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Advance care planning: who will make decisions when you can’t?

Life is unpredictable. Imagine you find yourself in a coma after suffering a serious car accident. You are unable to communicate and your doctors do not feel that you will leave the hospital alive. Do you want to be kept alive using machines? Does anyone know your wishes? Or your mother in the in beginning stages of Alzheimer’s. At some point she may not recognize the people around her and someone will have to make decisions about her medical care. Will it be you? Your siblings? Someone else? How do you know if the choices are what she would have wanted?

An advance care plan is more than a document, it's a conversation.

An advance care plan is more than a document outlining your wishes for care at the end of life – it is also a conversation that you have with the person or people who will act for you in the event that you cannot speak for yourself. We understand that talking about these things can be uncomfortable but it is so very important. Conveying your values and wishes will help you, your loved ones or anyone else that will act as your substitute decision maker (SDM) talk to health professionals about difficult decisions that may have to be made about your care at the end of life.

Who can be your substitute decision maker?

In Ontario, you can choose someone (or more than one person) to be your SDM by drafting a Power of Attorney for Personal Care. A Power of Attorney for Personal Care authorizes the designated person(s) to act on your behalf with regards to your personal care and medical treatment. It is important to understand that this comes into effect ONLY if you are incapable of making such decisions yourself. This document may also set out your specific wishes for the type of medical treatment you want to receive (or not) when you become incapacitated. For example, some individuals want to prolong life as long as possible using medical interventions while others would not want to be hooked up to machines if there is no chance of recovery.

What if I don't have a Power of Attorney for Personal Care?

If you do not have a Power of Attorney for Personal Care the Ontario Health Care Consent Act includes a hierarchy of substitute decision makers. The person or persons in your life that are the highest ranked in this hierarchy and that meet the requirements will be your SDM for health care. If there is no one who meets the requirements to be a SDM, then the Public Guardian and Trustee (PGT), a public government organization, is assigned. We highly recommend that every adult (young or old) have Power of Attorney documents in place. After all, you cannot predict when or how you will die. We have listed some examples of the complications that can arise from the alternative proceeding.

  • More than one person could be entitled to act as your substitute decision maker. For example, if you have 3 children (level 5 on the hierarchy), all three are entitled to act as your SDM. They must act together and agree on any decisions for your health care. If there is conflict among people who are equally entitled, and they all want to act, the Public Guardian and Trustee (PGT) is required to take their place. The PGT does not choose between the disagreeing decision makers but “shall make the decision in their stead” without ever knowing you or your wishes.
  • The assigned substitute decision maker may not be willing to assume the responsibility. Making end of life decisions for someone is an extremely difficult and often daunting position to be put in, especially if there was no prior conversation had and the person named is not clear on what you would have wanted. Any SDM has a right to refuse to act and in such a case, the healthcare provider would move down the hierarchy until they find someone who is able and willing.
  • If someone who does not make the hierarchy list (for example a close friend) wants to act as your substitute decision maker, they must apply to the Ontario Consent and Capacity Board which can be a timely process.

Can I change my mind?

Yes. Understandably our lives and the people around us change over time. We recommend that you review your advance care plan regularly to be sure it still reflects your wishes and that you are comfortable with your choice of substitute decision maker(s). Any changes to a Power of Attorney must be made in writing via a revocation and/or by preparing a new Power of Attorney for Personal Care document. Don't forget to not only discuss your wishes with your named substitute decision maker, but with others such as your doctor, lawyer, and other family members or friends as well. It may be a good idea to provide a copy of your advanced care plan to these people in the event that your SDM is not immediately reachable in an emergency situation.

Remember, you may never need your advance care plan – but if you do, you and the people around you will be glad that you had these conversations.


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Posted In: Estate Planning