Sometimes being a substitute decision-maker for another person is tricky because there isn't always a piece of a paper to prove it. Guardians have court orders, attorneys have a Power of Attorney for Personal Care, but what does a parent have? Usually nothing. Their legal authority comes from the Health Care Consent Act. There is a list in the law that tells us who makes medical decisions if a patient lacks capacity to do so for themselves. This list gets followed by health practitioners once they determine their patient lacks capacity.
Over the years we've fielded questions from parents who have adult children with development disabilities. They are legally the substitute decision-maker for treatment decisions and there is no reason for them to seek a court order appointing them as guardian of the person.
And yet, their default status does not provide peace of mind. Occasionally we have written letters that explain to health care providers that our clients are in fact the substitute decision-maker for their child based on the list above (if the child, regardless of age, is found to lack capacity to make the treatment decision in question).
This dilemma has led us to create a little app! It's free and can be accessed at the links below. You don't even have to give us your email! Just complete the questions and download a customized letter.
One app is for single parents. The other is for parents who have a co-parent who is also the substitute decision-maker. The app automatically creates a letter that explains that the parent is the substitute decision-maker (because there is no higher ranking individual based on the list of persons who may give or refuse consent in the Health Care Consent Act).
We note that a substitute decision-maker gets to consent or decline consent, but the treatment must be proposed by the health care provider. Additionally, if a health care provider believes the patient is capable then it is the patient who gets to decide whether to accept the proposed treatment. Having a development disability does not automatically mean that a patient lacks capacity to decide for themselves.
We also note that parents who are separated or divorced may have other arrangements in place that indicate who makes health care decisions for the child. In such cases, it is best to seek legal advice before using the app.
Try it now! Just click the blue rectangle below.
Using this app does not mean you are retaining Lisa Feldstein Law Office Professional Corporation.
And if you do need help with guardianship, we would be happy to assist! You can email us at admin@lisafeldstein.ca. Text or call us at 416-937-8768. We help clients become guardians of property and/or personal care, as needed.
We also have an online DIY course that is great for parents who want to become guardians of property at a fraction of the cost. This is a particularly good option for parents who are already substitute decision-makers by default. More details in the free lessons of the course.
through a difficult time?