The rise in the senior population in Canada has raised questions regarding how our aging population is making legal decisions, specifically in matters where capacity and consent are of importance. The discussion around capacity and consent affects the lives of seniors, their families, and caregivers. This article aims to shed light on the complexities surrounding capacity and consent issues and provide guidance for seniors, caregivers, and legal practitioners in Ontario. By exploring the legal framework, assessing challenges, and offering practical advice, we hope to empower those involved in the decision-making process with the knowledge and tools needed to make informed and respectful choices for the aging population.
Understanding Capacity and Consent
As per the Substitute Decisions Act (“SDA”) and the Health Care Consent Act (“HCCA”), to have capacity means that you are “mentally capable.” More specifically, capacity is the ability to mentally comprehend and make certain decisions regarding one’s life. This can be viewed in both a legal and/or medical lens, such as when granting or evoking a power of attorney (legal) or consenting to a specific health care decision (medical). In Ontario, capacity is task-specific, meaning a person may be deemed capable of making some decisions but not others. For example, an individual may not have the capacity to understand complex financial matters, but the individual may be capable of managing simple day-to-day decisions, like what to eat for breakfast or what clothes to wear. Another example comes from the Supreme Court of Canada’s decision in Starson v. Swayze, which states that having a mental disorder, such as depression or a personality disorder, does not mean a person is incapable.
Consent, on the other hand, is the agreement to a specific action or decision. For consent to be valid, it must be informed, voluntary, and given by a person with the capacity to consent.
Legal Framework in Ontario
Ontario's legal framework for capacity and consent is primarily governed by the SDA and the HCCA.
The SDA provides the legal basis for appointing a substitute decision-maker(s) for property and personal care. It outlines the criteria for presumption of capacity, the process for appointing a legal guardian, and the powers and duties of guardians and attorneys.
The HCCA sets out the rules for obtaining consent for treatment, admission to care facilities, and personal assistance services. It establishes a hierarchy of substitute decision-makers for individuals who are incapable of consenting to treatment. The HCCA also provides guidelines for assessing capacity to consent to treatment and outlines the rights of individuals to refuse treatment or withdraw consent.
Assessing Capacity
Assessing capacity is a critical step in the legal decision-making process for seniors. In Ontario, capacity assessments for property and personal care involve the assessor meeting with the individual and determining their capacity, whether it would be their capacity to execute a power of attorney for property, personal care, to make a will, or for a guardian to be appointed on their behalf. These assessments are usually conducted by designated capacity assessors who are registered with the Capacity Assessment Office of Ontario.
A capacity assessor may be required if, for example, an individual’s mental capacity is in question, and they do not have a power of attorney in place to make personal and financial decisions on their behalf and a guardian is needed to be appointed by the court on their behalf. The SDA contains specific provisions outlining the circumstances under which the Office of the Public Guardian and Trustee ("PGT") can become a guardian for property through statutory guardianship (s.16), or when looking to make the appointment of a power of attorney effective (s.9(3)).
Although the inability to make and understand legal decisions can negatively impact one’s capacity, this does not mean they cannot be represented by a lawyer. As per s.3(1) of the SDA, the courts may direct the PGT to arrange for appropriate legal counsel for the individual and they are deemed to have capacity to retain and instruct counsel when capacity is in issue. In addition, incapable individuals are to be given notice of any assessment or application related to their guardianship, and the opportunity to object to any proceedings related to their capacity. Moreover, capacity assessments must be voluntary, unless court ordered.
Per section 22(3) of the SDA, the court must not appoint a guardian if they are satisfied that the need for decision-making will be met by an alternative course of action that doesn’t require court intervention and is less restrictive on the individual’s rights to make their own decisions.
Informed Consent
As per s.11(1) of the HCCA, there are four elements required for consent to treatment:
- The consent must relate to the treatment.
- The consent must be informed.
- The consent must be given voluntarily.
- The consent must not be obtained through misrepresentation or fraud.
Informed consent, whether express or implied, is a central aspect to the HCCA. This means that consent must be given by a person who has received all the necessary information to make a decision about the treatment, including information about the nature of the treatment, expected benefits, risks and side effects, alternative courses of action, and the likely consequences of not having the treatment (s.11(3)). The individual also has the right to give or refuse consent.
Overall, the HCCA protects individuals’ rights regarding consent and capacity in a few ways:
- Age is not a factor: The HCCA does not assume incapacity based on someone’s age. Everyone is presumed to have the capacity to make their own decisions unless there is reason to believe otherwise.
- Evaluating capacity: Section 4(1) of the HCCA states that a person is capable with respect to treatment, admission to or confining in a care facility and personal assistance services if the person can understand the information relevant to making a decision about the treatment, admission to or confining in a care facility and personal assistance services and is able to appreciate the reasonably foreseeable consequences of a decision.
- Substitute decision-makers (s.20(1)): The HCCA sets out a hierarchy of individuals who may act as substitute decision-makers, including legal guardians, attorneys for personal care, spouses or partners, children or parents, siblings, and other relatives. The decision-maker must be capable, at least 16 years of age, not prohibited by court order or separation agreement, in line with the incapable person’s wishes, if available, and willing to assume the responsibility of giving or refusing consent.
- Emergencies (s.25 – s.27): In emergency situations where the senior is incapable of giving consent and no substitute decision-maker is available, treatment may proceed without consent to prevent serious bodily harm.
- Rights advice: Seniors have the right to be informed of their ability to challenge findings of incapacity or decisions made by substitute decision-makers through the Consent and Capacity Board. These rights can be found under sections 10, 25, 32, and 33 of the HCCA.
Power of Attorney for Property and Personal Care
A substitute decision-maker may be appointed through a Power of Attorney for Property and Power of Attorney for Personal Care to be their ultimate decision-maker, once deemed incapable.
- Power of Attorney for Property: An individual may arrange for a Power of Attorney for Property, a legal document allowing them to appoint one or more persons to handle their financial affairs as their agent or upon their incapacity. It may be a continuing power of attorney, which enables the chosen attorney(s) to continue managing your affairs on your behalf even after you become mentally incapable. It is important to note that this must be specifically called a “Continuing Power of Attorney for Property” and must expressly state that the chosen attorney(s) can continue to act after incapacity. This document, signed while the individual is capable, ensures that their financial matters will be managed according to their wishes by someone they trust (s.7 of the SDA).
- Power of Attorney for Personal Care: This document allows an individual to designate someone to make decisions regarding their healthcare/treatment, housing, nutrition, clothing, hygiene, and safety, should they become unable to do so themselves (s.46 of the SDA). The chosen individual is expected to make decisions based on known wishes, values, and beliefs while the person was capable (s.48 of the SDA).
In cases where there is no attorney for property or personal care appointed, or if the individual(s) named are unable to act, the court has the authority to appoint a guardian for property or personal care to take on the responsibility (detailed below).
Guardianship
If there is no Power of Attorney and a senior is found mentally incapable of making certain decisions, meaning there is a finding of incapacity, a court authorized substitute decision maker will need to make choices on their behalf.
- Guardians of property (Part I of the SDA): This type of guardianship gives the guardian the authority to manage the financial affairs of the incapable senior. The guardian is responsible for tasks, such as paying bills, managing investments, and ensuring that the person’s financial obligations are met. They will be required to prepare a Management Plan, which explains how the guardian will manage the person’s property. The Management Plan is a crucial step in drafting a guardianship application and must be followed, if approved.
- Guardians of the person (Part II of the SDA): This type of guardianship grants the guardian authority over decisions regarding the senior’s health care, nutrition, shelter, clothing, hygiene, and safety. A Guardianship Plan is required to be submitted to the court and explains the current and proposed care plan for the incapable person, which must be followed, if approved.
In situations where there is no attorney for property and/or personal care and appointing a guardian is not possible, the PGT may step in as a statutory guardian for personal care. The PGT is a government body that ensures the senior's needs are met and their rights are protected but is used only as a last resort.
It is important to note that should a guardian be imposed, this individual must explain to the incapable individual their role as their legal guardian, their right to be informed of the court application and to oppose it (rights advice), must encourage independence and participation in their care, choose the least restrictive course of action when it comes to decision-making, and consult with the senior’s family members and friends where appropriate. The proposed guardian must also ensure to personally serve the guardianship application on the incapable senior, no matter the degree on incapacity.
Another important note is that in Ontario, being appointed as guardian through the court system is not always required for some areas of personal care. When it comes to making certain healthcare decisions or deciding about admission to a long-term care home, the HCCA allows for certain individuals to make these decisions without a court application. This simplifies the process and allows for more immediate decision-making by those closest to the senior in need.
The Role and Duty of Lawyers
Lawyers play a crucial role in assisting seniors and their families with capacity and consent issues.
All lawyers have a duty to act on instructions from a client who can make decisions. When a lawyer suspects issues of capacity, they must be vigilant and identify any red flags to confirm that the client can carry out the necessary legal tasks and provide clear instructions. It's essential to document every step taken to address capacity concerns because this documentation might be needed as evidence if the client's capacity is challenged down the road.
Lawyers should refer to the Law Society of Ontario’s Rules of Professional Conduct for guidance when dealing with capacity issues with clients (Rule 3.2-9 Clients with Diminished Capacity).
It is important to remember that it is a lawyer's ethical duty is to protect their client's interests and ensure they are not disadvantaged by a lack of capacity to provide instructions. A respect for all senior’s autonomy is key.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.