This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.
I was asked if an “Advance Directive” was necessary if a person had
already made a Power of Attorney for Personal Care. Although not
required, an Advance Directive may be of great assistance to your
Attorney in making decisions on your behalf if and when you are no
longer capable of doing so.
Questions about Advance Directives and Powers of Attorney for Personal
Care usually arise in the context of discussions about medical
treatment or admission to a long-term care facility. Of concern is who
will have the legal authority to make decisions about your personal
care if you become incapable.
Advance Directive is a statement of instructions given by a “capable”
person who is at least 16 years of age about medical treatments he or
she would like or would not like to receive in certain situations. For
example, a request made by an individual when mentally capable that
they would not like to be kept alive on a life support system if they
were in a vegetative state and unlikely to recover, is an Advance
Directive may be written, but it need not be. It can be delivered
orally or in some other format such as on video. It can also be
included in a Power of Attorney for Personal Care. What is perhaps more
important than the format of the Directive is when and by whom it can
be acted on.
health practitioner (i.e., a Doctor, Chiropractor, Psychologist,
Dentist, Optometrist, etc.) must obtain informed consent before
administering a treatment. The consent must be obtained from the
patient if the patient is mentally capable. If the health practitioner
is of the opinion that the patient is not mentally capable of making
the decision, then consent must be obtained from a “Substitute Decision
Maker” (SDM). Only in emergency situations can a health practitioner
administer treatment without first obtaining consent.
Health Care Consent Act sets out a list of persons, in order of
priority, who may give or refuse consent to treatment if the patient is
determined to be incapable of consenting to the treatment proposed by
the health practitioner. At the top of the list is a “Guardian of the
Person” – an individual appointed by the Court to make personal care
decisions on behalf of another person.
in line is an Attorney appointed under a Power of Attorney for Personal
Care. The Power of Attorney document must specify that the Attorney has
authority to give or refuse consent to treatment. By making a Power of
Attorney for Personal Care you have control over who will make personal
care decisions for you.
down on the list is the incapable person’s spouse or partner, followed
by child or parent, brother or sister, or other relative. In the
unfortunate event that an incapable person does not have a SDM, the
Public Guardian and Trustee for Ontario can give or refuse consent to
treatment for that person. The Public Guardian and Trustee will also be
called upon to make a decision in the event that a dispute arises
between two or more SDM’s of equal ranking under the legislation.
making a treatment decision for the incapable person the SDM must make
a decision in accordance with the most recent Advance Directive that is
applicable to the circumstances. An Advance Directive is therefore an
important guide to a SDM in making treatment decisions for an incapable
person. The Directive is of little use unless it has been communicated
to the potential SDMs, such as your family and your Attorney for
Personal Care, as a health practitioner cannot act on an Advance
Directive without first obtaining consent from the appropriate SDM. The
only exception is when there is an emergency.
it is not an emergency and where there is no Advance Directive, or if
it is impossible to comply with the person’s prior capable wishes, then
the SDM must act in the incapable person’s best interests.
Directives, like Powers of Attorney, are valuable planning tools but
they can be misused. In this column I have only been able to highlight
a few of the issues involved. If you would like to know more about
Advance Directives or Powers of Attorney you should contact your own
lawyer or this Clinic.
- Susan Irwin, Lawyer/Executive Director