Appointing a Substitute Decision Maker
Updated: Jul 2, 2019
Substitute decision making is when one person makes decisions on behalf of another when the other is not mentally capable. Everyone in Ontario has a substitute decision maker (SDM) even if they have never prepared a Power of Attorney for Personal Care appointing someone to act in that role. But wouldn't you rather appoint someone of your own choosing as your SDM?
I always advise people to choose a SDM for themselves. You might never need one, but if you do, you have that peace of mind.
Last week I blogged about Advance Care Planning. Consider this week's blog a sequel. I am always talking to seniors and their caregivers, and understand when they say it's difficult to appoint an SDM. Especially when they have more than one child, or they have no children and find it difficult to choose one of their close friends or family. If you have three children who don't get along, don't make all three of them your SDMs. You wouldn't want them to quarrel while you were in a life-or-death situation, would you? Choose one person to avoid disputes.
My advice is to pick someone you trust. Someone who can make difficult decisions under pressure. Someone who won't let you down. If you are going to choose one of your children, have a family meeting and explain to the others why you have picked that one person. A frank and open conversation should mitigate any misunderstandings. If you fear a confrontation or quarrel, try to be as calm as possible and explain the logic behind your decision. I think it would be better to have a heated discussion now, when you are well, rather than during an emergency situation.
A question I get asked very often is: what are the requirements for a person to be eligible to be appointed as an SDM? The Healthcare Consent Act has listed the following requirements: They must
(a) be able to understand the treatment;
(b) be at least 16 years old, unless he or she is the incapable person’s parent;
(c) not be prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;
(d) be available; and
(e) be willing to assume the responsibility of giving or refusing consent
A person cannot name as his or her attorney for personal care
(a) anyone that provides health care to the grantor for compensation (compensation includes OHIP) or
(b) anyone that provides residential, social, training or support services to the grantor for compensation - unless the person is the grantor’s spouse, partner or relative.
This would exclude a PSW or nurse or other health provider providing care to the person from acting as his or her attorney unless they were related to the person. This also excludes retirement home and long term care staff and operators from being named as attorney of residents or tenants in those homes.
Another common question is: what is the difference between a SDM and a person holding the Power of Attorney for Personal Care? A substitute decision-maker is the person(s) who is entitled by law to make health decisions on behalf of an incapable person. It is the general term that applies to all types of SDMs. The Attorney for Personal Care is a type of substitute decision-maker. If one or more persons have been appointed as an Attorney for Personal Care by the patient when capable, they will ‘outrank’ non-appointed family members, whether that attorney is a family member or a friend. Someone may also choose to appoint a non-family member as an attorney in a Power of Attorney for Personal Care. In this case, that person and not family members will act as the SDM.
It is best to choose someone who understands you well. That person should be aware of your values and beliefs. They should be able to determine what you would have done in a particular situation, and act in your best interest. Choose someone you trust. Your SDM needs to be willing and able to make potentially difficult treatment decisions for you. Discuss your desires, values, fears, and preferences about your health care in various situations. The more your SDM knows about you and your values, the more likely he or she will be able to make the kinds of decisions that you would make if you were able.
Once you have chosen your SDM, talk to them about your values and preferences regarding your healthcare. This could help guide them if they have to make decisions for you. Let them know what medical treatment and care you would and wouldn’t want if you became very ill. Let your family and friends know about your decision, and who you have appointed as your SDM.
Choosing who you trust to make health care decisions for you if you are unable to make them for yourself is part of Advance Care Planning. Advance Care Planning also includes thinking about, talking about and writing down what you would like to happen if your SDM has to make decisions for you.
If you have any questions about Substitute Decision Makers or Advance Care Planning, feel free to connect with me or leave a comment.
Healthcare Consultant, in4MED
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A https://www.ontario.ca/laws/statute/96h02
Substitute Decision Makers https://www.speakupontario.ca/resource-guide/part-2-substitute-decision-makers/
Substitute Decision Makers https://www.sse.gov.on.ca/mohltc/ppao/en/Pages/InfoGuides/2016_SDMs.aspx?openMenu=smenu_InfoGuides
The author of this blog post is a Physician with over 10 years of experience working in the healthcare system as a clinician, researcher and educator. She is passionate about healthcare for older adults and strives to be a resourceful inspiration to caregivers.
*No content on this site, regardless of date, should ever be used as a substitute for direct medical advice from your doctor or other qualified healthcare professional.