example, what happens if the rabbi so named leaves the faith or becomes incompetent to render halachic decisions for any other reason. The attorney who wants to honour the grantor's wishes would not want to be bound by that person's interpretation of halacha. I do not know whether the courts would invalidate a power of attorney for its failure to deal with these issues. Clearly, the wishes of the Grantor would still be evident. Nevertheless, it behooves those using the precedent halachic powers of attorney to revise them to deal with those issues.
Conclusion:
The two precedent halachic living wills that were reviewed herein were not drafted with Ontario in mind. Nevertheless, they address most of the substantive issues relevant to our jurisdiction. These powers of attorney both crystallize and clarify the wishes that the person who executes such a power of attorney wants decisions made in accordance with strict Orthodox Jewish law. They both provide specificity of what should be done in all circumstances by saying that Orthodox Jewish law governs and that the articulation of that law should be done in consultation with a named rabbi. As a practical matter, where such specificity exists it should be sufficient to comply with section 21 of the Health Care Consent Act. However, were I to draft a power of attorney for personal property, I would not adopt the precedents holus bolus, but would address the issues raised above.
That being said, if the definition of "treatment" in the Health Care Consent Act does not include withdrawal or refusal to treat a patient then nothing inserted into a power of attorney for personal care can prevent a doctor from refusing to treat a patient Remember, in Scardoni, Justice Cullity purposefully declined to address that issue. We will have to wait until the courts adjudicate on whether withdrawal of services falls into the meaning of "treatment" as defined by the Health Care Consent Act. Based on the obiter in Scardoni and the stated purposes of the Act it is more probable that a court would include the withdrawal or withholding of services as part of a treatment plan and require consent from a patient or his/her SDM to make that decision.24
We live in a very litigious world where people of good faith often disagree. Too often the disputes cannot be resolved and end up in court. This is especially so when family members are at odds with doctors and have to deal with sensitive issues relating to terminally ill patients in inexorable pain. The chances for conflict and confusion are reduced when competent solicitors familiarize themselves with the issues so that care and precision is taken in the drafting of powers of attorney. Drafting this type of power of attorney can be very complicated. Despite the temptation to jump to conclusions, it would be a mistake to substitute this review of the topic for substantive legal advice. For those considering this option, there is no replacement for a competent solicitor's own research, analysis and judgment.
14 Substitute Decisions Act, 1992 S.O. 1992, CHAPTER 30
15 section 46(3) Substitute Decisions Act, 1992 S.O. 1992, CHAPTER 30
16 47. (1) A person is capable of giving a power of attorney for personal care if the person,
- has the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; an
- appreciates that the person may need to have the proposed attorney make decisions for the person. 1992, c. 30, s. 47 (1).
17 Please see paragraph 90 of Capannelli v. Muroff 2003 CarswellOnt 925, 8 R.P.R. (4th) 83, 32 B.L.R. (3d) 17890. The court quoted Gillese J.A., in her text The Law Trusts, at p. 10, and confirmed the common law position that a fiduciary may not delegate his responsibilities. Also see Wile v. Rhodenizer; 1943 CarswellNS 7; 17 M.P.R. 42, [1943] 3 D.L.R. 497; R. v. Yaremkevich; 2002 CarswellAlta 1326; 2002 ABPC 174, 40 C.B.R. (4th) 195, 328 A.R. 180; Alberta Provincial Court; November 7, 2002; Docket: Edmonton 006704464P101;
18 Agudath Israel of America's POA states "Ascertaining the Requirements of Jewish Law: In determining the requirements of Jewish law and custom in connection with this declaration, I direct my agent to consult with and follow the guidance of the following Orthodox Rabbi...". The RCA's POA stated, "Concurrence of an Orthodox rabbi. Prior to my agent making a decision about my health care, in any case not covered by these directions one of the following rabbis shall be consulted. The Rabbi's decision shall govern my agent and my doctors."
19 Section 32 (1)
20 see the argument of McEachern in C.J.B.C. in A.(C.) v. C.(J.W.) at p. 116, where he argues that in almost every case canvassed where the Supreme Court of Canada has found the defendant guilty of the breach of a fiduciary duty, "the defendants personally failed to discharge a legal duty for their own benefit". He suggests that the possibility of a POA succumbing to self interest is part of the definition of a fiduciary.
21 Please see Blueberry River Indian Band v. Canada, , [1995] 4 S.C.R. 344 in which the Supreme Court of Canada found that a fiduciary duty exists eventhough there was no issue of self dealing. Also see Clea Parfitt and Melinda Munro in "Whose Interests Are We Talking About? A.C. v. Critchley and Developments in the Law of Fiduciary Duty" (1999), 33 U.B.C. L.Rev. 199. As well, in M.(F.S.) v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.) the Church had a fiduciary duty as educators and caregivers for minors and was found to have breached its fiduciary duty by failing to report and investigate complaints regarding sexual molestation of minors.
22 Lac Minerals Ltd. v. International Corona Resources Ltd. 44 B.L.R. 1, 26 C.P.R. (3d) 97, 69 O.R. (2d) 287, 61 D.L.R. (4th) 14, 6 R.P.R. (2d) 1, 35 E.T.R. 1, 101 N.R. 239, 36 O.A.C. 57, [1989] 2 S.C.R. 574
23 This test was confirmed in Hodgkinson v. Simms, 1994 CanLII 70 (S.C.C.) [1994] 3 S.C.R. 377 • (1994), 117 D.L.R. (4th) 161 • [1994] 9 W.W.R. 609 • (1994), 16 B.L.R. (2d) 1 • (1994), 16 B.L.R. (2e) 1 • (1994), 49 D.T.C. 5135 • (1994), 57 C.P.R. (3d) 1 • (1994), 97 B.C.L.R. (2d) 1 where the court stated "A party becomes a fiduciary where it, acting pursuant to statute, agreement or unilateral undertaking, has an obligation to act for the benefit of another and that obligation carries with it a discretionary power. Several indicia are of assistance in recognizing the existence of fiduciary relationships: (1) scope for the exercise of some discretion or power; (2) that power or discretion can be exercised unilaterally so as to effect the beneficiary's legal or practical interests; and, (3) a peculiar vulnerability to the exercise of that discretion or power",
24 Please see paragraph 42 of the Scardoni decision where Cullity J., reviews Ms. Chan's submissions regarding this issue.
"42 An alternative interpretation that Ms Chan supported is that all references to "treatment" in s. 10(1) include a plan of treatment and that the obligation imposed by the subsection relates to the plan as a whole, including the withholding or withdrawing of particular treatment. This interpretation is, I believe, more consistent with the definitions in s. 2 that are reproduced above. Section 13 is, I think, ambiguous in that the permissive "may" in the opening words could relate simply to the authority of one of a number of practitioners, or it could reflect a legislative intention that the decision whether or not to obtain consent to a plan of treatment is entirely within the discretion of the health practitioner. A difficulty with the second alternative construction of s. 13 is that the provision is not confined to consent to the withholding or withdrawal of treatment. If it reflects the absence of an obligation to obtain consent to a plan of treatment, this would appear to apply equally to particular treatments to be administered in accordance with the plan. The distinction between treatment that is rejected by health practitioners as appropriate on health grounds and treatment that is part of a plan of treatment is withheld may be difficult - and even very difficult - to apply in some cases,..."
Charles B. Wagner of Wagner & Associates, is a lawyer and litigator whose practice focuses on Commercial and Estate Litigation.
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