Consent,  Capacity and Substitute Decision-making

Consent and capacity issues can arise when decisions are made by or for people with mental health issues and/or cognitive impairments such as:

• mental illness
• dementia
• acquired brain injuries
• developmental or intellectual disabilities

Consent and capacity laws can also apply to decisions involving children and youth. Our clients are parents, children, siblings and friends who are concerned about their loved ones and unsure of their rights and obligations.

We are regularly asked questions such as:

• who is the substitute decision-maker?
• how do I become the substitute decision-maker?
• do I have to consent to a proposed treatment for my child?
• can my child be taken away from me if I do not agree with her doctor?
• what are my options if my siblings and I disagree about mom’s care?
• is this power of attorney valid?
• what documents must I provide to the hospital to prove my authority?
• what is expected of me as a substitute decision-maker?
• can a hospital administer treatment without consent?
• what can I do if the doctor and I disagree about a decision?
• who must consent to admission to a care facility?

Consent and capacity is a complicated area of the law. There are a multitude of laws that dictate legal obligations on health care providers and substitute decision-makers as it pertains to consent and capacity. Our clients cannot properly do their jobs – as caregivers, advocates or substitute decision-makers – without first understanding the applicable law.

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