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Current events have brought attention to the importance of understanding how Ontario law provides for others to make decisions on behalf of loved ones who are no longer able to do so concerning their health care, including as they face the end of life.

What is a Substitute Decision Maker?
Under the governing law in Ontario (the Substitute Decisions Act and the Health Care Consent Act (“HCCA”)), a substitute decision maker (“SDM”) is one who is legally permitted and empowered to make health care decisions on behalf of another person who is incapable of understanding or appreciating the information needed to make decisions about her/his care. Where the incapable person’s values, desires and beliefs are known to the SDM, the substitute decision making must be consistent with those values, desires and beliefs. Where such information is not known by the SDM, the SDM is required to make decisions that are in the best interests of the incapable person.

Appointing your Substitute Decision Maker in advance is recommended
We recommend that wherever possible, a capable person designates her/his SDM by means of a written document called a Power of Attorney for Personal Care (“POAPC”). Typically, a POAPC is made at the same time as the person makes her/his last will and testament and simultaneous with a power of attorney for property. The POAPC method gives the person the opportunity to consider thoughtfully and to make her/his own choice of a SDM.

What if there is incapacity but no POAPC in Place?
In the event that a person is incapable of making her/his health care decisions and that person has not designated a SDM under a POAPC, the HCCA lists the persons to whom a health care practitioner must otherwise look to provide the decision. The list is given in order of authority. That means that a substitute decision maker is selected because there is no one else above them on that list with general authority. The list ranks a spouse, child, parent, sibling or other relative below a legal guardian or the Consent and Capacity Board created under the HCCA. So, while the HCCA provides various means for health care workers to obtain decisions regarding the treatment and care of incapable persons, in many cases such decisions will be made by persons other than the designated person who the individual would have preferred and chosen, while capable, through a POAPC.

Other benefits of a POAPC
In addition to the benefit of being able to choose one’s decision maker, the POAOC method of appointing a SDM will:

  1. avoid situations in which there are two or more persons on the HCCA list who qualify to be substitute decision makers, who rank ahead of any others and who disagree about whether or not to give or refuse consent, thereby causing the Public Guardian and Trustee to make decisions in their place. The use of a POAPC will allow the attorney of your choice to carry out your instructions.
  2. allow you to express your wishes and intentions in a legally enforceable and recognized manner to be carried out by someone you trust to do so, if you have been diagnosed with a terminal illness or condition and have specific thoughts about your treatment and care as your condition progresses.

How can Tierney Stauffer LLP help?
The Wills and Estates lawyers at Tierney Stauffer LLP are experienced in carefully and thoroughly advising on and drafting Powers of Attorney for Personal Care.
Please do not hesitate to contact me for more information on how I can assist.

John S. Grant, Q.C

Senior Legal Advisor – Business Law Group

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.

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