A substitute decision-maker is a designated person authorized to make decisions on behalf of a patient who is unable to make important decisions about their own personal care. This includes choices about health care, medical treatment, nutrition, living arrangements, hygiene and safety.
Who can be a substitute decision-maker?
A substitute decision-maker may be a spouse, partner, companion, family member or trusted friend who is capable of making these important decisions, reflective of their loved one’s needs and wishes.
Under the Health Care Consent Act, 1996 (the Act), a substitute decision-maker must be:
- Capable of making the decision (understands the information that is relevant to the decision and appreciates the reasonably foreseeable consequences of the decision);
- 16 years of age or older;
- Available to make the decision; and
- Not prohibited by court order or separation agreement from having access to the incapable person, or giving or refusing consent on his or her behalf.
An individual can identify a substitute decision-maker (or more than one), and that decision-maker would be required to sign a legal document called a Power of Attorney for Personal Care. If a patient does not select someone to support this task, the law outlines a list of people who can act as their substitute decision-maker. The Act outlines a list of people who can act as the substitute decision-maker, as follows:
- Attorney for Personal Care
- Representative appointed by the Consent and Capacity Board (CCB)*
- Spouse or Partner
- Child (over the age of 16 years) or parent or Children’s Aid Society (if applicable)
- Parent with only right of access
- Brother or sister
- Any other relative
- Office of the Public Guardian and Trustee
- When a loved one is in a hospital and incapable of making decisions, the substitute decision-maker may need to decide if the person can return home or would be better suited to live in a long-term care home. If the person goes to long-term care, the substitute decision-maker needs to decide how the loved one is cared for in terms of food, clothing, hygiene and safety.
- Mr. S is a Home and Community Care Support Services patient with advanced Alzheimer’s disease. Mr. S has a Power of Attorney for Personal Care which names his spouse as his attorney and their daughter as the only alternate. Unfortunately, his daughter has been deceased for several years and his wife passed away yesterday. The care team confirms that Mr. S has no other biological children or living siblings. However, Mr. S does have a nephew who is listed on his file as a contact and the care team has determined that he meets the criteria to act as, and is willing to, oversee responsibilities as Mr. S’ substitute decision-maker moving forward.
Further understanding a substitute decision-maker’s roles and responsibilities
The role of a substitute decision-maker can be challenging. This responsibility means the authorized person must make decisions that are aligned with the previously expressed wishes of the patient, or if the wishes are unknown, what is in the best interest of the patient.
In instances when someone does not wish to take on the role of a substitute decision-maker, or finds themselves unable to continue as a substitute decision-maker, a Home and Community Care Support Services care coordinator will turn to the next highest ranking individual who meets the requirements to act as substitute decision-maker, in accordance with the law.
Substitute decision-makers for long-term care settings
It is important to note that a person may be incapable of making decisions related to long-term care admission but still be capable of making decisions regarding other matters, such as treatment, personal care or finances.
If someone is capable of making a decision, the person’s family, friends and health care providers must accept the choice even if they do not agree with it. In Ontario, the Act defines a person as being capable of making a decision regarding admission to a long-term care home if they:
- Understand the relevant information to making the decision; and
- Are able to appreciate the reasonably foreseeable consequences of the decision.
The Act also covers decisions about treatment, admission to long-term care and personal assistance services for people in long-term care homes.
- Advance Care Planning Ontario’s substitute decision-makers resource guide
- Ontario Caregiver Organization’s guide to understanding health privacy and consent in Ontario
- Frequently asked questions on privacy and consent for caregivers supporting someone incapable of making their own decisions