Consent, Capacity & Substitute Decision-Making
If you're trying to understand this, you're not alone.
Consent, capacity, and substitute decision-making law can be genuinely confusing for family caregivers — especially in the middle of a health crisis. We translate it into plain English, so you understand what's happening to your loved one and what role you can or should play.
Contact UsWho This Affects
When these issues tend to come up
Consent and capacity issues arise when decisions are made by or for someone with a mental health issue or cognitive impairment — and separately, whenever decisions involve children and youth. Our clients are parents, children, siblings, and friends who are concerned about a loved one and unsure of their rights and obligations.
"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. Our clients can't properly do their jobs — as caregivers, advocates, or substitute decision-makers — without first understanding the applicable law."
Questions We Hear Often
Real questions from real clients
Who is the substitute decision-maker?+
Ontario law sets out a hierarchy of who qualifies, depending on the type of decision involved — it may be a spouse, a parent, a child, or another relative, or it may come from a Power of Attorney.
How do I become the substitute decision-maker?+
It depends on the situation. You may already qualify under the legal hierarchy, an existing Power of Attorney may name you, or in some cases you may need to apply to become a guardian.
Do I have to consent to a proposed treatment for my child?+
Generally, parents make treatment decisions for a child — but depending on their age and the nature of the decision, a capable child or youth may sometimes be entitled to make certain decisions themselves.
Can my child be taken away from me if I don't agree with her doctor?+
A disagreement with a doctor raises different legal questions than a typical consent and capacity matter. It's worth discussing your specific situation with us directly.
What are my options if my siblings and I disagree about mom's care?+
We usually start by trying to help the family reach agreement without court. Depending on the disagreement, other options may include a Consent and Capacity Board hearing or a court application.
Is this Power of Attorney valid?+
Validity depends on whether the document met the legal requirements at the time it was signed. We can review a Power of Attorney and advise you on whether it's valid and what it authorizes.
What documents must I provide to the hospital to prove my authority?+
This depends on the source of your authority — a Power of Attorney document, your relationship to the patient, or a court order. We can advise on what a hospital may reasonably require.
What is expected of me as a substitute decision-maker?+
Substitute decision-makers are legally required to follow specific principles — generally, honouring the person's prior known wishes, or otherwise acting in their best interests.
Can a hospital administer treatment without consent?+
Generally, no — except in genuine emergencies or other specific circumstances set out in law. Where a patient is incapable, consent is typically required from a substitute decision-maker instead.
What can I do if the doctor and I disagree about a decision?+
Options can include seeking a second opinion, negotiating directly with the care team, or in some cases bringing the matter to the Consent and Capacity Board.
Who must consent to admission to a care facility?+
It depends on whether the person is capable of making that decision. Where they're not, a substitute decision-maker generally consents on their behalf, following specific legal requirements for care facility admission.
What Can We Do For You?
From overwhelmed to informed
Clients typically enter our office feeling overwhelmed and confused, and leave feeling informed and empowered. That's the goal — to explain the law in plain English, so you understand what's happening to your loved one and what role you can or should play to achieve the outcome you want.
We provide legal advice and opinions on all matters relating to consent and capacity issues. We advocate on your behalf — or help you represent yourself — at the Consent and Capacity Board, the tribunal dedicated to hearing these matters. Depending on your situation, we can also help you become your loved one's substitute decision-maker or guardian.
Not sure what your role is, or what to do next?
Contact UsLisa Feldstein Law Office Professional Corporation
Richmond Hill, Ontario L4B 3P4
Canada
Tel: 416-937-8768
