AREAS OF PRACTICE
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Advance Care Planning
As people get older, they may begin to have conversations with loved ones about their wishes regarding medical intervention, personal care, assisted living and related issues. By preparing powers of attorney and advance directives, a person can ensure that their preferences regarding medical treatment and personal care will be respected at a critical time when they may be unable to express these wishes themselves.
A power of attorney for personal care is a legal document authorizing an attorney to make personal care decisions on the grantor’s behalf, and may be subject to as many restrictions and conditions as the grantor wishes. Advance care planning is an important process by which an individual can establish his or her own parameters as to what treatments may be administered in a range of medical scenarios or in the event of a terminal condition. An advance directive is a record of a person’s wishes which a substitute decision-maker can refer to should they have to make care-related decisions on an incapable person’s behalf.
It is important to ensure that an individual’s wishes are widely communicated to those who may be called on to give (or withhold) consent to a proposed medical treatment. A person called on to make care decisions for another is legally bound to follow any known instructions and preferences unless it is impossible to do so, in which case they must act solely in the person's best interest.
A person is presumed to be capable of making health and personal care decisions unless there are reasonable grounds to suspect incapacity, meaning that they are unable to make some or all of these decisions. A person can be found incapable after an inquiry is made as to whether they are able to understand the information relating to a decision and appreciate the parameters of the decisions being made. These parameters include the nature and purpose of the proposed treatment, the foreseeable benefits and risks, the alternative courses of action available, and the expected consequences of not having the treatment.
Where a person is found to be incapable of making care decisions, consent may be given or refused on their behalf by a substitute decision-maker who is chosen according to a hierarchy set out in the Health Care Consent Act, 1996. A person has the right to review a finding of incapacity or to request that an alternative or additional substitute decision-maker be appointed by appealing to the Consent and Capacity Board (www.ccboard.on.ca). A non-emergency treatment or a non-crisis admission to a care facility (such as a Long-Term Care Home) cannot be carried out until the Consent and Capacity Board has given their decision or 48 hours have passed without a formal application having been made.
It is important to have a voice in decisions about your health and personal care options. Preparing an advance directive can help you to reflect on what is meaningful to you, document your values, beliefs and wishes, and create an advance care plan that best suits your needs.
Substitute Decision-Makers Ranking Order (Health Care Consent Act, s.21):
1. Guardian appointed by the court with authority for health care decisions
2. Attorney for personal care (if Power of Attorney confers that authority)
3. Representative appointed by the Consent and Capacity Board
4. Spouse or partner
5. Child (if over 16 years of age) or parent
6. Parent with right of access only (custodial parents rank ahead of non-custodial parents)
7. Brother or sister
8. Any other relative by blood, marriage or adoption
9. Office of the Public Guardian and Trustee (PGT) (the provincial PGT is the substitute decision-maker of last resort if there is no other person to act for you)
Where decision-makers of equal rank in the hierarchy cannot agree, the Office of the PGT may be asked to make the decision.