Interview: The difference Between an Attorney for Personal Care and a Substitute Decision-Maker
What is the difference between an Attorney for Personal Care (APC) and a Substitute Decision-Maker (SDM): Lawyer Clancy Catelin explains
This blog was first posted on April 26, 2024, by Dying With Dignity Canada as part of Advance Care Planning Month.
April is Advance Care Planning (ACP) month, and we are sharing content with our supporters about the importance of completing an ACP Kit, as well as details of health care planning that we should all consider. We asked Clancy Catelin, an associate lawyer at Rosen Sunshine LLP in Toronto, to help clarify some terms that are often misunderstood. Clancy’s answers refer to Ontario law where she practices; please refer to the laws in your jurisdiction for matters regarding Attorneys for Personal Care and Substitute Decision-Makers. ACP forms for each province and territory are available on the DWDC website here.
What is the difference between an Attorney for Personal Care (APC) and a Substitute Decision-Maker (SDM)?
This is a great question because these are terms that I think are the subject of some confusion.
A Power of Attorney for Personal Care is a legal document provided for under the Substitute Decisions Act, 1992 in which one person, the “grantor,” appoints another as their “Attorney for Personal Care.” This means they have the authority to make decisions about the grantor’s personal care. Personal care decisions include decisions related to health care, nutrition, shelter, clothing, hygiene, or safety.
A Substitute Decision-Maker, on the other hand, is a person authorized by law to give or refuse consent to a medical treatment on behalf of a person incapable of making their own decision regarding that treatment.
An SDM (including an APC) only gains authority to make a decision on a person’s behalf when they lose the capacity to make that decision.
In Ontario, the Health Care Consent Act, 1996, (“HCCA”) gives us a hierarchy of SDMs, a list that tells us who can act as someone’s SDM.
The first few categories describe legal relationships:
Guardian of the person, if there is one
Attorney for personal care, if there is one
A representative appointed by the Consent and Capacity Board
Then we have the more common familial relationships:
Spouse or Partner
Child or custodial parent (or someone in the lawful position of a parent)
Access-only parent
Siblings
Any other relative
As a last resort, we have the Public Guardian and Trustee.
A health care provider who needs consent for treatment will start at the top of the SDM hierarchy and go down that list until they find an SDM who is willing and able to act in that role. A person could be an SDM and not be an APC, but an APC is very high in the SDM hierarchy, so if someone has an APC, that will be their first stop. Individuals identified in the SDM hierarchy can also refuse to take on the role if they are not comfortable with the responsibilities.
Why is it important to have an APC or SDM identified and recorded in documents?
If a person does not appoint their preferred SDM as their APC then the default SDM in the SDM hierarchy will gain authority if the person loses capacity. This may not reflect who the person would want in that role, and without legal documentation appointing someone else, the default SDM will apply.
I encourage everyone to think about who it is that they would want making health care decisions for them when they are not capable. Make sure that potential SDMs and others know your wishes. This also makes it easier for health care providers to find this person when necessary and avoid delays in your treatment.
If you do not have an APC or SDM appointed, who will be contacted if an individual is in hospital?
In Ontario, it is likely but not guaranteed that an SDM will be available from the SDM hierarchy. If a person has an APC appointed in your Power of Attorney for Personal Care, that person is high in the SDM hierarchy. The SDM hierarchy applies by default, so if a person does not have an APC appointed or the APC is unavailable, they will move on to the next category until they find someone who is available and willing to fill the role of SDM at that time. An SDM may step in and out of the role if the patient has fluctuating capacity, or if a higher ranked SDM becomes available.
If family members disagree on what care to continue or stop for an individual, how is this situation resolved?
One of the issues that arises with the SDM hierarchy is that everyone in the same category has equal authority as SDMs and would need to agree to a decision. For example, if I don’t have a spouse or partner or parents, and I have four eligible children, all four of my children are my SDMs.
This can be a challenging situation for everyone involved, but most hospitals have systems in place to organize family conferences when conflict or confusion arises to involve people in the decision-making process.
Healthcare providers may hold a family conference to try and find consensus about what my wishes would be and what decision best reflects those wishes. But if they cannot agree, they may need to go to the Consent and Capacity Board to seek appointment of one of my children as the sole SDM. I could preempt this situation by appointing an APC while I was still capable.
What do you do if you don’t have anyone in your life who could be your SDM?
An APC does not have to be a family member, it could be a friend or chosen family. But if you do not have anyone who can take on the role of your SDM, then there is usually a last resort. In Ontario for example, it is the Office of the Public Guardian and Trustee who will look out for the patient’s rights in those cases.
What do you wish people would know about this process and their rights?
I wish that people understood the value of discussing their health care wishes with the people in their lives who have been, or who may be asked to act as their SDM. The system is such that if you don’t appoint someone then the SDM hierarchy is applied, but it can mean that your SDM feels unprepared to make these decisions when the time comes. Also, understanding who is likely to assume the role of SDM should you become incapable may lead you to appoint someone else using a simple legal document like a Power of Attorney for Personal Care.
We have all sorts of different relationships, and the law is doing its best to make sure there is someone there when you need them, but the law doesn’t know what your life is like, so it’s up to you to set this up so it works for you.
