Who will decide your fate?
The government of Ontario recently passed new legislation which will greatly affect the medical treatment you receive should you be rendered unable to make your own decisions. This new legislation is especially important to pro-lifers in light of the current push for euthanasia and health-care rationing.
Will it provide doctors with a clear blueprint of the treatment you desire or will it stagnate the medical process with more time-consuming paperwork? Paul Dodds, a lawyer in private practice in Toronto, provides an overview of the new legislation.
The Ontario government has passed legislation making sweeping changes concerning mentally disabled persons. The legislation affects both those born with a mental disability, and those who, due to accident or illness, lose their mental capacity.
One major change is with Powers of Attorney. A Power of Attorney is a document in which you appoint someone else to make decisions for you. Many people are now being encouraged to sign a Power of Attorney, even though they are unsure why and are unaware of the consequences of doing so.
The new rules will come into effect in Ontario on April 3, 1995. Below is a guide to Powers of Attorney.
Power of Attorney for Property
The present law
If a person is mentally incompetent, no one is entitled to deal with his or her financial assets. To enable someone to act under such circumstances, an application must be made to court. This almost always involves hiring a lawyer, because few people are prepared to deal with the formalities of a court hearing on their own.
The court decides if the applicant is suitable to be the guardian of the financial affairs of the incapable person.
Whoever is appointed will be required to do the following:
- draw up a management plan
- file an annual statement of accounts
- post security if they live outside the province
The fact the person who will be in charge is a family member does not do away with these requirements.
None of this is required, however, if the person has previously given someone a Power of Attorney over his or her property, while mentally competent. In such a case, the person appointed is able to deal with the incompetent person’s assets without obtaining any court authorization.
The new law
In an effort to simplify what happens to the management of the finances of incompetent persons, and to ensure that their assets are protected, the Ontario government passed the Substitute Decisions Act. Responsibility for resolving such matters in some cases has shifted from the Courts to the office of the Public Guardian and Trustee.
Under the new laws, when a person is declared incapable under the Mental Health Act, the application is to the Office of the Public Trustee. It is assumed that the application can be made without a lawyer and the changes are intended to make life easier for the families of people who have been declared mentally incapable.
Nevertheless, the government’s attempt to simplify the process has created controversy. Under the new rules, the Public Guardian and Trustee is in charge of the person’s finances until someone else is approved to take over. The Trustee, although intended to act at arm’s length from the government, is in fact a government-paid official.
Under either the old or the new law, if you have financial resources and become incapable without having signed a Power of Attorney, you family will be faced with an elaborate time-consuming exercise.
Under the new rules, as before, anyone who wishes to take over the finances of a disabled person must
- establish that one is capable of managing the affairs
- file a management plan
- file a statement of accounts every year
- post security if resident outside the province
These requirements do not apply to a person you have appointed under a Power of Attorney, signed while you are mentally able.
Signing a Power of Attorney
Signing a Power of Attorney grants to the person or persons whom you name the power to deal with all your assets. Those granted a Power of Attorney can do everything with your property that you can do. They can write cheques on your accounts or even sell the house you live in. It is therefore a decision which should not be entered into without sound advice on the legal implications of doing so.
Powers of Attorney can contain restrictions. For example, you can give someone only limited powers such as the power to spend your money, but not sell your property. The Power of Attorney can contain conditions such as that it will take effect only if you have been found to be of unsound mind. Caution is needed when putting conditions or restrictions into a Power of Attorney.
Care for the mentally incompetent and other vulnerable persons
Ontario’s new legislation concerning people with physical or mental disabilities involves three pieces of legislation.
- The Substitute Decisions Act
- The Consent to Treatment Act
- The Advocacy Act
Though passed by the NDP government, the move to create such legislation was started under the Liberal government of David Peterson. The prime focus of the legislation is vulnerable persons – those who due to disease or disability are incapable of understanding or communicating their desires and intentions about health care and personal care issues. The legislation sets up an elaborate scheme including rights advisors and advocates with the power to intervene and speak for those who are vulnerable.
Much of the legislation is of prime importance to people who have either permanent or long-term disabilities. However, the legislation in fact touches on anyone who at any time may be in a state in which they are not capable of understanding the nature of a medical procedure which is being proposed for them.
Giving consent to treatment
When a doctor or other health practitioner wants to give treatment to a person, it is necessary for the patient to first give consent. Problems arise when the patient is unable to understand what is being proposed. Currently, medical workers look to nearby family members. It is a somewhat haphazard scheme. It is often not clear who is entitled to speak and make decisions for a patient who is not able to make decisions for him or herself. The new legislation sets out formal rules governing who can give consent when patients can no longer speak for themselves.
The law sets out the following list of persons who can speak for the patient:
- guardian of the person
- power of attorney
- spouse or partner
- brother or sister
- other relative
Persons who rank higher in the list take precedence over those listed lower. Thus, if there is both a child and a parent present, it is the child’s opinion which would prevail over that of the parent of the patient.
If there is someone higher in the list, but they are unavailable, then the person lower on the list will be given the power to decide.
A guardian of the person, the person who ranks highest in the list, is someone appointed by the Courts when the patient has no one to speak for him or her, or when the court believes it necessary that the family’s decision be overridden. This is not entirely new. The Courts have long reserved for themselves the right to intervene to ensure that the best interests of an incapable person are served. At the same time, this power of the court to intervene could conceivably be used in the future to grant permission to euthanasia which the family of the patient refuse to approve.
What is new is that someone who has been appointed under a Power of Attorney for Personal Care can now make decisions for a patient and that decision will take precedence over family members who have not been so appointed.
Power of attorney for personal care
The Substitute Decisions Act allows people in Ontario to designate another adult person as their decision-maker in matters of health and personal care should they no longer be able to make decisions for themselves. The range of decisions covered include all health-care decisions, such as whether a particular treatment or prescription should be started.
It also covers personal-care decisions such as where you should live and what home-care assistance you should receive. The Attorney for Personal Care cannot spend any of your money but can make decisions, such as moving you into a nursing home, which may cost you money. For that reason the person designated under such a power should be able to work with anyone who has been designated as your Attorney for Property.
You may designate any mentally capable adult person to be your Attorney. It can be a family member or someone from outside the family. The only person you cannot designate is someone who is paid to provide you with care.
A Power of Attorney for Property ordinarily becomes effective immediately. A Power of Attorney for Personal Care, on the other hand, only becomes effective when the patient has been found to be incapable of giving consent.
When is it advantageous to have a power of attorney for personal care?
For many people with close families whose health care involves nothing controversial, a Power of Attorney may not be necessary. The immediate family members will be consulted and their decisions will be implemented. But in any of the following circumstances it may be advantageous to have executed a Power of Attorney for Personal Care.
- You wish to have someone other than your closest family member making decisions for you. Health practitioners are required to follow the direction of the person who ranks highest in the list above. If you are widowed with children, it is the decision of your children which will be followed even though you may have more confidence in a sister. Signing a power of attorney means that it is the person you appoint whose instructions will be decisive.
- It may be that you trust the judgment of some of your children over that of others. The law simply requires that a child give approval. If there are several children in the family, there is no need to consult more than one of them. If some of your children hold your values on health-care issues, while others disagree, you may wish to give a Power of Attorney to those children with whom you see eye to eye.
- 3. Signing a power of attorney may help in preventing the public guardian and trustee being appointed the guardian of your person. Under the legislation the PGT may apply to court to be appointed your guardian if it believes that you are incapable and are suffering adverse effects as a result. In such an application, the Power of Attorney must be notified but not family members. Thus the person appointed as your Attorney for Personal Care would have the opportunity to argue against such an appointment, while a family member would not.
If your Power of Attorney is validated, it generally prevents the Public Guardian and Trustee from taking over. Validation occurs when your Attorney asks that you be formally assessed and the assessors find that you are indeed incapable
Once a Power of Attorney is validated, the Public Guardian has limited powers to intervene.
- It lessens the chances that a stranger will be given the power to speak for you. When a doctor determines that you are incapable of giving consent, he or she is required to launch a series of steps. These steps include arranging for you to speak to a rights adviser should you so agree. At the end of this process, a hospital-appointed representative could be given the power to speak for you – but only if you agree. If your state of mind at that time is a confused one, however, it is possible that you would agree to things which you would otherwise object to. This entire process is started however only if you have not designated someone under a Power of Attorney.
- It could give your family members added power should they be dealing with unscrupulous health care providers. Designating someone under a Power of Attorney prevents a doctor or other health-care provider from unilaterally claiming that a previously incompetent patient has regained his or her capacity. When a doctor determines that a patient is incapable, family members or Attorneys are required to give permission for any further medical treatments. It is possible that these individuals may then make decisions that the doctor dislikes. If the doctor is dealing only with family members, she can unilaterally claim that the patient has regained capacity and is making his or her own decisions again, and there is no effective way for family members to challenge this. If the doctor is dealing with anyone appointed under a Power of Attorney, the doctor requires approval from the Power of Attorney before he can claim that the patient is speaking for him or herself.
A doctor or health-care provider can override family wishes if he believes that
(a) the patient is suffering or may suffer serious bodily harm;
(b) family members are either nor respecting the wishes of the patient or not making decisions in the best interest of the patient.
These terms are vague and it is possible that a doctor could use them to administer treatments not approved by your family member. This right to override family members’ wishes does not apply to people who are acting under a Power of Attorney.
Be aware that each of these cases can cut both ways. Giving a Power of Attorney enhances the power of your family members in dealing with unscrupulous care providers. As long as your family members are acting in your best interests and according to your wishes, you may want them to have the upper hand in any conflict with your care-givers. On the other hand if your care-givers are acting in your best interests, giving a Power of Attorney to someone whose judgment is not sound, this makes it more difficult for your care-givers to provide you with good treatment. It is vitally important that your Attorney for Personal Care is someone you can trust to act in accordance with your desires.
The new law requires that whoever is making decisions for an incompetent patient, either a family member or an Attorney, must do so in accordance with the wishes of the patient. Those wishes can be expressed either in writing or verbally. If written, they may be included as part of the Power of Attorney or they can be a separate document. When written, these statements are called Advance Directives. In effect, they are a kind of Living Will.
The legislation is intended to ensure that your desires and wishes are respected even when you are not able to speak for yourself. Your wishes do not need to be in writing for your decision-maker to be required to follow them. Even if you expressed opinions only orally, they must be respected. Your general opinions, beliefs and attitudes are meant to be respected by your substitute decision-makers. Thus if you are an active Christian, your decision-maker would be required to make decisions in accordance with the tenets of your faith.
Generally, your desires will be more clearly known if they are expressed in writing. No special formality is required when putting your wishes into writing. However, because later desires do prevail over earlier ones, written statements should be dated. The written statement can be included as part of Power of Attorney. One problem with incorporating any written statement into a Power of Attorney document is that such a document requires certain formalities to be valid – such as two persons signing as witnesses. If you want to change the written instructions in your Power of Attorney later, they can only be done by issuing a whole new Power of Attorney.
Great caution should be used when signing any advanced directive.
Medical technology changes. The situation in hospitals and the nature of treatments constantly changes as medical knowledge and technology develop. A treatment which today is painful, or regarded as extraordinary, may be commonplace and routine in the future. A statement signed by you today may lead to results quite unforeseen by you when interpreted at a later time – perhaps several years from now.
A written statement will be reviewable not only by your family members but also by the medical personnel treating you. Thus a statement such as “that my treatment be in accord with Catholic teaching” may be interpreted very differently by you and your family, than it would by a doctor who may be treating you.
You cannot receive a treatment which you are on record as rejecting. Your doctors and family have the power to decide against giving you a treatment of which you approve. They may decide it is not to your benefit or inappropriate under the circumstances. They cannot however, give you treatment which you are on record as rejecting – even if they decide that you would now benefit from such treatment. In the hospitals of tomorrow, where health facilities are sure to be in short supply, the problem probably won’t be that patients will receive too much treatment, but that they will receive too little.
How to obtain a power of attorney
The Office of the Public Guardian and Trustee provides a kit for people interested in signing a Power of Attorney. The kit includes a blank Power of Attorney form. You can fill out the form by hand and have it signed according to the instructions included for a fully effective document. Two separate kits are available, one for The Power of Attorney for Property and the other for a Power of Attorney for Personal Care. Each kit contains instructions and some guidance on filling out the various sections.
You can obtain a kit free of charge by writing or phoning: