Living Testament Will FAQ's

gov us, Feb 24, 2005

What is a “living will”?
The expression “living will” is sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment.

It is quite common, for example, for people to write a “living will” saying that they do not want to be kept alive on artificial life supports if they have no hope of recovery. The term “advance directive” is also frequently used to refer to such a document.

Some people also use the phrase “proxy directive” to describe a document that combines a Power of Attorney and a “living will”. To find out more about living wills and related matters you may wish to refer to the website  or see the various materials that are available in bookstores and libraries on the subject. Is a “living will” the same thing as a “Power of Attorney”?
No. A Power of Attorney is a legal document in which you name a specific person to act on your behalf. You can, however, write your treatment wishes (your “living will” or “advance directive”) down in your Power of Attorney document so that you can be sure your attorney is aware of them. A “living will” just addresses your treatment and personal care wishes and does not need to name anyone or be written in any specific way. 8. Is a Power of Attorney or “living will” the same thing as a “Last Will and Testament?
 No. Your Last Will and Testament, covers the distribution of your property after you die and only takes effect upon your death. A Power of Attorney and a “living will” only apply while you are alive and cease to be effective upon your death. 9. Do I have to register my Power of Attorney or “living will” with the government?
No. There is no requirement that these documents be registered. The government does not keep a registry. It makes sense, however, to make sure that the people in your life who need to know about these documents – especially your attorney – have a copy or know where to get one if needed. 10. Is a Power of Attorney or “living will” effective outside of Ontario?
It depends on the law of the particular place where you want to use the Power of Attorney. If you are going to move or be out of the province for some time you may want to check with a local lawyer to see if you need to make new documents. Page 4 of 19
11. If I don’t make a Power of Attorney or a “living will” will the government automatically step in if I can’t manage my own affairs?
No. In these circumstances a family member has the right to make your health care decisions or apply to become “guardian” of property. Alternatively, someone else – such as a close friend, for example, could apply to act for you in these matters. The government, through the Office of the Public Guardian and Trustee acts only in situations where no other suitable person is available, able and willing. For more information about applications for guardianship please see the brochure entitled “Becoming a Guardian of Property”. 12. Do I have to use a lawyer to make my Powers of Attorney or ”living will?
The law does not require you to use a lawyer’s services, but you may wish to consider this, especially if your affairs are complicated. 13. Where can I get Power of Attorney and “living will” forms?
Your lawyer can draft a form for you. Alternatively, some bookstores sell forms and there are also some forms on the Internet. The Office of the Public Guardian and Trustee provides forms. 1994 Power of Attorney Kit is still valid for use today. There are different forms for a “living will” available at most bookstores. 14. Does the government also provide a “Will Kit “ or similar forms that I can use to make my Last Will and Testament? No. It is difficult to make one form that would adequately cover the many diverse situations that people may want to reflect in their Wills and provide all the information that people need to plan properly. However, there are forms available on the Internet or at bookstores that people with very simple situations may find useful. 15. If a witness to a power of attorney dies, does the power of attorney become invalid? No. The subsequent death of one of the witnesses does not affect the validity of the power of attorney. Page 5 of 19
16. If there is more than one power of attorney, which one is valid?
The most recent CPOA is valid unless you state, in that document, that you intend to have more than one CPOA. 17. Can a power of attorney be challenged? Yes, but only a court has the final say. 18. Will the Office of the Public Guardian and Trustee agree to be appointed in a power of attorney?
The OPGT rarely consents to act under a CPOA. The OPGT’s mandate is to act as guardian for mentally incapable adults who have no one else available, willing and suitable to act on their behalf. 19. Will the OPGT help me fill out my CPOA or provide me with legal advice?
No. The OPGT cannot provide private legal services to individuals or assist you in completing the document. Any questions about your personal situation should be directed to your own lawyer.