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What is a Living Will?

Appointing an Attorney for Personal Care

In Ontario, a Living Will is often called a Power of Attorney for Personal Care and is largely governed by the Substitute Decisions Act. Living Will gives instructions to a person appointed (the appointed person is called the Attorney for Personal Care) by the person making the Living Will (called the Donor).  The instructions are for what kind of care is to be given to the Donor when that person becomes unable to make decisions.  This includes looking after someone who is caring for a mentally disturbed person, or looking after an infant or other person.  The Attorney for Personal Care can be 16 years of age or older.   This may present problems if the chosen Attorney for Personal Care is under 18 years of age and is asked to make certain business decisions.  Someone who is under 18 is an infant in the eyes of the law and cannot make certain business decisions.

The Donor must have the legal capacity to make the living will.  In other words, the Donor must be coherent and able to understand the effect of the Living Will.

The Attorney For Personal Care is acting as a Trustee and is therefore bound by The Trustee Act and as well, every statute dealing with Powers of Attorney.

A Power of Attorney can be replaced by the Donor by sending a Notice of Revocation to the named Attorney.  There are specific legal requirement for making this revocation.

 

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