Health & personal care directives

(a) What is the proper term for this type of document in Ontario and what is the legislation that governs it?

The document is called a “power of attorney for personal care”. A power of attorney for personal care is governed by Part II of the SDA.

(b) What are the formalities for executing this document in Ontario and can it be executed virtually?

A power of attorney for personal care must be executed in the presence of two witnesses, each of whom must sign the power of attorney as a witness, according to Ontario’s SDA.

The following persons cannot be a witness (SDA ss. 48 and 10):

1. The attorney or the attorney’s spouse or partner.

2. The grantor’s spouse or partner.

3. A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.

4. A person whose property is under guardianship or who has a guardian of the person.

5. A person who is less than 18 years old.

A power of attorney cannot be executed virtually, but the requirement for witnesses can be satisfied by using audio-visual communication technology (SDA s. 3.1(2)). The grantor and witnesses must be able to see, hear and communicate with each other in real time. The parties may sign complete, identical counterpart versions of the power of attorney, which together constitute the power of attorney (SDA s. 3.1(3)).

(c) In the absence of a written directive, to whom will medical professionals speak regarding treatment decisions for an individual who is incapable?

Summary

If a person is not capable with respect to a treatment, then consent may be given or refused on behalf of the person by a list of persons.

Discussion

If a person is not capable with respect to a treatment, then consent may be given on behalf of the person, according to Ontario’s Health Care Consent Act (the “HCCA”). The following persons are entitled to give consent (HCCA s. 20):

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person’s spouse or partner, or if they have cohabited for at least one year, but not if they are separated.

5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person.

The listed individuals must be themselves capable of giving consent with respect to the treatment, must be at least 16, must not be prohibited by a court order from having access to the incapable person, must be available, and must be willing to assume responsibility of giving or refusing consent (HCCA s. 20(2)).

A person listed in the above may only give consent if there is no other person ranking higher in priority on the list. If none of the persons listed in the above list are available, Ontario’s Public Guardian and Trustee (the “PGT”) may give or refuse consent. Similarly, if two people disagree and rank of the same priority, the PGT may decide in their place.