Substitute Decision-Making

Ontario legislation and regulations govern substitute-decision-making to ensure the best interests of the individual are respected. Substitute decision-making is only necessary where an individual is not able to make decisions for him or herself. It is important to be fully informed about the requirements that may come into play for the specific circumstances of each individual.

Below are a few key ideas about substitute decision-making, which include links to sources of information and organizations that may be able to help you.

The Right to Make Decisions for Oneself
Each Ontario citizen has the right to make decisions for him/herself as long as he/she is mentally capable of making decisions. The rules for assessing mental capacity vary depending on the type of decision involved.

Substitute Decision Makers
If a person is not mentally capable of making a particular decision, then a substitute decision-maker should be in place to make decisions on the person’s behalf. Older adults are encouraged to appoint a substitute decision-maker in the event that they become mentally incapable of making important decisions about medical care, property or personal care through a serious illness or accident. The province of Ontario has legislation that governs the appointment and responsibilities of a substitute decision maker in the event that an individual is unable to make decisions for him/herself. If the person does not appoint a substitute decision-maker, legislation allows the government to make an appointment on the person’s behalf.

Government legislation defines four areas of decision-making:

Personal Care
Decisions about one’s own health care, nutrition, shelter, clothing, hygiene and safety; definitions of capacity to make decisions and the appointment of a substitute decision maker are governed by the Substitute Decisions Act.

Health Care
Decisions about treatment, admission to care facilities and personal assistance services; definitions of capacity to make decisions and the appointment of a substitute decision-maker are governed by the Health Care Consent Act.

Mental Health Care
Decisions about mental health treatment; identification of treatments that apply, definitions of capacity and the appointment of a substitute decision-maker are governed by the Mental Health Act.

Property
Decisions about property and finances; definitions of capacity to make decisions and the appointment of a substitute decision maker are governed by the Substitute Decisions Act.

Advocacy Centre for the Elderly (ACE)
ACE is a community based legal clinic for low income senior citizens, funded through Legal Aid Ontario and providing direct legal services to low-income seniors as well as public legal education.

Alzheimer Society
The Canadian Society provides education and consultation related to Alzheimer disease. The web site provides information on substitute decision-making related to people with dementia.

ARCH: A Legal Resource Centre for Persons with Disabilities
A specialty legal aid clinic dedicated to defending and advancing the equality-rights of persons with disabilities. Help can be obtained over the phone and from the ARCH website which offers access to many publications.

Community Legal Education Ontario (CLEO)
Provides information on many legal issues including Consent and Capacity and Substitute Decision-Making.

Consent and Capacity Board of Ontario
An independent provincial tribunal responsible to provide accessible adjudication of consent and capacity issues while balancing the rights of vulnerable individuals with public safety. The web site provides information sheets, forms and access to the Substitute Decisions Act, Mental Health Act, Health Care Consent Act, and the Personal Health Information Protection.

A Guide to Making Substitute Health Care Decisions
Describes the Role of the Public Guardian and Trustee in a question and answer format.

Office of the Public Guardian and Trustee
Part of the Family Justice Services Division of the Ontario Ministry of the Attorney General. The Office is responsible for protecting mentally incapable people, protecting the public's interest in charities, searching for heirs, investing perpetual care funds, and dealing with dissolved corporations.

Practice Guideline on Consent: College of Nurses of Ontario
Provides an overview of the Health Care Consent Act, Substitute Decisions Act and guidance to nurses on obtaining consent.

Psychiatric Patient Advocate Office (PPAO)
The PPAO provides individual and systemic advocacy services, rights advice services, public and health care professional education through speaking engagements, publishing reports and media releases. The web site provides Information on substitute decision-making under the Health Care Consent Act.

Toronto Rehab
The Toronto Rehab Brochure on Substitute decision-making is available as a .pdf file.