All About Estates

Who is Your Substitute Decision-Maker?

Under the Heath Care and Consent Act  (“HCCA”), every person in Ontario has an automatic Substitute Decision-Maker (“SDM”) who can provide or refuse consent to medical treatment if the person becomes incapable of providing consent.

However, there is still a great amount of confusion about SDMs and who they are, especially when a person has not appointed an attorney for personal care.

Under s. 20 (1) of the HCCA, the hierarchy of SDMs is as follows:

  1. Guardian of the Person;
  2. Attorney for personal care;
  3. Representative appointed by the Consent and Capacity Board;
  4. Spouse or partner;
  5. Child or Parent;
  6. Parent with right of access;
  7. Siblings;
  8. Any other relative; and
  9. the Office of the Public Guardian and Trustee.

The person who ranks highest on this list legally becomes the SDM for a patient incapable of providing informed consent to medical treatment.

Nadia Incardona, a physician at Michael Garron Hospital in Toronto, is raising awareness about SDMs and their role in making medical decisions for incapable patients.  Patients often confuse their legal SDM under the HCCA with their emergency contact.  They may be under the mistaken belief that if they become incapable, the treating physician will seek consent from the person they have identified as their emergency contact but legally, the treating physician will have to seek consent from the highest ranking SDM under the HCCA.

In cases of family estrangement, things can get tricky. For example,  an older patient with few living relatives may not know that if he becomes incapable, the hospital may try to contact a sibling he hasn’t spoken to in decades to obtain consent absent other SDMs. Also, for a variety of reasons, a person may prefer that someone other than their spouse make treatment decisions on their behalf if they become incapable.

If you do not agree with your automatic SDM under the HCCA, the easiest thing to do is appoint an attorney for personal care while you still have the capacity to do so. In order to raise awareness for advance care planning, several organizations including Speak Up Ontario are working to increase public awareness for advance care planning. By choosing your own attorney for personal care, you also have the opportunity to document your wishes and discuss those wishes with your attorney to help guide them to make decisions on your behalf.

Thanks for reading.

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. She obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She is a member of the executive of the Trusts & Estates Section of the Ontario Bar Association and a member of the Toronto Lawyers Association. dvieira@devrieslitigation.com

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