SDM or Substitute Decision-Maker

A substitute decision-maker (SDM for short) in Ontario is a person who is legally authorized to make decisions for a person who is mentally incapable of making the decision for themselves. Because decisions by an SDM limit individual autonomy, there are various laws, rules and procedures that apply to SDMs and their decisions. There are many ways that an SDM can be empowered. In this article, we will do an in-depth review of some of the most common types of SDMs.

SDM and Legal Capacity

It is first important to understand the concept of legal capacity. Capacity and incapacity are legal jargon referring to a status of individual rights. Individuals who are legally “capable” have certain rights that “incapable” people do not. The content of the right or bundle of rights depends on the laws applicable to the type of decision. 

Substitute decision-making usually refers to decisions made for a person who is not mentally capable of making the decision for themselves. 

When we are discussing legal capacity in this article and generally, it should not be confused with the dictionary definition of the word capacity. Because capacity determinations impact rights, they involve a legal test and not simply a medical or scientific determination. 

Legal capacity is limited in many cases. For example, non-citizens, prisoners, and children among others are subject to significant limits on legal capacity. For basic decisions about oneself, the legal capacity of adults is often only limited to those lacking mental capacity.

The legal tests for whether a person has mental capacity vary based on the area of decision making. For example, the following areas of decision-making all have different tests for incapacity:

• Capacity to make or revoke a last will and testament
• Capacity to create a continuing power of attorney for property
• Capacity to create a power of attorney for personal care
• Capacity to make a healthcare treatment decision
• Capacity to make a shelter decision
• Capacity to consent to an admission to a long-term care facility
• Capacity to enter into a contract 
• Capacity to consent to the disclosure of personal health information
• Capacity to get married

There is no-longer any such thing legally as a person who is globally incapable. However, there may be circumstances where a person is not capable in all areas of decision-making, such as a person who is continually unconscious and not able to communicate. The legal tests for the many capacity tests generally involve an analysis of the person’s ability to understand related information and ability to apply the information to their own circumstances. 

There are presumptions in the laws of Ontario that everyone over 16 years of age is capable of respecting personal care and everyone over 18 is capable of managing property. These presumptions can be overcome so these are not rigid rules.

Did you know? 

These areas of law are primarily considered within the provincial jurisdiction of Property and Civil Rights set out in the Constitution of Canada so the laws may be different in other jurisdictions including other provinces.

What is not mental incapacity

It may be helpful to compare some things that are not incapacity per se. The presence or absence of the following may be valuable information for determining capacity, but they do not in themselves alter an individual’s rights:

• Incapacity in other areas of decision-making: the presumptions of capacity often mean that even if a person is incapable of respecting decisions in one area of decision-making, he or she is presumed to be capable in another.
• A medical diagnosis or symptoms: a person can have a diagnosis such as dementia or a symptom such as memory loss, but still be mentally capable in some or all areas of legal decision-making.
• A decision that is not in a person’s best interests: A capable person may look at the pros and cons of any possible decision and come to a different conclusion than medical or financial professionals and is entitled to make a decision that others might consider bad or foolish. 
• Poor functioning due to something other than mental incapacity: not appearing to have capacity may be due to a lack of information, education or accommodation of language or disability. These things must be addressed to properly assess mental capacity.

Did you know? 

The tendency to conflate mental illness with lack of capacity has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change.

SDM and Substitute Decision-Making

Substitute decisions are decisions that are legally authorized to be made for and that are binding on an incapable person. The incapable person has limited rights to refuse or reject the decisions of a legally authorized SDM. This can be a remarkable challenge for SDMs of people with strong views and preferences that are not compatible with the decisions of the SDM.

There are statutes in Ontario that legally authorize substitute decisions for people who are not mentally capable of making personal care and property decisions. Two primary statutes governing SDMs are the Health Care Consent Act (“HCCA”) and the Substitute Decisions Act. These two Acts work together to create a regime that covers most areas of decision making for mentally incapable people. Among other things, the HCCA and SDA authorize:

1. SDMs under the HCCA for health care decisions
2. Powers of Attorney, which capable individuals can grant for themselves.
   1. Powers of attorney or personal care for HCCA and non-HCCA personal care decisions
   2. Continuing powers of attorney for property
3. Statutory guardians of property that are created by the operation of statutes.
4. Court-appointed guardians of property and personal care who are appointed by the Ontario Superior Court.

Did you know?

The HCCA and SDA refer to an attorney for personal care or property. “Attorney” here does not mean a lawyer. Also, while an attorney is one type of SDM, there are also other types so “attorney” and “SDM” are not identical.

Personal Care SDM Overview

Substitute decision making for personal care issues depend on the person’s circumstances. Generally, capacity depends on time and what information is relevant to the decision or area of decision-making. For example, a person can be incapable at one time and capable at another time. A person can also be incapable with respect to some treatments and capable with respect to others. 

Some personal care substitute decisions are one-off if the person’s capacity fluctuates. Other types of personal care SDMs have a more ongoing role such as with guardianship appointments, which are in place until the guardianship is terminated.

Health care decisions are for treatments proposed by regulated health professionals, admission to long-term care facilities, and personal assistance services in long-term care facilities and retirement homes. The health practitioner or evaluator decides if the person is capable themselves. If not, the SDM is automatically selected from a ranking in the HCCA, which includes guardians and attorneys for personal care, family members and the Public Guardian and Trustee. 

Non-health care personal care decisions fall under the jurisdiction of the SDA. These might include decisions about nutrition, shelter, clothing, hygiene or safety that the HCCA does not apply to. There is no ranking of automatic SDMs for these types of decisions, which can be made by attorneys for personal care or guardians of personal care, except insofar as they are referred to in the HCCA.

Attorneys appointed in a Power of Attorney for Personal Care

Attorneys for personal care are appointed in documents called powers of attorney for personal care. Powers of Attorney can only be granted by a capable person for themselves. An important feature of the SDA not commonly known is that a person can be incapable respecting making personal care decisions yet still capable of granting or revoking a power of attorney for personal care. The attorney can only become an SDM when the person is incapable of making the decision in question. Accordingly, the attorney may only be SDM for some decisions but not all. When a power of attorney for personal care is effective depends decision in question and the language of the document.

Court Appointed Guardians of Personal Care

Guardians of personal care are appointed by a court order or judgment. That court order will set out what areas of personal care decisions (eg. shelter and safety, but not nutrition) that guardian can make. The order confirms that the guardian is SDM for those specific areas of personal care identified in the order. Guardianship orders also approve of and include a guardianship plan outlining the person’s personal care circumstances and the guardian must act in accordance with the plan.

Guardianship of personal care can only be terminated by a court.

Did you know? 

There is potential overlap between the authority of the SDA and the Divorce Act as they apply to adult-disabled children of a marriage. Under the Divorce Act section 16.1 a parenting order can provide for “any other matter that the court considers appropriate” for a child of the marriage who is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.

Rules for Personal Care Substitute Decisions

SDMs for personal care are required to follow rules when they are making decisions on behalf of incapable persons. 

For health care decisions, the decision must usually be in accordance with the incapable person’s prior capable wishes that are applicable to the circumstances. If there are no applicable prior capable wishes, the decision must be made in the incapable person’s “best interests”, which must include the following considerations applicable for treatment decisions, for example:

1. 1. the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;
   2.  any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and
   3.  the following factors:
      1. Whether the treatment is likely to,
         1. improve the incapable person’s condition or well-being,
         2. prevent the incapable person’s condition or well-being from deteriorating, or
         3. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.
      2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.
      3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.
      4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

Attorneys and guardians acting as SDM for non-health care decisions must also make decisions in accordance with prior capable wishes, or in the person’s best interests (as defined by the SDA) if there is no applicable prior capable wish. 

Additional Rules for both Attorneys and Guardians of Personal Care

There are additional duties and obligations that apply to attorneys and guardians of personal care. A non-exhaustive list of these duties set out in section 66 the SDA are summarized as follows:

(1) Exercise the powers and duties diligently and in good faith

(2) Explain the duties to the incapable person.

…

(4.1) Keep records of decisions made

(5) Encourage the incapable person to participate, to the best of his or her abilities, in the decisions

(6) Seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person

(7) Consult from time to time with supportive family members and friends who are in regular contact and others involved in the person’s personal care

(8) Seek to foster the person’s independence.

(9) Choose the least restrictive and intrusive course of action that is available and is appropriate in the particular case. 

(10) Not use confinement or monitoring devices or restrain the person physically or by means of drugs, and shall not give consent on the person’s behalf to the use of confinement, monitoring devices or means of restraint, unless the practice is essential to prevent serious bodily harm to the person or to others, or allows the person greater freedom or enjoyment.

…

(12) Not use electric shock as aversive conditioning and shall not give consent on the person’s behalf to the use of electric shock as aversive conditioning unless the consent is given to a treatment in accordance with the HCCA. 

Property SDM Overview 

There are some important differences between property and personal care SDMs. There is no automatic ranking of family members as SDMs for property. Substitute decision-making for an incapable person’s property requires a Continuing Power of Attorney for Property or a Guardianship of Property. Also, property is also not finely sliced down into realms of decision making like personal care decisions. The Ontario law treats an adult as either capable respecting management of all of his or her own property or none of it. 

Historically, guardians in Ontario used to be called a committee of the estate (see the former Mental Incompetency Act, repealed April 3, 1995). While committeeships still exist, most SDMs of property are either attorneys for property, statutory guardians or court-ordered guardians all pursuant to the SDA.

Did you know? 

There are various other legal mechanisms that may be available to facilitate property management of an incapable person such as Henson Trusts and Trusteeship of government benefits. Please seek legal advice if you are interested in exploring what options might be best suited for your needs.

Attorneys Appointed in a Power of Attorney for Property

Individuals have also historically been able to appoint a person to act as their agent with a Power of Attorney. The statute that most recently permitted these general powers of attorney is still in effect. The attorney’s primary responsibility when using a general power of attorney for property is to carry out the instructions of the donor as principal. Historically, when the grantor of a power of attorney became incapable, the document was no longer valid (as the principal had lost capacity to direct the attorney). 

The SDA permits the use of powers of attorney after the grantor becomes incapable of managing property. In Ontario, these types of Powers of Attorney are called Continuing Powers of Attorney for Property. They are continuing because they continue to have effect while the grantor is incapable. A Continuing power of attorney may authorize the attorney to do anything that the grantor can do except make a will.

The same document can act as both a general power of attorney and a continuing power of attorney. The nature of the attorney’s role will depend on the capacity of the grantor. 

Where there is no valid continuing power of attorney, either statutory guardianship or court-ordered guardianship may be necessary to be an SDM of an incapable person’s property.

Statutory Guardianships of Property

The Public Guardian and Trustee (PGT) can sometimes become SDM of property for incapable individuals by being appointed a statutory guardian of property. Statutory guardians are created upon receipt of two types of certificates of incapacity: 

1. For patients in psychiatric facilities, a statutory guardianship is created when a physician assesses the property management capacity and sends a certificate of incapacity to the PGT. 
2. For anyone else, statutory guardianships result if the possibly incapable person undergoes a capacity assessment by a designated capacity assessor and is found incapable. The capacity assessor is required to ensure that a copy of the certificate of incapacity is given to the person and to the PGT.

Neither of these types of assessments are supposed to be conducted if the person has a continuing power of attorney. 

The incapable person’s spouse or partner or other relative among others may apply to replace the PGT. If the application to replace is accepted, the applicant becomes the statutory guardian of property. 

Statutory guardianships of property can be terminated in various ways depending on how they were created.

There is no comparable statutory guardianship of personal care.

Court-Ordered Guardians of Property

On application, a court may appoint one or more persons as guardian of property for an incapable adult. Courts may also appoint banks or trust companies as guardian of property. Courts may also require property guardians to post security, limit their appointment period or impose any other restriction that the court considers appropriate. Often, guardians are required to apply to court to pass accounts at regular intervals so that their records and transactions will be reviewed. 

Court-ordered guardianships of property are terminated by a court order.

Did you know? 

For children, regardless of the child’s mental capacity, a property guardian can only be appointed by a court pursuant to a guardianship under the Children’s Law Reform Act.

Rules for a Property SDM

Property SDMs are subject to a complex set of duties and obligations. Like attorneys, property guardians can generally do anything that the incapable person can do with their property except make a will.

Some of the highlights of the many of the duties and powers of guardians and attorneys for property are summarized as follows:

1. As a fiduciary, put incapable person’s interests ahead of their own
   • (1.1) Consider the personal comfort and well-being of the incapable person in decision-making
   • (1.2) Manage property in a manner consistent with the person’s personal care decisions so long as the decision’s adverse consequences in respect of the person’s property significantly outweigh the decision’s benefits in respect of the person’s personal care
2. Explain to the incapable person what the powers and duties of the guardian or attorney are
3. Encourage the person’s participation in decision-making
4. Foster regular personal contact between the incapable person and supportive family members and friends of the incapable person
5. Consult with supportive family members and friends and persons providing personal care to the incapable person
6. Keep accounts of records for every transaction in accordance with the SDA regulations. 
7. Guardians must act in accordance with an approved management plan

The SDA sets out a hierarchy of required expenditures to be made by an SDM from an incapable person’s property as follows:

1.  The expenditures that are reasonably necessary for the person’s support, education and care.
2. The expenditures that are reasonably necessary for the support, education and care of the person’s dependants.
3. The expenditures that are necessary to satisfy the person’s other legal obligations.

Subject to a court ordering otherwise, there are limited options for also providing gifts or loans to the incapable person’s friends, family or charities as well.

The attorney or guardian of property may take compensation subject to limits in the appointment document or order. Compensation is often based on a standard fee scale but is always subject to review and potential reduction by the court.

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