Legalese_08-25

Jeff Green | Jun 26, 2008

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Recently I was asked if a person needed a “Living Will” if they already had a Power of Attorney for Personal Care. Although not of the same legal effect, a Living Will, as a statement of your treatment wishes, can be of great assistance to your Attorney in making health care decisions for you when you are no longer capable.

A Living Will or Advance Directive is a statement of instructions or wishes given by a “capable” person who is at least 16 years of age about medical treatments he or she would 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 a wish frequently contained in a Living Will or Advance Directive. It can also be included in a Power of Attorney for Personal Care, which is the legal document that enables you to appoint a person or persons, known as your attorney or Substitute Decision Maker, to make care decisions for you in the event of your incapacity.

Questions about Living Wills, Advance Directives and Powers of Attorney for Personal Care usually arise in the context of discussions about medical treatment and/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 and whether they will they be legally bound to follow your wishes.

Under Ontario’s Health Care Consent Act a health practitioner such as a Doctor, Chiropractor, Psychologist, Dentist, or Optometrist, 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 the Health Care Consent Act requires that consent 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 also sets out a list of persons, in order of priority, who may give or refuse consent to treatment if the patient is deemed 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 and implement your prior treatment wishes.

Further down on the list is the incapable person’s spouse or partner, followed by his or her 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.

In making a treatment decision for the incapable person the SDM must make a decision in accordance with the person’s most recently expressed wishes. These wishes may have been communicated verbally or in writing such as in the Power of Attorney for Personal Care or in a Living Will or Advance Directive. Whatever the format, a person’s treatment wishes are of little use unless they have been communicated to their chosen SDM under a Power of Attorney for Personal Care, or in the absence of a Power of Attorney for Personal Care, to family members who may be recognized as SDMs under the Health Care Consent Act, as a health practitioner cannot act on an Advance Directive or Living Will without first obtaining consent from the appropriate SDM. The only exception, as previously noted, is when there is an emergency.

When it is not an emergency and where the person has either not expressed any prior treatment wishes, or if in the particular circumstances it is impossible to comply with the person’s prior capable wishes, then the SDM must act in the incapable person’s best interests.

Living Wills, like Powers of Attorney, are valuable planning tools but they can be misused. In this column I have only been able to highlight some of the issues involved. If you would like to know more about Living Wills, Advance Directives or Powers of Attorney, please contact Rural Legal Services or your own lawyer.