A Guide to Substitute Decision-Making in Ontario

Substitute decision-making is critical to planning for an individual’s care and property management, even if they lose the mental capacity to make their own decisions. This blog post will provide a simple overview of this complex legal topic and the importance substitute decision-makers play when someone loses the ability to make decisions for their own life.
Key Terminology for Substitute Decision-Makers
Here are some of the most important terms related to substitute decision-makers.
Substitute Decision-Maker (SDM)
A substitute decision-maker (SDM) is a person legally authorized to make decisions on behalf of another individual who is incapable of making those decisions for themselves.
Incapable Person
An incapable person is someone who, due to illness, injury, or mental disorder, cannot understand the nature and consequences of a decision or communicate their decision.
Power of Attorney for Personal Care (POAPC)
A Power of Attorney for Personal Care (POAPC) is a legal document allowing you to appoint a substitute decision-maker to make decisions about your personal care. You can specify the scope of authority granted to your SDM and revoke the POAPC at any time. Common things a POAPC governs are choices about health care, living arrangements, daily care and hygiene, and medical treatment.
Power of Attorney Over Property
Also referred to simply as a substitute decision-maker, a person with Power of Attorney Over Property has the authority to make financial decisions for the person who granted the power of attorney (the grantor or incapable person).
Health Care Consent Act, 1996
The Health Care Consent Act, 1996 outlines the legal framework for substitute decision-making in Ontario. It establishes a hierarchy of potential SDMs if a person has not appointed one through a POAPC.
Substitute Decisions Act, 1992
The Substitute Decisions Act, 1992 governs substitute decision-making for property matters in Ontario. It outlines the process for appointing a property guardian or committee to manage the financial affairs of an incapable person.
Who Can Act as a Substitute Decision-Maker?
In Ontario, the Health Care Consent Act, 1996 sets out the requirements for becoming a substitute decision-maker (SDM). The SDM must be:
- 16 years of age or older;
- Available and capable of making decisions for the person who is unable to make their own decisions (i.e. the SDM must understand the nature of their role and reasonably foresee the consequences of making the decisions); and
- Someone who is not prohibited by court order or agreement from having access to or making decisions for the incapable person or on their behalf.
The Act also sets out a list of people who can act as an SDM, including:
- The incapable person’s guardian;
- Their Attorney for Personal Care;
- A representative for the incapable person appointed by the Consent and Capacity Board;
- Their spouse or partner;
- Their child (over the age of 16), parent, or Children’s Aid Society;
- Their sibling or other relative; or
- The Office of the Public Guardian and Trustee.
Role of the Office of the Public Guardian and Truste
The Office of the Public Guardian and Trustee (PGT) is a provincial government agency responsible for protecting the rights and interests of people who are incapable of managing their own affairs. The PGT may be appointed to act as an incapable person’s substitute decision-maker where no one else is available or appropriate. The PGT may also appoint other individuals to manage an incapable person’s financial or personal care.
Rights & Responsibilities of Substitute Decision-Makers
Substitute decision-makers are responsible for acting in the incapable person’s best interests. They must:
- Make decisions based on the incapable person’s wishes and values, as expressed before they became incapable;
- Consider the potential risks and benefits of different options;
- Seek advice from health care professionals and other experts as needed;
- Take into account any other directions created by the incapable person before they lost capacity, including an Advanced Care Directive or Living Will;
- Keep the incapable person informed about decisions made on their behalf, to the extent possible; and
- Act honestly and in good faith.
Challenges & Considerations for SDMs
Being a substitute decision-maker can be a challenging and emotionally demanding role. Some common challenges include:
- Balancing competing interests: SDMs may face difficult decisions that involve balancing the wishes of the incapable person with their own beliefs or the opinions of other family members.
- Conflicts of interest: SDMs must avoid any situation where their personal interests conflict with the incapable person’s best interests.
- Managing complex medical or financial situations: SDMs may need to navigate complex medical procedures or financial matters, requiring a high level of knowledge and understanding.
- Dealing with the emotional toll: Making decisions about someone’s health, well-being, and property can be emotionally draining, especially when dealing with sensitive or end-of-life issues.
- Decision-making capacity fluctuations: The incapable person’s mental capacity may vary over time, making it difficult to determine who should make decisions.
- Cultural and religious beliefs: The SDM must respect and incorporate the incapable person’s cultural and religious beliefs into decision-making.
Tips for Effective Substitute Decision-Making
- Open communication: Maintain open and honest communication with the incapable person, healthcare providers, and other family members.
- Seek guidance: Consult with healthcare professionals, lawyers, and other experts as needed.
- Document decisions: Keep detailed records of all decisions made on the incapable person’s behalf.
- Prioritize the incapable person’s best interests: Always consider the best interests of the incapable person when making decisions.
- Self-care: Take care of your own mental and emotional well-being to avoid burnout.
Eisen Law: Providing Compassionate & Proactive Advice on Substitute Decision-Makers in Toronto
At Eisen Law, our skilled estate lawyers help parties involved in substitute decision-making disputes understand their rights and responsibilities. We advise on all elements of substitute decision-making, including passing of accounts, guardianship, and attorneys for property and personal care.
Eisen Law provides pragmatic, comprehensive advice and advocacy in estate disputes, trust matters, guardianship, and powers of attorney in Toronto and throughout Ontario. To schedule a confidential consultation with a member of our team, please call 416-591-9997 or contact us online.