THE INCAPABLE, UNWILLING OR UNAVAILABLE ATTORNEY
While both SDA and HCCA contain schemes for a person found incapable of making their own decisions to challenge the findings of incapacity that trigger the requirement for substitute consent, neither contains a scheme of recourse for an Attorney found incapable by a health practitioner to challenge that finding. However, remedies can be imputed. Under the SDA, the “spurned” and allegedly incapable Attorney remains free to apply to be appointed guardian of the person.
HCCA s. 33 authorizes anyone to apply to be appointed “representative” to make treatment and other decisions for a person found incapable of making that decision, if the incapable person does not have a guardian of the person or an Attorney for personal care—which is the case if the Attorneys named in a POA are unwilling or unavailable to make the decision, or incapable of making it. The section has been used in a few cases by substitute decision-makers found incapable by the patient/grantor’s health practitioner, but never successfully. For example, in L.M. (Re), 2005 CanLII 48162 (ON C.C.B.), the patient’s attending physician initially applied to the Board to challenge the refusal of the patient’s husband and son to consent to Mrs M.’s admission to a care facility. However, he discontinued that application when he concluded that neither was capable of making the admission decision on behalf of Mrs M. Both then applied to the Board to be appointed representative. The Board concluded that neither was capable and therefore declined to grant the application.
If the POA appoints more than one Attorney for personal care, the SDA stipulates that they must act jointly unless the POA otherwise specifies. If one of the Attorneys is incapable, unavailable or unwilling to make a decision, presumably he or she ceases to be an Attorney for the purposes of that decision. The remaining Attorneys must still act in concert. Nothing precludes appointing alternate Attorneys, but remember that health care decisions do not always wait for a gathering of relatives before they have to be made.
If no Attorneys are capable, willing and available at the time to give consent to treatment or care decisions, the result is the same as if there was no POA: substitute consent is given by the next capable, available and willing substitute decision-maker in the hierarchy set out in s. 20(1) HCCA:
1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
4. The incapable person’s spouse or partner
5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
6. A parent of the incapable person who has only a right of access.
7. A brother or sister of the incapable person.
8. Any other relative of the incapable person.
“Spouse, ” “Partner” and “relative” are defined terms [subsections 20(7) to (10)].
If a person has no guardian, attorney or relatives capable, willing and available, Public Guardian and Trustee is the substitute decision-maker of last resort. In practice, calls to the PG&T treatment division for substitute consent are first met with an inquiry as to whether or not there is a friend, neighbour or acquaintance familiar with the incapable patient who is willing to give consent. If so, PG&T encourages the health practitioners to have that person apply to the Consent and Capacity Board to be appointed representative.
Note also that, when substitute decision-makers disagree among themselves as to whether or not to consent to a treatment or to admission to a care facility, majority does not rule. The treatment team may only accept unanimous consent, absent which the decision defaults to PG&T [HCCA ss 20(5)]. When that happens, if there is no POA, family members sometimes apply to The Consent and Capacity Board to be appointed representative to give or refuse consent—see paragraph 20(1).3, above and s. 33 HCCA.
Quaere, whether the same process can be used if the Attorneys for personal care disagree among themselves. Note that an Attorney ranks above a Board appointed Representative in the hierarchy, so the Board is unlikely to appoint a Representative if there is a valid POA. One way around the problem, if the parties wish the intervention of The Consent and Capacity Board in the decision-making process, would be to have all named Attorneys resign in accordance with SDA ss. 52 or 53: There is no longer a POA.