Reference Articles > Powers of Attorney for Personal Care – Ulysses Contracts

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This article discusses the idea of a “Ulysses contract” in the context of providing pre-ordained directives to one’s attorney for personal care.  

There is no particular form[1] of power of attorney for personal care and it may be in prescribed form (section 46(9)). At a minimum it must name a substitute decision maker, must be witnessed by two witnesses, must be in writing and may contain directions or wishes about future personal care/treatment.

A power of attorney for personal care is flexible - in form and nature. It may even be an “Ulysses Contract” if it includes clauses allowing for the use of necessary and reasonable force to facilitate the person’s hospitalization and treatment.  To qualify as such, however, the document must contain one or more specified provisions (regarding force) as contained in section 50(2):

 50(2)    List of provisions - The provisions referred to in subsection (1) are:

 1.   A provisions that authorizes the attorney and other persons under the direction of the attorney to use force that is necessary and reasonable in the circumstances, 

i.         to determine whether the grantor is incapable of making a decision to which the Health Care Consent Act, 1996 applies,

ii.       to confirm, in accordance with subsection 49(2), whether the grantor is incapable of personal care, if the power of attorney contains a condition described in clause 49(1)(b), or
 

iii.  to obtain an assessment of the grantor’s capacity by an assessor in any other circumstances described in the power of attorney.
 

2.   A provision that authorizes the attorney and other persons under the direction of the attorney  to use force that is necessary and reasonable in the circumstances to take the grantor to any place for care of treatment, to admit the grantor to that place and to detain and restrain the grantor in that place during the care or treatment.
 

3.   A provision that waives the grantor’s right to apply to the Consent and Capacity Board under section 32, 50 and 65 of the Health Care Consent Act, 1996 for a review of a finding of incapacity that applies to a decision to which that Act applies.

Such a provision, however, is not effective unless both listed circumstances in section 50(1) of the Substitute Decisions Act, 1992 exist, namely that the grantor and an assessor make a statement within 30 days of the making of the power of attorney:

50.(1) Special provisions - A power of attorney for personal care may contain one or more of the provisions described in subsection (2), but a provision is not effective unless both of the following circumstances exist:

1.   At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provision and of subsection (4).
 

2.   Within 30 days after the power of attorney was executed, the assessor made a statement in the prescribed form,
 

i.  indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor’s capacity,

iii. stating the assessor’s opinion that, at the time of the assessment, the grantor was capable of personal care and was capable of understanding the effect of the provision and of subsection (4), and

iii.  setting out the facts on which the opinion is based.
 

Such provisions may only be revoked if, within 30 days before the revocation is executed, an assessor performs an assessment of the grantor’s capacity and makes a statement in prescribed form, as set out in section 50(4) of the Substitute Decisions Act, 1992:
 

(a)     indicating that, on a date specified in the statement, the assessor performed an assessment of the grantor’s capacity;
 

(b)      stating the assessor’s opinion that, at the time of the assessment, the grantor was capable of personal care; and
 

(c)     setting out the facts on which the opinion is based.
 

Section 50(5) of the Substitute Decisions Act, 1992 provides that with respect to force, no action lies against an attorney, a police services board, a police officer or any other person arising from the use of force that is authorized by a provision described in section 50(2) that is effective under section 50(1).
 

Note: a power of attorney for personal care accepted for registration under section 50 before the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996 [2] came into force, is deemed to contain all the provisions of section 50(2) as re-enacted[3] and both circumstances described in section 50(1) shall be deemed to exist in respect of each provision.[4]

Finally, such provisions require a “higher” threshold of capacity in that the grantor must be capable of personal care, understand the effect of each special provision and understand the special procedure for revoking. 

For more information on estate, trust, powers of attorney or guardianship topics please see accompanying articles. Remember these articles are provided for information only and are not meant to be legal advice. Please consult with a professional.

M. Jasmine Sweatman practices at the law firm Sweatman Law Firm and can be contacted directly by telephone at (905)337-3307 or by email at jasmine@sweatmanlaw.com.