Health Care Consent & Advance Care Planning FAQ

Under the Health Care Consent Act, as long as the person is capable, they make their own decision.  An evaluator will determine whether your father is incapable to make a decision with respect to placement.  If he is capable, then he will make his own decision.  If he is found to be incapable, he has a right to challenge that finding at the Consent and Capacity Board.  If he does not appeal the finding or if the board confirms the finding, then the highest person in the “hierarchy” of substitute decision-makers set out in the s. 20 of the Health Care Consent Act will make that decision.  However, it does not give the substitute decision-maker the right to make any other decisions.

If you have named someone in a power of attorney for personal care the person who is getting consent cannot simply decide that they do not like the person or their decisions and refuse to accept them.  However, there are several reasons that an attorney for personal care might be refused.

If there are questions about the validity of the power of attorney for personal care itself, the person getting consent may refuse to accept the document and the attorney for personal care may not have legal authority to make the decision.  They may accept an older power of attorney for personal care as valid, or they may go to the next person on the hierarchy for consent.

If the person getting consent does not believe your attorney is mentally competent to make the required decision, then they will go to the next person in the hierarchy for consent.  There is no “appeal” to the Consent and Capacity Board when an attorney is felt to be incapable, as there is no formal finding.  If there are no co-attorneys or substitute attorneys who can act under the power of attorney for personal care, then the person could apply to the Consent and Capacity Board to be made the “Board appointed representative”.  In doing so, the Board would have to be satisfied that the person being appointed were mentally capable of making the decision.

IF the person getting consent does not believe that the attorney for personal care or any other substitute decision-maker is making a decision that is not in compliance with the rules of substitute decision-making set out in the Health Care Consent Act, they cannot simply ignore that decision or decision-maker.  Instead, they have to bring an application to the Consent and Capacity Board called a “Form G” application.  A hearing will be held where evidence will be heard as to whether or not your decision-maker is making decisions in compliance with the law.  IF they are not, the Board will order them to do so or they will lose authority to make that decision.

It is highly recommended that where the attorney for personal care is not being allowed to make decisions that the person and/or their attorney seek legal advice.

The Advocacy Centre for the Elderly does not recommend that anyone sign Level of Care forms.

Capable people are entitled to express wishes about future care, but are never required to do so. It is important for people to have discussions about what care they wish to have in the future, so that if they become incapable their family will be able to make decisions that they want.  However, these types of documents are being used as “consents.  Even if signed by a capable person, informed consent is required at the time of treatment, either from the capable person or their substitute decision-makers.  Unfortunately, this often does not happen, and health practitioners treat or don’t treat based upon these documents which were signed without knowing how it would be applied.

Substitute decision-makers CANNOT make “wishes” and therefore cannot sign such documents.  If they know of a capable wish, for example that the person does not want to be resuscitated, they can advise the health practitioner of this wish.  However, substitute decision-makers can only give informed consent, which means that these documents cannot be signed by them.