What happens when you can’t make decisions regarding your own personal or medical care? Let’s say you’re temporarily incapacitated. Who can make them for you?
The rules about this vary from country to country and even province to province. In Ontario, you can designate someone to act on your behalf – your substitute decision-maker – in the event you’re not able to make these sorts of decisions yourself.
You can do this by completing a Power of Attorney for Personal Care form. The form can be downloaded from the Ontario Ministry of the Attorney General’s website. You can complete it yourself or involve a lawyer.
If you need more information and you prefer to speak directly with a lawyer, Tea & Toast has resources to support you on your journey.
Be sure to discuss this with the person you designate as your substitute decision-maker ahead of time. It’s also wise to inform other members of your family so there are no disputes when someone needs to step in on your behalf.
If someone – like an aging parent – has asked you to act as their substitute decision-maker, make sure that it’s properly documented on a Power of Attorney for Personal Care form. Without the form, someone else could be asked to take on this role.
In the absence of a Power of Attorney for Personal Care, there’s a hierarchy set out in Ontario law of who would be approached to decide on someone's behalf.
Personal care decisions can be about things like medical treatment. They can also be about where you live, what you eat, who helps you dress and wash yourself, what you wear, who ensures your safety. That sort of thing.
When does a substitute decision-maker step in?
The only time your substitute decision-maker should be asked to step in is if you’re incapable of making the decision yourself.
According to Ontario’s Office of the Public Guardian and Trustee, a person is incapable of making personal care decisions when they “can’t understand the information that is relevant to the particular personal care decision or can’t appreciate what could happen as a result of making a certain decision (or not making a decision) about the matter.”
Suppose your mom has dementia. Several years ago, she put in place a Power of Attorney for Personal Care that named you as her substitute decision-maker. She’s recently developed kidney disease and her doctor recommends she go on dialysis. However, he realizes after talking with her that she’s unable to understand the consequences of going on dialysis or not. He then asks you to make the decision on her behalf of whether to consent to dialysis.
In that case, what do you do? Ideally, when your mom was still in the very early stages of dementia, you and she discussed what her preferences would be if you had to make decisions for her. If that’s the case, then you should use her stated wishes to guide your decision about dialysis.
But if such a discussion never happened or her stated wishes don’t offer you much guidance as far as dialysis is concerned, then you’d be expected to act in her best interests. In other words, you’d need to make sure you have a thorough understanding of what’s likely to happen if your mom goes on dialysis, what’s likely to happen if she doesn’t, and decide what you think is best for her.
It’s important to note that someone may be incapable of making one type of personal care decision, but still be capable of making another. For instance, your mom may not be able to decide for herself whether to consent to dialysis, but she may still be quite capable of deciding what to wear when to have a bath, and what to eat. She may even continue to live on her own and remain quite active.
Just because a person was incapable of making a decision on one occasion doesn’t necessarily mean that they’ll be incapable of making a similar decision on other occasions (even if that person has dementia). For instance, your mom’s ability to think clearly may fluctuate from hour-to-hour or day-to-day. So, if you’re trying to get her to make a decision one day about, say, attending an adult day program, and you can’t seem to get her to understand what it’s about, you may want to try having the conversation a few days later to see whether she might be capable of making an informed decision then.
So, who determines whether someone is incapable of making a decision? In our example, that would be you, your mom’s designated substitute decision-maker. There are a couple of exceptions, though. If the decision is about medical treatment (as in the case of dialysis) or admission to a long-term care home, a health care professional has to decide whether she is capable of making the decision herself.
Answers to frequently asked questions about powers of attorney can be downloaded from Ontario’s Office of the Public Guardian and Trustee.
Need help having conversations with an aging parent about a Power of Attorney and taking the next steps in a move? We can help.
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