Bourne, Jenkins & Mulligan

June 15, 2003
Who instructs the doctor if you can't?

by Amy MacMillan

Ontario’s Health Care Consent Act determines who may authorize consent to treatment when a patient is unable to do so due to mental incompetence, whether temporary or long term. You might assume that your spouse or child is legally entitled to give consent to treatment if you are unable to do so; however in law a spouse is the fourth choice in order of priority, and a child is fifth.

First in priority are Guardians of the Person appointed by the court, which are normally only appointed in cases where the patient has not signed a Power of Attorney for Personal Care.

Second in line is an Attorney for Personal Care. Under Ontario’s Substitute Decisions Act, there are two different types of Power of Attorney document: the Continuing Power of Attorney for Property, and the Continuing Power of Attorney for Personal Care. A Power of Attorney for Property does not give your appointee any consent-giving rights, but a Power of Attorney for Personal Care is designed for that purpose.

Third in line is a patient’s representative appointed by Ontario’s Consent and Capacity Board. Fourth in line is a spouse or partner, including same sex partner or common law spouse but excluding a separated spouse. Fifth in line is a child, a custodial parent of a child under 18, or the Children’s Aid Society, depending on the circumstances. Sixth is a parent with access rights, seventh is a brother or sister, and eighth is any other relative.

A Power of Attorney for Personal Care is the best protection a person can have to ensure that his or her wishes with respect to “heroic” medical measures, resuscitation, and other sensitive issues are respected. Although Powers of Attorney can be prepared without a lawyer, the cost of using a lawyer to draft them is very modest, and lawyers are trained to cover a variety of difficult issues thoroughly. A poorly drafted Power may result in the expense of having a guardian appointed by the court or obtaining a Consent and Capacity Board ruling, which may not reflect your wishes.

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