Area of Law: Seniors / Elder Law
Answer # 732
Losing capacity and the right to make decisionsRegion: Ontario Answer # 732
When situations causing serious illness or diminished mental abilities arise for any individual (whether a senior or not), that person’s capacity to make decisions may be reduced. The law recognizes that someone else may need to step in and make decisions. A person who makes decisions for another person is called a substitute decision-maker (SDM).
Ontario’s Substitute Decisions Act is a law that governs what may happen when someone is not mentally able to make certain kinds of decisions. The Act covers financial and property management decisions, and decisions about personal care, which include health care, food, housing, and safety.
The Act is administered by The Office of the Public Guardian and Trustee, which has a number of functions, including investigating reports of serious abuse or neglect of incapable people. While the Office sometimes becomes the guardian of an incapable person, it will do so only when there is no one else who can act on the person’s behalf when a guardian is needed.
Granting of this decision-making authority is not to be taken lightly. The SDM must be trusted to make decisions in an individual’s best interests. In some cases, it may be best to assign joint authority to both a family member and a lawyer or other professional. A lawyer can help you draft clear directives for an SDM.
Under the law, an SDM can be:
- a family member or caregiver;
- anyone chosen by a court or a government agency; or
- anyone chosen by the affected individual in advance, who is willing and able to act on their behalf.
An SDM cannot be:
- someone who is paid to provide personal care, such as a nurse, unless this person is also a spouse, partner or relative;
- someone who is mentally incapable; and
- someone who is under 16 years of age.
Appointing a Substitute-Decision Maker (SDM)
The Act sets out different rules for appointing an SDM, depending on whether the person will be making decisions about property or personal care.
If a person is incapable of making decisions regarding their property, there are three possible ways for an SDM to be appointed:
- Through a document called a “Continuing Power of Attorney for Property.” This is a written authorization in which a person specifies the decision-maker of his or her choice. The Power of Attorney must be made before the person becomes incapable.
- Through a process called “statutory guardianship.” This usually occurs if a person is assessed as incapable and did not make a Continuing Power of Attorney for Property before becoming incapable.
- Through the appointment of a guardian of property by the court. This method is considered a last resort, and there are strict limits on when it can be imposed.
If a person is incapable of making decisions about their personal care, there are two ways to appoint a decision-maker:
- Through a “Power of Attorney for Personal Care.” Like the Continuing Power of Attorney for Property, this written document must be made before the person becomes incapable. A Power of Attorney for Personal Care authorizes the attorney to make decisions that include medical treatment, and admission to a long-term care facility, or personal assistance services provided within such a facility; and
- Through the appointment of a guardian by the court.
If a person becomes unable to make decisions, their doctor or other healthcare provider must contact their SDM to seek their consent before the doctor or other healthcare provider can provide treatment.
For more information on how to choose an SDM, refer to the Ontario Ministry of the Attorney General and their Guide to the Substitute Decisions Act. More information about the rights and options available to individuals experiencing mental incapacity can be found from The Office of the Public Guardian and Trustee.
For legal advice and assistance in preparing powers of attorney, contact a lawyer.
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