Legalese_jan_27

Jeff Green | Jan 27, 2005

Feature article January 27, 2005

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This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

Advance Directives

Recently, 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.

An 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.

The 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.

A 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.

The 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.

Next 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.

Further down on the list is the incapable persons 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 SDMs of equal ranking under the legislation.

In 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.

When it is not an emergency and where there is no Advance Directive, or if it is impossible to comply with the persons prior capable wishes, then the SDM must act in the incapable persons best interests.

Advance 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