There are numerous estate planning tools available to individuals throughout Ontario beyond merely a will. As we discussed in a recent blog post, a power of attorney is just one of the additional tools beyond a traditional will that estate planners should consider. A comprehensive estate plan can include several documents to ensure that a trusted person or organization can manage a person’s affairs if they lack the physical or mental capacity to do so themselves.

Substitute decision-making for health care decisions is another critical tool individuals should consider when creating an estate plan. While appointing a substitute decision-maker can happen by creating certain types of powers of attorney, other methods can also be utilized.

This blog post will explain what substitute decision-making is and why individuals should consider incorporating this planning tool into their estate plans.

What is Substitute Decision-Making?

Substitute decision-making, generally, is when one person makes decisions for another person due to mental or physical incapacity.

In the context of health care, a substitute decision-maker may be required if an individual cannot make healthcare decisions for themselves due to the requirement of informed consent. Medical professionals must obtain informed consent from a patient before providing treatment (subject to exceptions) or from the patient’s substitute decision-maker.

Substitute Decision-Making and the Health Care Consent Act

In Ontario, the Health Care Consent Act governs consent to health care treatment and facilitation of treatment, admission to care facilities, and personal assistance for individuals who lack the capacity to make those decisions.

Substitute Decision-Making and Incapacity

Under the Health Care Consent Act, everyone is presumed to have the capacity to consent to treatment, admission to care facilities, or personal assistance services unless the person receiving consent has reasonable grounds to believe that the person giving consent lacks capacity.

To provide consent for treatment, an individual must be able to:

• Understand the information that is relevant to deciding about the treatment, admission, or personal assistance service; and
• Appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Consequences of Incapacity

If a person cannot provide consent to treatment, the person receiving consent must obtain consent from a substitute decision-maker before providing treatment or care.

The Health Care Consent Act provides a list of individuals who can act as substitute decision-makers for a person who lacks capacity, in order of priority, as follows:

• A guardian (provided the guardian has the authority to provide or refuse consent to treatment).
• An attorney for personal care, if the attorney for personal care documentation, provides that attorney with the authority to provide or refuse consent to treatment.
• A representative appointed by the Ontario Consent and Capacity Board.
• A spouse, partner, child, parent, brother, sister, or any other relative of the incapable person.

There are, however, some limitations on whether any of the above-listed individuals can provide consent. For example, a child under the age of 16 is unable to provide consent for their parent.

Outlining Your Wishes for Substitute Decision-Making

While the Health Care Consent Act provides a list of people who can act as substitute decision-makers, the individual appointing a substitute decision-maker should consider creating a power of attorney for personal care identifying their attorney for substitute decision-making regardless. This ensures that the chosen substitute decision-maker will “outrank” other family members. For example, if a person wants their child to be their substitute decision-maker rather than their spouse or wants a non-family member to be their substitute decision-maker, creating a power of attorney for personal care will help protect and convey their interests.

Powers of Attorney for Personal Care

A power of attorney for personal care offers benefits beyond substitute decision-making. In these documents, you can appoint a power of attorney who can make various decisions relating to your welfare, including health care, living arrangements, and even your meals and clothing.

Individuals can also specify how long they want your power of attorney to be effective and for which purposes. For instance, a person could create a power of attorney for personal care specifically for substitute decision-making in healthcare scenarios.

What Can I Tell a Substitute Decision-Maker to Do?

When creating a power of attorney for personal care, a person can provide “wishes” concerning their treatment, admission to a care facility, or personal assistance services. These wishes can be expressed in your power of attorney or orally, for example, telling your power of attorney that you would like them to handle health care decisions a certain way. An example of a “wish” that might be expressed to a substitute decision-maker would be refusing to consent to blood transfusions.

Under the Health Care Consent Act, the substitute decision-maker must act in accordance with any wishes expressed by the person they are acting for.

What If I Don’t Express Wishes in My Power of Attorney?

If a power of attorney does not provide specific directions to the substitute decision-maker regarding consent or refusal of treatment, the substitute decision-maker is nevertheless required to act in the individual’s “best interests” under the Health Care Consent Act.

Acting in a person’s best interests requires the substitute decision-maker to consider the following:

• The incapable person’s values and beliefs, and the substitute decision-maker’s beliefs regarding how the incapable person would have acted if they had the capacity;
• The likelihood of the treatment improving the incapable person’s well-being or preventing or reducing deterioration of the incapable person’s well-being;
• Whether the benefit the treatment will provide to the incapable person outweighs the risk of harm; and
• Whether a less restrictive or intrusive treatment would be as beneficial as the proposed treatment.

For these reasons, it is important to work with an experienced estate planning lawyer to ensure that you have sufficient information to make informed decisions relating to your estate plan.

The Estate Lawyers at Campbells LLP in Oakville Can Help You Develop a Thorough Estate Plan

The experienced estate planning and litigation lawyers at Campbells LLP in Oakville have been helping clients navigate estate planning and estate litigation since 1999. Whether you are seeking to challenge a will, remove a trustee, or pass the accounts of the estate, our lawyers will provide comprehensive and robust advice to ensure that the matter is resolved quickly and ensure that you are positioned for the best possible outcome. Contact us online or at (905) 828-2247 to schedule a consultation with a member of our wills & estates team.