All About Estates

What an Attorney for Personal Care Can Do

In Ontario, a power of attorney for personal care is defined in the Substitute Decisions Act (SDA) and allows the appointed attorney to act as the substitute decision maker (SDM) for an incapable person. The appointed attorney is given the authority to make decisions such as: medical treatments, admission to a care facility, or hiring a personal assistance service. Where there is no appointed attorney for personal care, the Health Care Consent Act (HCCA) establishes a hierarchy of persons entitled to act as SDM.

Unlike a continuing power of attorney for property (which may become effective immediately on signing), a power of attorney for personal care can only be used during the period of time that the grantor is incapable of making decisions relating to proposed healthcare intervention.

Pursuant to the SDA and the HCCA, duties of an SDM include acting diligently and in good faith in the incapable person’s best interests. Factors the SDM must take into consideration when deciding the incapable person’s best interests include:

  • The values and beliefs the person held when capable;
  • The person’s current wishes, if they can be ascertained; and
  • Whether the decision is likely to:
    • Improve the quality of the incapable person’s life,
    • Prevent the incapable person’s quality of life from deteriorating, or
    • Reduce the extent to which, or the rate at which, the incapable person’s quality of life deteriorates; and
  • Whether the benefit of a course of action outweighs the risk of harm.

Duties of a SDM also include:

  • As far as possible, to try to foster the person’s independence;
  • To choose the least restrictive and intrusive course of action that is available and appropriate;
  • To explain to the incapable person, to the extent possible, the attorney’s powers and duties;
  • To encourage the incapable person to participate in his or her personal care decisions, to the best of his or her abilities;
  • To foster regular personal contact between the incapable person and supportive family members and friends; and
  • To consult with, from time to time, supportive family and friends who provide personal care for the person.

Invariably, people who are incapable of consenting to living in long term care (LTC) also tend to be incapable of consenting to the proposed treatments in LTC. This means care workers at LTC facilities routinely consult with SDMs.

Unfortunately, LTC workers regularly experience antagonistic, distrustful, and frankly hostile responses from SDMs regarding proposed treatments, both for physical and mental health. I suspect reason for this includes projected guilt over the need for LTC. However, another reason may be the lack of understanding of the role of a SDM. One solution is to promote a better understanding of what the SDM’s role involves.

In addition, healthcare providers need to understand what their options are when confronted by a SDM who is unable to fulfill their role (either because he is unwilling to make a decision or cannot make a decision because of an inability to understand the relevant information). Similarly, healthcare providers need to know what to do if they encounter a SDM who seems unwilling to act in the incapable person’s best interests.

Where the SDM is unable to fulfill their role, healthcare providers have the option to consult the next highest ranking person(s) on the HCCA hierarchy (this includes the Office of the Public Guardian and Trustee if no alternative SDM is available). For SDMs who appear to be acting against the incapable person’s best interests, healthcare providers may apply to the Consent and Capacity Board. The Board will determine whether the SDM has complied with the rules for making substitute decisions. If not, the Board will order the SDM to comply with the HCCA. If the SDM does not comply with the Board’s order, then decision making authority moves from the SDM to the next qualified and available person in the hierarchy of decision makers.

About Dr. Richard Shulman
Dr. Shulman is a Geriatric Psychiatrist, and is the Service Medical Director for Seniors Mental Health Services at Trillium Health Partners (Mississauga Hospital, Credit Valley Hospital and Queensway Health Centre). He is available for independent medical-legal capacity assessments. He is an assistant professor at the University of Toronto. Email: Richard.Shulman@thp.ca

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