The answer to this question really is a matter of personal choice and circumstances. A Power of Attorney for Personal Care (POA PC) is a legal document that gives someone the power or authority to make decisions on your behalf in the areas of: health care, medical treatment, nutrition, hygiene, clothing, housing and safety. This document is important for your personal planning because if you become mentally incapable of making personal care decisions, someone else must make them for you. The attorney is your “substitute decision-maker” (SDM), given you cannot make the decision(s) for yourself. Furthermore, a POA PC only takes effect if you become mentally incapable of making some or all of your personal care decisions.
A Sacrificial Role
Many people choose close relatives to act in this role such that they’re certain their appointed attorney will not want to be paid. That being said, this SDM role can be quite time-consuming and therefore the question warrants some consideration. Attorneys for Personal Care (APC) often spend hours cleaning, cooking, and driving their loved ones to and from medical appointments which requires a significant amount of commitment and dedication. While the attorney contributes time and effort, they’re also juggling aspects of their own life, such that many of them eventually suffer burnout.
Entitlement to Compensation
In light of their sacrifice, many APC’s ask what amount of compensation they’re entitled to receive in exchange for the care services they provide for their loved one? The answer is, without a sufficiently detailed provision in the POA PC or a court order, they’re not entitled to any compensation.
Substitute Decision-Making vs. Caregiver Tasks
Unfortunately, part of the disappointment that results from such an answer is that many confuse the role of an APC with that of a personal support worker, a caregiver, housekeeper, etc. As mentioned above, an APC is none of those things, but is instead a substitute decision-maker when the grantor cannot no longer make personal care decisions for themself.
Statutory Compensation to Attorneys For Property
The fact that APC’s are not automatically entitled to compensation for services provided is contrasted with a statutory formula entitling attorneys for property to compensation. There are no statutes or regulations in Ontario that address the issue of compensation for APC’s.
Caselaw Compensation to Attorneys for Personal Care
Although there is no statutory provision for APC’s to be compensated, there is case law that supports the general proposition that a court may fix and award such compensation when presented with sufficient evidence to justify compensation. Amongst the principles outlined in caselaw, the principle of reasonableness is paramount: The services must have been either necessary or desirable and reasonable. The amount claimed must also be reasonable. Reasonableness will be determined by the Court in each case, assessing the need for, nature of and value of the services, as well as the period over which the services were provided. The Court will also determine the reasonableness of the amount claimed in the context of the incapable person`s financial situation. Furthermore, the compensation must be proportional to the means of the incapable person and its payment should not pose a risk to the overall financial affairs of the incapable person.
A Court also noted the natural love and affection that should be the basis of care given by an adult child to their mother, particularly because the mother, at one point, cared for the child without payment. The Court would`ve also considered evidence as to the attorney`s quality of life, the need for a break or vacation and the cost for same and the cost of professional care for the mother so that she could get a break.
The discussion of APC compensation demonstrates that the grantor of a POA PC should turn their attention to this issue when they are planning their POA PC. That way, the POA PC can address the issue according to the grantor`s specific desires.
If you have any questions about APC or caregiver compensation, please contact Andrea Kelly Law.
*****
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
