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Step 3: Decide

Who Will Speak On Your Behalf?

 

You should consider who will make health care decisions for you if you become mentally incapable and are unable to give or refuse consent for treatment or other care. Think carefully about who you feel would understand, be able to interpret, honour and follow your wishes. Who would be most capable and willing to make health care decisions on your behalf as your Substitute Decision Maker(s). This may be a spouse, an adult child, a trusted family member or a good friend.

You need to understand what the law says about who your automatic Substitute Decision Maker is, and what you must do if you want to appoint someone else.If you are not mentally capable to give or refuse consent to treatment or other care, the law provides you with an automatic Substitute Decision Maker. The Ontario Health Care Consent Act includes a hierarchy (a ranking list) of Substitute Decision Maker(s) – click the Hierarchy on the right sidebar. The person or persons in your life that are the highest ranked in this hierarchy and that meet the requirements to act as a Substitute Decision Maker(s) will be your Substitute Decision Maker(s) for health care. If you would like to CHOOSE someone (or more than one person) to be your Substitute Decision Maker(s), and this person is different from the one listed in the hierarchy, then you must prepare a Power of Attorney for Personal Care.

WHO IS MY SUBSTITUTE DECISION MAKER(S) according to the law in Ontario?

The law in Ontario automatically provides your Substitute Decision Maker(s) – it will be the person highest ranked in the hierarchy [click Hierarchy on right sidebar] of Substitute Decision Makers in the Health Care Consent Act that meets the requirements to be a Substitute Decision Maker(s).

If you do not want the highest-ranking person in the hierarchy list to be your Substitute Decision Maker(s), you must prepare a Power of Attorney for Personal Care. Just because you have listed names of people to be your Substitute Decision Maker(s) in this workbook does NOT mean that these people have the right to act as your Substitute Decision Maker(s). To be your Substitute Decision Maker(s), the person/people must be the highest ranking on the hierarchy list of Substitute Decision Makers or you must name them in a Power of Attorney for Personal Care. This workbook is NOT a Power of Attorney for Personal Care.

If no person in your life meets the requirement to be a Substitute Decision Maker, then the Public Guardian and Trustee, a public government organization, is your Substitute Decision Maker.

WHAT ARE THE REQUIREMENTS TO BE A SUBSTITUTE DECISION MAKER?

The “requirements” to be a Substitute Decision Maker are that the person must be:

  • Willing to act as your Substitute Decision Maker
  • Be mentally capable to make the needed health decisions for you
  • AVAILABLE (in person or by phone or by some other means) when a decision needs to be made
  • Not prohibited by a court order from acting as your substitute decision maker and
  • Be at least 16 years of age.

If the person in your life that is the highest ranking in the hierarchy does not meet these requirements to be a substitute decision maker , then the health care professional may move down the hierarchy to the next person in the list in your life.

When do I complete a POWER OF ATTORNEY FOR PERSONAL CARE

In Ontario, you can CHOOSE someone (or more than one person) to be your Substitute Decision Maker(s) by preparing a Power of Attorney for Personal Care.

A Power of Attorney for Personal Care is a document, in writing, in which you name someone to be your “attorney.” The word attorney does not mean lawyer. In this case, an attorney is a type of Substitute Decision Maker. To be valid, the document must be: · Signed by you voluntarily, of your own free will; · Signed by you in the presence of two witnesses; · Signed by the two witnesses in front of you.

Also, you must be mentally capable of understanding and appreciating what kind of document you are signing and what you are doing by signing such a document.

More information on Ontario Powers of Attorney for Personal Care:

Advocacy Centre for the Elderly

Community Legal Education Ontario

Ontario Ministry for the Attorney General

WHAT IF MORE THAN ONE PERSON IS ENTITLED TO ACT AS MY SUBSTITUTE DECISION MAKER(S)?

If there is more than one person at any one level in the hierarchy, and they are the highest ranking in the hierarchy, they must make decisions together (jointly) or must decide amongst themselves which of them will act as your Substitute Decision Maker.

For example, if you have three children (level 5 on the hierarchy), all three are entitled to act as your Substitute Decision Maker(s). They must act together and agree on any decisions for your health care. If they all agree that only one of them should make decisions for you, then that one child may make decisions for you alone, without talking to the other two, and the health care professionals must take direction from that one child. The health care professionals cannot pick which one of the three should make decisions for you. The three children must decide amongst themselves whether they all act together or which one of them will act.

If there is a conflict among people who are equally entitled to act as your Substitute Decision Maker(s), and they all want to act, and they cannot agree on the decisions about treatment for you, the Public Guardian and Trustee is required to act as your Substitute Decision Maker(s) instead of any of them. The Public Guardian and Trustee does not choose between the disagreeing decision makers but “shall make the decision in their stead.”

For further information:

Advocacy Centre for the Elderly

WHAT IF I CHANGE MY MIND?

Life changes, and so may your wishes and values about your health care. It’s important to regularly review your wishes for future health care (Advance Care Planning) and communicate with your Substitute Decision Maker(s), especially if your health changes, or there’s a major change in your life.

WHO SHOULD BE MY SUBSTITUTE DECISION MAKER(s)?

Your Substitute Decision Maker(s) will make health care decisions for you when you are no longer mentally capable of making those decisions. Here are some things to consider when choosing a Substitute Decision Maker(s):

  • Do I trust this person to make health care decisions that reflect my wishes?
  • Can they communicate clearly with my health team?
  • Can they make difficult decisions during stressful times?
  • Is this person willing and available to speak for me if I couldn’t speak for myself?
  • Does this person(s) understand my wishes and values and what is important to me?
  • Mentally capable,
  • At least 16 years of age unless he or she is the parent of the incapable person,
  • Not prohibited by a court order or separation agreement to have access to you (the incapable person) or to give or refuse consent on your behalf,
  • Available, and
  • Willing to assume the responsibility of giving or refusing consent.

WHAT IF I HAVE NOT SIGNED A POWER OF ATTORNEY FOR PERSONAL CARE – WHO IS MY SUBSTITUTE DECISION MAKER(s)?

If you do not prepare a Power of Attorney for Personal Care, the law in Ontario automatically provides your Substitute Decision Maker(s) – it will be the person highest ranked in the hierarchy of Substitute Decision Makers in the Health Care Consent Act (see hierarchy list below) that meets the requirements to be a Substitute Decision Maker(s).

If you do not want the highest-ranking person in the hierarchy list to be your Substitute Decision Maker(s), you must prepare a Power of Attorney for Personal Care.

Just because you have listed names of people to be your Substitute Decision Maker(s) in this workbook does NOT mean that these people have the right to act as your Substitute Decision Maker(s). To be your Substitute Decision Maker(s), the person/people must be the highest ranking on the hierarchy list of Substitute Decision Makers or you must name them in a Power of Attorney for Personal Care. This workbook is NOT a Power of Attorney for Personal Care.

If no person in your life meets the requirement to be a Substitute Decision Maker, then the Public Guardian and Trustee, a public government organization, is your Substitute Decision Maker.

Hierarchy of Substitute Decision Makers

1. Guardian of the person: This is someone that is appointed by the court to be your Substitute Decision Maker.
2. Attorney named in a Power of Attorney for Personal Care: This is the person or persons YOU have chosen to be your Substitute Decision Maker if you prepared this document when you were mentally capable to do so.
3. Representative appointed by the Ontario Consent and Capacity Board: One of your family or friends could apply to the tribunal, known as the Consent and Capacity Board, to be named as your “Representative,” which is a type of Substitute Decision Maker. However, if you prepared a valid Power of Attorney for Personal Care, the Consent and Capacity Board will not appoint anyone even if they apply because the Substitute Decision Maker YOU chose in the Power of Attorney for Personal Care will rank higher in the hierarchy list.

4. Spouse or partner. Two persons are “spouses” if they are:

  1. Married to each other; or
  2. Living in a marriage-like relationship and,
    1. Have lived together for at least one year, or
    2. Are the parents of a child together, or
    3. Have together signed a Cohabitation Agreement under the Family Law Act. A Cohabitation Agreement is a document that two people who live together, but are not married, can sign in which they agree about their rights and obligations to each other during the time they live together and on separation. The types of things they can include in the agreement are rights to financial support from each other, ownership and division of property, and the education of their children.

    Two persons are not spouses if they are living separate and apart as a result of a breakdown of their relationship.

    Two people are “partners” if they have lived together for at least one year and have a close personal relationship that is of primary importance in both people’s lives. This can include friends who have lived together for at least one year in a non-sexual relationship and have a special personal family-like relationship.

5. Child or parent or Children’s Aid Society or other person lawfully entitled to give or refuse consent to treatment in place of the incapable person: This does not include a parent who only has a right of access. If a Children’s Aid Society or other person is entitled to give or refuse consent in place of the parent, this then would not include the parent.

6. A parent who only has a right of access.
7. Brother or sister.
8. Any other relative People are relatives if they are related by blood, marriage or adoption.
9. The Public Guardian and Trustee(PGT) is the decision-maker of last resort if no other person is capable, available or willing to give or refuse consent. The PGT is a government appointed representative.

If no person in your life meets the requirement to be a Substitute Decision Maker(s), then the Public Guardian and Trustee, a public government organization, is your Substitute Decision Maker.

 

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Substitute Decision Maker Hierarchy

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