Estate planning and planning for the future are sometimes difficult tasks, particularly when it comes to end-of-life planning. When forced to confront their own mortality, many people are hesitant to dive in and make a plan. Unfortunately, this may result in their wishes being unknown if an emergency situation arises.
In Ontario, when a person is incapable of making their own decisions with respect to their care, the Health Care Consent Act (the “HCCA”) and the Substitute Decisions Act (the “SDA”) allow others to make decisions on the incapable person’s behalf. Section 20 of the HCCA sets out a list of persons who may give or refuse consent to treatment on behalf of someone who is incapable to give their own consent at the time. The list of people who may make decisions is as follows:
- The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
- The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
- The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
- The incapable person’s spouse or partner.
- A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
- A parent of the incapable person who has only a right of access.
- A brother or sister of the incapable person.
- Any other relative of the incapable person.
A person included in this list may give or refuse consent only if no person described in an earlier paragraph is willing or available to do so. The SDA, in turn, deals with Powers of Attorney and Guardians.
If you have not taken the time to think through your wishes with respect to treatment and communicate them to others, it is difficult to know whether your substitute decision maker under the HCCA or SDA will make the choice that you would have made yourself, had you been capable. One way of dealing with this issue is by clearly expressing your wishes, such as with a “living will”. The Ministry of the Attorney General describes a “living will” as an expression that is “sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment…[t]he term ‘advance directive’ is also frequently used to refer to such a document.” The Ministry of the Attorney General also notes that you can include your treatment wishes in a Power of Attorney document to ensure that your attorney is aware of them.
Pursuant to the SDA s. 66(3), guardians of the person and attorneys for personal care have a duty to make decisions on an incapable person’s behalf in accordance with the incapable person’s wishes, if known. The guardian or attorney must also use reasonable diligence to ascertain whether the incapable has set out such wishes. Accordingly, it is important to consider including your wishes in your Power of Attorney for personal care and communicating them to your attorney, to ensure that your wishes are known.
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