Providing care to an elderly or sick family member is a significant and often thankless undertaking. Quite often, it is the attorney for personal care who assumes the caregiving responsibilities. Attorneys for personal care often spend hours cleaning, cooking, and driving their loved ones to and from medical appointments which requires a significant amount of sacrifice. While commendable, an attorney’s act of providing care to a loved one while also trying to juggle matters in their own life does not come without consequences, including caregiver burnout.
In my estate litigation practice, I am frequently consulted by attorneys who are acting under a power of attorney for personal care. I am repeatedly asked the same question: what amount of compensation am I entitled to receive in exchange for the care services that I provide to my loved one? My answer to this question is, “without a court order, you are not entitled to any compensation.”
While my answer to this question may seem bizarre at first glance, it is important to consider what an attorney for personal care is.
Oftentimes, the position of attorney for personal care is improperly conflated with the occupation of personal support worker or caregiver. Perhaps it is the title of the position that causes this confusion.
However, in reality, an attorney for personal care is not a personal support worker or caregiver, nor is an attorney for personal care required to provide caregiving services. Instead, an attorney for personal care is a substitute-decision maker for a person who no longer has the ability to make decisions on their own. When it is determined that a grantor of a power of attorney no longer has capacity to make decisions with respect to some or all aspects of their personal care (i.e. shelter, nutrition, safety, hygiene, clothing, and health care) the attorney for personal care is called upon to make those decisions for that person. The attorney for personal care derives their authority from the power of attorney document that appoints him or her as the attorney, and the attorney must abide by the relevant provisions of the Substitute Decisions Act, 1992.
The fact that attorneys for personal care are not entitled to compensation for services provided absent a court order becomes even more bizarre when one considers the fact that attorneys acting under a power of attorney for property are entitled to compensation based on a formula outlined in Ontario Regulation 26/95. Unfortunately for attorneys acting pursuant to a power of attorney for personal care, there are no statutes or regulations in Ontario that address the issue of compensation.
Despite the fact that there is no statutory framework for the compensation of services provided under a power of attorney for personal care, 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.
In arriving at the conclusion that a court may award compensation to an attorney operating under a power of attorney for personal care, the Honourable Justice McDermid made the following observations in the Ontario Superior Court that was released in 1999:
- There is no statutory prohibition against making an Order for compensation. Therefore, there is nothing preventing the Court from awarding or fixing compensation;
- The court has jurisdiction to award compensation for legitimate services rendered by a committee of the person to an incapable person so found, provided that there is sufficient evidence about the nature and extent of the services provided and evidence from which a reasonable amount can be fixed for compensation;
- The court routinely deals with claims for compensation for work done or services rendered in a variety of situations. In the absence of any statutory prohibition, there is no reason for rejecting such a claim;
- The hallmark of such compensation must be reasonableness. The services must have been either necessary or desirable and reasonable. The amount claimed must also be reasonable;
- The reasonableness of the claim for compensation will be a matter to be determined by the court in each case, bearing in mind the need for the services, the nature of the services provided, the qualifications of the person providing the services, the value of such services and the period over which the services were furnished; and,
- There must be some evidentiary foundation to support the claim for compensation.
In a decision that was released by the Ontario Superior Court of Justice in 2009, the court provided additional guidance on the subject of reasonableness of the amount of compensation awarded to an attorney. The court noted that the reasonableness of the amount of compensation awarded must be assessed in the context of the specific financial circumstances of the incapable person. The amount awarded must not only be reasonable in relation to the services performed, but it must also 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 brief review of these case law on this subject makes it abundantly clear that there must be sufficient evidence about the nature and the extent of the services provided. For example, in another decision from the Ontario Superior Court of Justice released in 2015, the attorney for personal care sought compensation in the amount of $133,000.00 on account of the care that she provided to her elderly mother who suffered from dementia. Ultimately, the Court awarded the attorney the sum of $25,000.00 in recognition of the attorney’s efforts and the care that the attorney provided to her mother over a two-year period. In reducing the attorney’s claim for compensation from $133,000.00 to $25,000.00, the Court noted the following:
- A child should not be paid to care for an ailing mother, as the mother was not paid for raising her four children;
- Children are owed and deserve natural love and affection from their parents and parents are owed and deserve natural love and affection from the children;
- The attorney is entitled to and has earned recognition and thanks. The attorney’s self-satisfaction in knowing that she has done the right thing really should be enough for the attorney;
- There must be an evidentiary foundation to support entitlement to the claim and the quantum of the claim;
- There is no evidence before the court of any sacrifice made by the attorney or loss suffered to undertake the care of her mother; and,
- There is no evidence before this court of the attorney’s quality-of-life, for example, the need for a break or vacation, the cost of that, money for her to fund professional care for her mother so that she can get a break.
Accordingly, while there are no statutes of regulations that specifically authorize an attorney for personal care to receive compensation, the jurisprudence in Ontario is clear that a court has discretion to fix and award such compensation for services provided under a power of attorney for personal care if there is sufficient evidence about the nature and the extent of the services provided.
If you have any questions about whether you are entitled to caregiver compensation, please do not hesitate to contact the Siskinds Estate Litigation Group.