Consent to treatment for incapable persons – who decides?

May 1, 2015 Hull & Hull LLP Guardianship, Power of Attorney Tags: 0 Comments

Many people wait until they do their will to appoint their power of attorney for personal care (and attorney for property). Given the unpredictability of life, and the fairly simple task of making a power of attorney, it might be better to get your powers of attorney done as soon as you can. If you don’t, the provisions of the Health Care and Consent Act (HCCA) will govern when you are not capable to make your own treatment decisions.

If you are not capable of consenting to treatment, section 20 of the HCCA dictates that the following people can make the decision for you, in order of ranking:

1. The guardian of personal care.
2. The attorney for personal care.
3. The representative appointed by the Consent and Capacity Board.
4. The spouse or partner.
5. The child who is at least 16 years of age or the parent.
6. The sibling.
7. Any other relative.
8. If no one is available, the Public Guardian and Trustee (PGT) will have to make the decision.

Section 20 of the HCCA also stipulates, among other things, that the substitute decision maker must be capable of consenting to the treatment, available to make the decision and willing to assume the responsibility of giving or refusing consent.

Section 20 further addresses the case where there is disagreement among equally ranking persons. In this situation, the physician must ask the PGT to make the decision. This is not often a favourable scenario, since it leaves the decision to the PGT, a stranger to the family, and does not allow lesser ranked family members to make the decision. Nor does it allow the equally ranked disagreeing persons to seek guidance from the Consent and Capacity Board (although joint guardians or joint attorneys can apply to the Superior Court of Justice for directions).

This is a good reminder that getting your powers of attorney in order will in most cases avoid disputes, expense and delays when decision time comes.

Thanks for reading and have a great weekend!

Natalia Angelini

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