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Posted on February 21st 2006 in Legal Articles

Appointing a Substitute Decision Maker

Appointing a Substitute Decision Maker

What if you are involved in a serious accident that leaves you in a coma? Or you are incapacitated because of a stroke? Who will make decisions about your health and your personal care? Since the court battle involving the late Terri Schiavo, earlier this year, these questions have been on the minds of many. What follows is an overview of the law in Ontario as it pertains to this issue.

In 1992, the Ontario government passed legislation that recognized the legality of powers of attorney for personal care, including what is popularly referred to as a living will. Pursuant to the Substitute Decisions Act, 1992, a person may appoint someone to act on his or her behalf with respect to both property (power of attorney for property) and health care (power of attorney for personal care).

What is a power of attorney for personal care?
While many people are familiar with living wills, a power of attorney for personal care is in fact much more than a direction to remove life support. A power of attorney for personal care is a written direction authorizing the attorney to be the grantor’s substitute decision maker with respect to issues concerning the grantor’s health, medical treatment and personal care.

Who can make a power of attorney for personal care?
Any resident of Ontario over the age of 16, who has the ability to understand whether the proposed attorney has a genuine concern for his or her welfare; and who appreciates that he or she may need to have the proposed attorney make decisions, can make a power of attorney for personal care.

What is a living will?
A living will is a directive that the grantor may include in the power of attorney for personal care. Such a directive provides information and direction about the type of medical treatment that the grantor does and does not want in the event he or she is unable to speak. Therefore it is a good idea to discuss treatment options with your doctor so that you are able to make an informed decision, suitable to your particular health situation.

It is important that the instructions in a living will be clear since saying “you do not want to be kept alive on life support” is too vague. This statement does not differentiate between life support and the prolongation of dying.

Who can act as an attorney?
The word attorney is a legal term and does not mean that you must appoint a lawyer. Your attorney for personal care can be anybody over the age of 16, including your spouse, a relative or a trusted friend.

However, a person may not act as an attorney if that person provides health care to the grantor for compensation; or provides residential, social, training or support services to the grantor for compensation. The only exception is if that person is the grantor’s spouse, partner or relative.

What kind of decisions can the attorney make?
The attorney can make any and all decisions related to the grantor’s personal care and health. The type of decision could range from what the grantor should eat, to where he or she should live, to whether he or she should see a doctor. Decisions must be made in accordance with the grantor’s wishes, if they are known, otherwise they must be made in his or her best interests.

What are the attorney’s legal duties?
An attorney is required to exercise his or her duties diligently, in good faith and in the best interests of the grantor. In addition, the attorney must:
• explain to the incapable grantor what the attorney’s powers and duties are;
• make decisions in accordance with the grantor’s wishes or instructions if those can be ascertained;
• keep records of decisions made by him or her on the incapable grantor’s behalf;
• encourage the grantor to participate, to the best of his or her abilities, in the attorney’s decisions;
• seek to foster regular personal contact between the incapable grantor and his or her supportive family members and friends;
• consult from time to time with, supportive family members and friends of the incapable grantor who are in regular personal contact with him or her as well as persons from whom the incapable grantor receives personal care;
• seek to foster the grantor’s independence as far as is possible; and
• choose the least restrictive and intrusive course of action that is available and is appropriate in the particular case.

When will the attorney make decisions on the grantor’s behalf?
The attorney begins to make decisions when and if the grantor becomes incapable of looking after himself or herself. This will generally be determined by an evaluator, usually a social worker.

The grantor is considered incapable if he or she is not able to understand information that is relevant to making a decision concerning his or her
• health care,
• nutrition,
• shelter,
• clothing,
• hygiene,
• safety, or
• is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

What if there is no power of attorney for personal care?
The law sets out a hierarchy of substitute decision makers for cases where a person becomes incapable but has not made a power of attorney for personal care. Further, anyone, including family or friends, can apply to the Consent and Capacity Board to become the person’s substitute decision-maker for the purpose of
• medical treatment,
• admission to a long-term care facility, and
• personal assistance services in a long-term care facility.

Although there will be instances where the public guardian and trustee will be asked to step in, the law is clear that this should be a last resort.

It is now, when you are healthy, that you should choose one or more persons to act as your hands and voice if, at some point, you are unable to.

We would be happy to assist you in the preparation of a power of attorney for personal care as well as other related documents. For further information please contact Stan Landau or Howard Steinberg.