Estate Planning

"Capacity" and the Health Care Consent Act

By Hull and Hull LLP

What happens when an injured person requires urgent medical care, but is not able to personally consent?  Guardianship proceedings under the Substitute Decisions Act ("SDA") grant all parties, including the allegedly incapable person, the full protections of the Rules of Civil Procedure.  This is required given the effects of an order appointing a guardian, which effectively removes many aspects of adulthood from an incapable person. 

When urgent medical treatment is required, doctors and patients' loved ones cannot wait several months for a full guardianship application.  Ontario's Health Care Consent Act ("HCCA") provides a mechanism whereby consent to treatment can be given on an incapable person's behalf by a substitute decision-maker.  The HCCA's test for incapacity (s. 4(1)) is the same as that in section 58(1) of the SDA, and the HCCA also contains the presumption of capacity (s.4(2)). 

Section 20 of the HCCA provides a prioritized list of substitute decision-makers, in the order one would expect: court-appointed guardian of the person > attorney for personal care > HCCA Board-appointed decision maker > spouse > child or parent, etc.

Have a great day,

Chris Graham

Full post as published by Toronto Estate Law Blog on September 13, 2010 (boomark / email).