Wills and Power of Attorney for Personal Care

Legal information for youth dealing with these important issues:

Scenario:

Maggie is 17 years old. She was recently diagnosed with an illness. Although her doctor told her that the general prognosis is good, he said that in the future, her illness may affect her ability to make decisions for herself.

Maggie has been dating Sean, who is also 17, for two years and they recently started talking about getting married.

Maggie has been collecting autographed baseball cards since she was a kid and she has amassed a collection valued at over $5000. She knows that her brother is jealous of her card collection, and she wants to make sure that her collection will go to Sean if she were to die. Maggie decides to make a will that indicates she is going to marry Sean and that Sean is to receive the card collection upon her death.

With their parents’ permission, Maggie and Sean get married. Although her parents gave their permission for Maggie and Sean to get married, as required for 16 and 17 year olds in Ontario, Maggie does not really get along with her parents. She is concerned that her illness will get worse and she does not want her parents making decisions about her healthcare if she is unable to do so. She is very close with her Aunt Regina, and trusts her very much. She wants to make sure that Regina, and not her parents, can make the decisions about her personal care.

Making a Will

A will is a written document that sets out a person’s wishes about how his or her estate (including property, money, and personal belongings) will be distributed after he or she dies. In Ontario, the law requires that normally you have to be 18 in order to make a valid will. The Succession Law Reform Act does provide a few exceptions that permit a minor to make a valid will. These circumstances are the following:

1.      If you are or have been married

2.      If you are contemplating marriage and the will states that it is made in contemplation of marriage to a specific person. If you do not get married to the specific person named in the will, it is not valid.

3.      If you are a member of a component of the Canadian Forces

4.      If you are a sailor and at sea or in the course of a voyage

Although these are not typical circumstances for young people, they are not out of the question. In Ontario, under the Marriage Act, you can get married when you are 16 years old if you have parental consent, as was the case with Maggie and Sean. In the above scenario, since Maggie and Sean were thinking about marriage when Maggie wrote her will, and Sean was specifically stated as the person she was going to marry in her will, the will is valid, because Sean and Maggie eventually got married.

Power of Attorney for Personal Care (POAPC)

Maggie wants to make sure that her Aunt has the ability to make decisions about her healthcare in the event that she becomes unable to do so herself. Maggie can make something called a Power of Attorney for Personal Care. A Power of Attorney is a legal document that gives someone else the right to act on your behalf.
 

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There are three types of Power of Attorney in Ontario: a Power of Attorney for Personal Care (POAPC), a Continuing Power of Attorney for Property, and a non-continuing Power of Attorney for Property. In this blog, we will only be discussing the POAPC. For information on the other two types of Power of Attorney, you can check out the website of the Office of the Public Guardian and Trustee.

In Ontario, the Substitute Decisions Act outlines the law around a Power of Attorney for Personal Care (POAPC). In order to make a POAPC, you must be at least 16 years old and mentally capable, meaning you understand whether the proposed attorney has a genuine concern for your well-being and that this person may need to make decisions on your behalf. An attorney in this context does not mean a lawyer. The attorney is the person or persons you choose to act on your behalf and he or she does not have to be a lawyer. The person you choose to be your POAPC must also be at least 16 years old and mentally capable.

If you become unable to care for yourself, A POAPC will be able to make almost any decision that is of a personal nature, including decisions about medical treatment, hygiene, housing, food, clothing, and safety. Your POAPC can be anyone, including a relative or close friend. You should be careful in choosing someone you trust, as this person may end up making very serious decisions that will affect your life.

If at any time you change your mind about your POAPC, you can revoke it, and this must be done in writing. You are able to revoke your POAPC as long as you have the required mental capacity. The mental capacity required to revoke a POAPC is the same as the mental capacity required to make one.

If you do not make a POAPC and become incapable of making personal decisions for yourself, a family member would usually have the right to make these decisions. If there is no family member or representative who is capable or willing to act, the Office of the Public Guardian and Trustee, which is a government office, will be required to make decisions on your behalf.

For more information, check out the Substitute Decisions Act, the law that deals with Powers of Attorney.

Do you have legal questions about your own will or power of attorney...or consider making one? If you are under age 18 and live in Ontario, please call JFCY at 416.920.1866 (or toll-free: 1.866.999.5329) to speak to a lawyer about your specific situation.

This post was written by PLE Team volunteer Christine Doucet.  Christine recently graduated from Osgoode Hall Law School.  Post was reviewed by JFCY.

What is the Office of the Children's Lawyer?

The Office of the Children’s Lawyer

In this post, we look at the Office of the Children’s Lawyer (OCL), which is a law office in the Ministry of the Attorney General that provides legal services to children and youth who are under the age of 18 in Ontario.

While they both represent children and youth on legal issues, JFCY and the OCL are different organizations doing different things.

What is the Office of the Children’s Lawyer?

The physical office where the OCL operates is in downtown Toronto, but there are lawyers and social workers across the province that work with the OCL, and services are available to children and youth anywhere in Ontario.

Lawyers who work for the OCL represent children in many areas of the law including custody and access disputes (when parents separate or get divorced), child protection (when a Children’s Aid Society is involved), and civil litigation (more about this below).

Social workers, who are also called Clinical Investigators at the OCL, may be involved in a case to prepare a report to the court in custody and access disputes and may also help lawyers who are representing children in these cases.

What does the office do?

There are two broad areas in which the OCL works – personal rights and property rights. The OCL does not provide representation or assistance in criminal matters. If you have an issue you think is related to criminal law, contact Justice For Children and Youth for further information and assistance. 

Personal Rights

Personal rights cases include custody and access matters and child protection proceedings. Often, in custody and access cases, parents are able to agree on many issues. There are times, however, where the adults cannot agree and the issues may become complicated. Usually, parents will have the opportunity to have a lawyer help them with their case. If the court thinks it is a necessary for the child or youth to have a lawyer, the court may request that the OCL provide representation to the child or youth. The court will ask the OCL to become involved when the court feels that it needs more information to protect the interests and needs of the child or youth.

One of your parents or the judge can make a referral to the OCL to request that the office becomes involved. If no one has made a request and you feel like you need a lawyer, you can ask one of your parents to ask the court for a referral to the OCL. However, just because the court asks the OCL to assist, it does not mean that the OCL will always become involved. The OCL makes the final decision whether or not to become involved in a custody or access case.

In cases where a Children’s Aid Society (CAS) is involved, the CAS may apply to the court for an order that a child is in need of protection, and remove a child or youth from his or her home. This may happen for many reasons, including abuse and neglect. In most cases, the CAS, and the parent(s) or other adults involved in the case usually have their own lawyers. If the court thinks it is necessary to protect a child’s interests, the court may ask the OCL to provide a lawyer to represent the child or youth. If the court requests the OCL to provide representation in child protection cases, the OCL must do so.

Property Rights

Property rights cases involve civil litigation and estate and trust matters. In Ontario, children and youth (under 18 years of age) cannot sue or be sued in their own name. In a situation in which a child has a right to sue, or is being sued, the child needs someone to act as a Litigation Guardian, who will make decisions for a child in legal proceedings. This would most often come up in personal injury cases, for example if a child was in an accident.

Often, a parent, guardian, or other adult may be appointed by the court as a Litigation Guardian. However, there may be cases where this is not appropriate, or there is no one who is willing and able to act as a Litigation Guardian. If there is no other person available, the court may order that a lawyer from the OCL act as a Litigation Guardian. 

The OCL also represents children and youth estate and trust cases. If a parent, guardian or relative passes away, there are many legal issues that come up for children and youth, including looking at the will, if there is one, to make sure it is valid, and making sure there is adequate support for the child from the estate of the person who has died. 

Where can I get more information?

For more information, check out the Office of the Children’s Lawyer’s website here.

For more information on your rights in cases of separation and divorce, you can check out this pamphlet: Where Do I Stand? A Child's Legal Guide to Separation and Divorce.

This blog post was written by JFCY volunteer Christine Doucet. Christine is a member of the PLE team and YouTube subcommittee, and is a recent graduate of Osgoode Hall Law School. 

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