Photo by Scott Graham on Unsplash
Contents
I. An Introduction to Decision-MakingII. Decision-Making Models Across the Country: A Brief Overview
III. Decision-Making & Disabilities
IV. Case Studies
- Making Decisions About Property
- Making Decisions About Personal Care
- Making Decisions About Health Care
Appendix A - Decision-Making Models in Canadian Jurisdictions: An Overview
Appendix B - Decision-Making Models & Instruments by Province
I. An Introduction to Decision-Making
Adults living in Canada are used to making decisions about their own lives, whether it be where to live, what to eat, what to wear, or how to spend their money. Canadians understand free decision-making to be one of our basic rights. People with disabilities are no exception. Generally speaking, Canadian laws presume that people living with disability are capable of making their own decisions, just like everyone else. However, the laws governing decision-making are specific to each province and territory throughout Canada. While there are many similarities across the country, there are also some key differences.
Our laws relate to two broad areas of decision-making: property and personal care:
Property decisions involve finances – for example, how to spend or invest money, take care of an asset such as a house, or manage a Registered Disability Savings Plan (“RDSP”).
Personal care decisions involve health care, nutrition, housing, clothing, hygiene and safety – for example, consenting to a medical procedure or choosing where to live.
A person is considered to have legal capacity when they have the ability to understand information related to a decision and also the ability to appreciate the consequences of that decision. Keep in mind that legal capacity may differ depending on the decision that is being made. For example, someone may be considered capable of choosing where to live, but not so when in comes to managing their everyday finances.
What if someone is found to be incapable of making a specific decision?
When a person is unable to make a decision on their own, they may require an accommodation or support in order to exercise their legal capacity, such as technological assistance, a translator, or a support person to interpret their signs, gestures or verbal cues. A person could also appoint someone to make decisions on their behalf, or to support them in making their decisions. This depends on the province or territory where they live and the person’s ability to appoint someone. Each province or territory has its own decision-making model, such as substitute decision-making, supported decision-making, representation, and more (these models are reviewed in more detail below).
How can this toolkit help me or my family member?
Using three case studies, we will work through a series of questions that will help you determine whether you or your family member would be considered capable of making a specific decision. This toolkit should help you assess whether you or your family members are:
- Considered to be capable of making the decision independently;
- In need of supports, education and/or accommodation to exercise decision-making capacity; or
- Considered to be incapable of making a decision, even with accommodations and/or supports, in which case a substitute decision-maker (or similar representative) may be appointed.
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II. Decision-Making Models Across the Country: A Brief Overview
Depending on where you live, your experience with decision-making laws and arrangements may vary widely. In this section, we describe and define the decision-making models found throughout Canada.
Substitute Decision-Making: refers to decisions made by someone (e.g. a person’s family member or friend) on behalf of a person who lacks capacity. Depending on the province or territory, a substitute decision-maker may be named in a legal document or identified in a hierarchy of substitute decision-makers found in the relevant legislation. Some arrangements under the substitute decision-making model may include:
- Powers of Attorney
- Guardianship order
- Trusteeship order
- Committees
Supported Decision-Making: refers to supports and accommodations provided by a supporter to assist a person in exercising control over and communicating his or her decisions. Decisions made or communicated with the assistance of a supporter are considered to have been made by the supported person, not by the supporter. Depending on the province or territory, supported decision-making arrangements may be informal or may be formalized in agreements or authorizations. Some arrangements under the supported decision-making model include:
- Supported decision-making authorizations
- Appointment of an Advisor.
Co-Decision-Making: refers to decisions made jointly between a person and appointed co-decision maker(s). A co-decision-maker can ensure that a person has and understands all the information needed to make a decision, and knows the alternatives and likely results of their choices. Arrangements under the co-decision-making model include:
- Co-decision-making orders (for the person or property)
Specific Decision-Making: refers to a one-time, time-sensitive decision made by someone on behalf of a person who lacks capacity. It is usually only used for health care or personal care decisions. Specific decision-making is currently only available in Alberta.
Representation: Some provinces and territories allow a person to enter into representation agreements, which permit a “representative” to make legally enforceable decisions on a person’s behalf. Depending on the province or territory, representation agreements may only authorize a representative to make certain decisions.
To determine which decision-making model(s) are available in your province or territory, please refer to the tables in Appendix A and Appendix B.
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III. Decision-Making & Disabilities
It is sometimes easy to forget the presumption of capacity that exists in our legislation. We might instead make negative assumptions about the capacity of adults with disabilities, based on their particular medical diagnoses or the opinions and impressions of others. As family members and caregivers, we may seek to shelter our loved ones from difficult decisions and avoid the possibility of negative outcomes. How should we balance safety and protection with respect for the decision-making autonomy of our loved ones?
There is no clear answer to this dilemma. However, this section provides some key considerations when working through a decision-making process with a person with a disability. These ideas will be explored again later in the case study section.
1. Is the person considered to be capable of making the decision independently?
Recall that legal capacity is based on the ability to understand information relevant to making a decision and the ability to appreciate the consequences of the decision. The requirements for legal capacity differ depending on the province or territory where you live, and the type of decision being made.
Remember: legal capacity is decision-specific, may fluctuate over time, and is not tied to a medical diagnosis.
2. Does the person require supports, education and/or accommodation to exercise their decision-making capacity?
Even if a person seems incapable of making a decision, consider whether they may be able to exercise their decision-making capacity with support, including:
- Communication techniques to enable the person to understand information relevant to making a decision;
- Technological assistance, such as through the use of a tablet or screen reader;
- Education or training to understand fundamental concepts or information related to a decision; and/or
- Specific support persons to interpret signs, gestures or verbal cues.
3. Who assesses decision-making capacity?
A person’s capacity to make a specific decision is assessed according to the law in the province or territory where they live. There may be legal thresholds that are applicable to the type of decision being made – like whether the decision relates to personal care or property. Such thresholds may guide a professional, such as a lawyer, doctor or a capacity assessor, to determine someone’s capacity to make the decision at hand.
As mentioned earlier, the starting pointing across all Canadian jurisdictions is the presumption of capacity. Generally speaking, once we have reached the age of majority, we are considered capable of our own decision-making. This key presumption may be called into question however, by a variety of people, agencies and/or institutions (even more so if we are living with a disability). For instance, a doctor may have concerns about someone’s capacity to consent to a risky surgery; the Canada Revenue Agency may have reason to doubt that someone can manage their own taxes; or a bank may doubt someone’s ability to open a savings account. Tests for determining legal capacity in these situations vary by jurisdiction. Similarly, the professionals charged with making determinations of legal capacity are different depending on where you live.
While some assessments of capacity may only have consequences on that specific decision (i.e. who may consent to a proposed surgery), other more generalized assessments can have wide-ranging and long-lasting effects on a person’s life and autonomy.
Important note: If a person undergoes a formal capacity assessment to determine their legal capacity, keep in mind that if found incapable, that person may lose some or all of their decision-making rights. Before taking any steps that could impact your or your family member’s legal rights, it would be a good idea to speak to a lawyer in your province or territory to determine your options.
4. If the person is found to be incapable of making the decision, who is authorized to decide?
If a person is found to be incapable of making a decision, another person may be selected to make decisions on their behalf. That person is called a substitute decision-maker (“SDM”). An SDM may be named by the person themselves in legal documents, such as Powers of Attorney or personal directives, or may be appointed by the court. In some jurisdictions, automatic SDMs are built into the legislation. These default decision-makers may include family members and/or public bodies who are authorized to act as SDMs of last resort.
In some provinces or territories, a person may appoint someone to support them in their decision-making, referred to as “supported decision-making,” or appoint someone to make joint decisions with them, referred to as “co-decision-making.” In other provinces or territories, the person may appoint a “representative” who they trust to make, or help them to make, a variety of decisions.
To determine which decision-making model is available in your province or territory, please refer to the tables found in Appendix A and Appendix B below.
5. What are the roles and responsibilities of the SDMs?1
The role of the SDM varies according to the province or territory where you live. Even the criteria to be an SDM and the types of decisions that an SDM could make depend on the law in your province or territory.
There are, however, some basic principles to consider when choosing, or acting as, an SDM:
- An SDM should be someone who the person trusts.
- An SDM should be someone who knows the person well.
- An SDM should always act according to the person’s wishes and best interests.
The SDM has the authority to make life changing decisions related to finances or personal care, such as buying a house or consenting to medical procedures. The person should be able to trust the SDM to make decisions on their behalf (or make decisions with them).
The SDM should know what is important to the person and what quality of life means to them. The person should feel as though the SDM really cares about their best interests.
When a person’s wishes are known, the SDM should make decisions with the person’s wishes, values and beliefs in mind. When a person’s wishes are not known, the SDM should make decisions that are in the person’s best interests. The SDM should follow the person’s wishes and preferences, to the extent possible, even if they do not always agree with them.
[1] This section is also applicable to decision-making models that include supported decision-making, co-decision-making, representation, etc.
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IV. Case Studies
Case Study #1: Making Decisions About Property
Joe and Lisa Harris’ daughter, Jennifer, lives on her own in a nearby apartment, and works part-time at her local MP’s office. Jennifer does not speak, but communicates using verbal cues, gestures and her tablet. Joe and Lisa assist Jennifer in making daily life decisions. Jennifer is very expressive about what she does and does not like.
One day, Jennifer decides that she would like to purchase a brand-new luxury car using the money she has saved in her bank account. Joe and Lisa do not think this is a good idea – Jennifer does not need a car and she uses the money in her bank account to pay for her rent and daily expenses. Jennifer is insistent that this is what she really wants.
Do Joe and Lisa have an obligation to protect Jennifer’s financial interests or should they support Jennifer’s autonomy? What should they do?
To determine whether Jennifer may be capable of deciding whether to purchase a car, consider the following steps:
- Is the person considered to be capable of making the decision independently?
- Does the person require supports, education and/or accommodation to exercise their decision-making capacity?
- Who assesses decision-making capacity?
- If the person is found to be incapable of making the decision, who is authorized to decide?
- What are the roles and responsibilities of the SDMs?2
When it comes to using the funds in her bank account to purchase the car, Jennifer understands that she would be using the money that she has saved up from working. Jennifer, however, does not appreciate the significant cost of the car and the fact that she may not be able to pay for rent or her daily expenses if she purchases a brand-new luxury vehicle. At first blush then, Jennifer is likely not capable of making a decision about using her savings to purchase the vehicle.
While Jennifer does not speak, she is able to communicate her preferences using verbal cues, gestures and her tablet. Jennifer’s capacity is not determined by her ability to communicate through verbal speech.
Jennifer is very tech savvy, so Joe and Lisa may encourage her to enroll in an online financial management webinar, to learn how to budget her money wisely.
Jennifer finds the financial management webinar to be very challenging, but decides to go ahead and visit the car dealership with her parents. The representative of the dealership expresses concerns about Jennifer’s ability to understand and appreciate the value of the vehicle and ultimately, to sign a contract. The representative suggests that perhaps Joe and Lisa should consider purchasing the vehicle for Jennifer instead. Jennifer decides to visit a lawyer with Joe and Lisa to determine what her options are when it comes to managing her money.
In this scenario, a formal capacity assessment has not been triggered. The lawyer does not recommend a formal assessment, but counsels Jennifer that she may run into similar problems with financial institutions, retailers and government agencies in future.
Jennifer’s lawyer recommends that she appoint a substitute decision-maker to assist her in making financial decisions. Jennifer decides to name her parents as her substitute decision-makers. Joe and Lisa may assist Jennifer in making the decision to purchase a car.
Common examples of SDMs for property include a guardian or attorney for property. A guardian may be imposed upon a person lacking capacity for decision-making, either by the courts or by the relevant statutory regime. Another possibility is an attorney for property. This is someone who is chosen ahead of time by the person themselves, assuming they had the necessary level of capacity to create a POA in the first place.
When it comes to purchasing a car – typically a large expense – the appointment of an SDM for property may be the only option across Canadian jurisdictions, when the proposed purchaser is found to lack legal capacity to contract. For common, day-to-day financial decisions, some jurisdictions allow a representative to provide supports for decision-making. We encourage you to read more about your specific province or territory, by referring to Appendix B.
As her substitute decision-makers, Joe and Lisa are obligated to make decisions according to Jennifer’s prior capable wishes, and in their absence, her best interests. Even though they may not agree with Jennifer buying a car, they can help her narrow down her options: if she does want or need a car, what kind of car should she purchase? Joe and Lisa could help Jennifer to lease or purchase a more affordable vehicle that fits within her budget.
[2] This section is also applicable to decision-making models that include supported decision-making, co-decision-making, representation, etc.
Case Study #2: Making Decisions About Personal Care
Carlos lives at home with his parents and his brother. His family members help him with some of his activities of daily living, such as bathing, grooming, preparing meals and dressing himself. He is able to communicate and express himself with his family members and friends verbally and with gestures.
Carlos and his family recently heard of a Supported Independent Living (“SIL”) placement in an apartment building in their neighbourhood. Carlos is interested in living on his own with support, but his family members are unsure that he will be able to do it. Carlos asks his family members to help him apply to the SIL program. Who decides where Carlos will live?
We will work through the same steps as in Case Study #1. Consider the following:
- Is the person considered to be capable of making the decision independently?
- Does the person require supports, education and/or accommodation to exercise their decision-making capacity?
- Who assesses decision-making capacity?
- If the person is found to be incapable of making the decision, who is authorized to decide?
- What are the roles and responsibilities of SDMs?
Carlos understands that he would be living on his own in the SIL program and that he would be responsible for his own care, with support. Carlos’ family feels as though he does not appreciate what it would be like living on his own – he frequently depends on his family members for assistance, and they will not be around to help him cook or dress himself. Carlos admits that he does not truly appreciate all of the implications and consequences associated with living independently.
Carlos is able to communicate with his family members and friends, but needs time to express himself properly. Carlos and his family visit the SIL program and meet with the case manager to see first-hand what the living situation is like. The case manager reviews the components of the program with Carlos, such as the level of supports and the scheduling of staff. While his visit makes him more interested in the program, Carlos expresses that he is not sure if he fully understands and appreciates the consequences of the division of various responsibilities between himself and his supports.
After speaking to Carlos alone, the case manager expresses concerns about Carlos’ ability to make this decision on his own. The case manager notes that while Carlos is excited by the prospect of living on his own with supports, he does not seem to appreciate all of the challenges that might lie ahead. While the case manager has no authority to make any findings of capacity, she gets the impression that Carlos will require assistance in making such a big decision.
Given the case manager’s concerns, Carlos’ family seeks legal advice.
Carlos visits a lawyer and appoints his mom, dad and brother as his substitute decision-makers. Carlos wants his family to help him decide whether he should live on his own in the SIL program.
Carlos is very close to his immediate family. He trusts his parents and his brother and feels as though they know him best. While Carlos’ family is hesitant about Carlos living on his own, they recognize that Carlos wants to be independent. Carlos and his family talk things through with the coordinator of the SIL program, and together, they decide that Carlos will try living on his own on a temporary basis. If things work out, Carlos can take part in the SIL program for a longer period. Carlos’ family will help Carlos’ support workers understand his needs and methods of communication.
Case Study #3: Making Decisions About Health Care
Nadia can communicate using a few words and depends on her older sister, Sara, for all aspects of her care. One day, Nadia was feeling very sick, so Sara took her to the emergency department at their local hospital. After a doctor examined Nadia, she prescribed an intravenous (IV) treatment for dehydration. When a nurse tried to set up Nadia’s IV, Nadia got scared and yelled out “No!” The nurse immediately stopped what he was doing. Who decides whether Nadia should receive the IV treatment?
Work through the following steps:
- Is the person considered to be capable of making the decision independently?
- Does the person require supports, education and/or accommodation to exercise their decision-making capacity?
- Who assesses decision-making capacity?
- If the person is found to be incapable of making the decision, who is authorized to decide?
- What are the roles and responsibilities of SDMs?
Nadia understands that she is sick and that she is in need of treatment. Although she does understand the general characteristics of her condition, she is unable to apply those characteristics to herself. Further, she is unable to independently weigh the risks and benefits of the proposed treatment. She is very afraid of the needle when she sees the nurse holding it and does not want it anywhere near her.
Nadia communicates using a few words, and was able to express that she was afraid of the needle used in the IV treatment. Both the nurse and doctor attempted to explain to Nadia that she was in need of the IV treatment and that the needle would not hurt her, but Nadia does not seem to understand them and keeps saying “No.”
When it comes to health care, it is usually the health care practitioner who determines whether a person is capable of consenting to the specific medical procedure at hand. After the nurse and the doctor tried to explain the procedure to Nadia, the doctor determined that she was not capable of consenting to the IV treatment on her own.
Nadia has been found incapable of consenting to the IV treatment by her doctor, and therefore Nadia’s sister, Sara, will act as her substitute decision-maker for this specific health care decision.
In some jurisdictions, the law sets out automatic SDMs, like family members, for medical decisions. For example, other areas of the country may adopt co-decision-making or representation schemes to address medical decisions. Whether a family member has de facto (automatic) rights to make medical decisions on behalf of another, without formal documentation in place, will depend on their province/territory of residence and the legal arrangements available to them. Such arrangements may include a personal or health care directive, or a Power of Attorney for Personal Care. Note that there are capacity requirements to be able to create a Power of Attorney and therefore, this arrangement may not be available to everyone. Refer to the tables in Appendix B to determine what is available in your area when it comes to health care decision-making.
As Nadia’s SDM, Sara must make health care decisions that are in accordance with her sister’s prior capable wishes, and if absent, her best interests, in consultation with her medical team. Before refusing or consenting to the IV treatment, Sara speaks with the doctor to understand all of Nadia’s options. In doing so, Sara learns that there is an alternative IV treatment available that does not involve a needle. Sara selects the alternative medical procedure for Nadia, in keeping with Nadia’s wishes.
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V. In Summary
People with disabilities should be able to make their own decisions whenever possible. After all, they are presumed to be capable of doing so under the laws across Canada! When a person’s ability to make their own decision is uncertain, however, we recommend working through the five key considerations that we have outlined:
- Is the person considered to be capable of making the decision independently?
- Does the person require supports, education and/or accommodation to exercise their decision-making capacity?
- Who assesses decision-making capacity?
- If the person is found to be incapable of making the decision, who is authorized to decide?
- What are the roles and responsibilities of SDMs?
Remember that the assessment of decision-making capacity and the types of decision-making models and arrangements will depend on the province and territory in which you live. For more details on your province or territory, take a look at Appendix A and Appendix B below.
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Appendix A - Decision-Making Models in Canadian Jurisdictions: An Overview
|
|
ON |
MB |
SK |
AB |
BC |
QC |
NB |
NS |
PEI |
NL |
YT |
NWT |
NU |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Substitute-Decision Making |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
|
Supported Decision-Making |
|
* |
✓ |
✓ |
✓ |
|
|
|
|
|
✓ |
|
|
|
Co-Decision -Making |
|
|
✓ |
✓ |
|
|
|
|
|
|
|
|
|
|
Specific Decision-Making |
|
|
|
✓ |
|
|
|
|
|
|
|
|
|
*Supported decision-making is not legislated but supported relationships or networks will be considered before the appointment of a substitute decision-maker.
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Appendix B - Decision-Making Models & Instruments by Province
ALBERTABRITISH COLUMBIA
MANITOBA
NEW BRUNSWICK
NEWFOUNDLAND AND LABRADOR
NORTHWEST TERRITORIES
NOVA SCOTIA
NUNAVUT
ONTARIO
PRINCE EDWARD ISLAND
QUEBEC
SASKATCHEWAN
YUKON
|
ALBERTA |
|||
|---|---|---|---|
|
|
PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
|
Arrangements under Adult Guardianship and Trusteeship Act, 2013 |
Trusteeship order
|
· Guardianship order · Supported decision-making authorizations · Co-decision-making orders · Specific decision-making form |
Trusteeship – Information from the Alberta government on the legal authority to make financial decisions for an adult.
Adult Guardianship - Information from the Alberta government on the legal authority to make personal decisions for an adult.
Understanding Guardianship (2023) - Guide from the Alberta government on understanding the Guardianship and Trusteeship Act.
Supported Decision-Making - Information from the Alberta government on authorizing someone to provide assistance with personal, non-financial decisions.
Co-decision Making - Information from the Alberta government on sharing decision-making with an adult who needs support making personal, non-financial decisions.
Specific Decision-Making - Information from the Alberta government on making a one-time decision for an adult who has lost capacity to make a decision about their health care. |
|
Arrangements under Powers of Attorney Act, 2000 |
Enduring Power of Attorney |
None |
Enduring Power of Attorney – Information from the Alberta government on allowing someone to make financial decisions on your behalf if you become incapable. |
|
Arrangements under Personal Directives Act, 2000 |
None |
Personal Directive (Agent) |
Personal Directives - Information from the Alberta government on naming someone to make personal decisions If you are incapable because of illness or injury.
Understanding Personal Directives - Guide from the Alberta government on understanding personal directives. |
|
Arrangements under Mental Health Act, 2000 |
None |
Mental Health only (in order): · Guardian (as under Adult Guardianship and Trusteeship Act) · Agent (as under Personal Directives Act) · Nearest Relative (as under Mental Health Act) |
Mental Health Act Fact Sheet – Information from the Alberta government on decision-making about involuntary detention and treatment if you are a formal patient or if you are subject to a community treatment order and are not mentally competent.
Mental Health Patient Rights – Information from the Alberta government on your rights if you are a formal patient or subject to a community treatment order. |
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|
BRITISH COLUMBIA |
|||
|---|---|---|---|
|
|
PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
|
Arrangements under Representation Agreement Act, 1996 |
Representation agreement for financial affairs
|
· Representation agreement for personal and health care decisions · Representation agreement with standard provisions for personal and health care decisions
|
Representation agreements (at page 8) – Government of British Columbia, Public Guardian and Trustee guide on personal planning tools. A representation agreement is a legal planning tool that allows you to give someone you trust the legal authority to make decisions or to represent you and make decisions for you if you are incapable of making decisions independently. |
|
Arrangements under Patients Property Act, 1996 |
Committee of estate
|
Committee of person |
Nomination of a Committee (at page 21) - Government of British Columbia, Public Guardian and Trustee guide on personal planning tools. If a court finds an adult incapable of managing their own affairs and/or their person, the court may appoint a person to become committee of the estate responsible for the adult’s financial affairs. |
|
Arrangements under Health Care (Consent) and Care Facility (Admission) Act, 1996 |
None |
Advance Directives (health care only) |
Advance Care Planning – Information from the Government of British Columbia on advance care planning with respect to health care.
Advance Directive (at page 20) - Government of British Columbia, Public Guardian and Trustee guide on personal planning tools, including a legal document called an advance directive. |
|
Arrangements under Power of Attorney Act, 1996 |
Enduring power of attorney |
None |
Enduring Power of Attorney (at page 3) - Government of British Columbia, Public Guardian and Trustee guide on personal planning tools. An enduring power of attorney allows you to give legal authority to a trusted person to manage your legal and financial affairs if you are not capable and cannot make your own decisions, or need help with decision making. |
|
Arrangements under Mental Health Act, 1996 |
None |
Mental health decisions are made by the director of a facility if you are an involuntary patient who refuses treatment or are incapable. |
Guide to the Mental Health Act – British Columbia Ministry of Health guide to the Mental Health Act, which applies if you have a mental disorder and require involuntary admission and treatment. |
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|
MANITOBA |
|||
|---|---|---|---|
|
|
PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
|
Arrangements under Vulnerable Persons Living with a Mental Disability Act, 1996 |
· Appointment of a substitute decision maker for property · Appointment of a substitute decision maker for both personal care and property |
· Appointment of a substitute decision maker for personal care · Appointment of a substitute decision maker for both personal care and property
|
Substitute Decision Making - Information from the Government of Manitoba on substitute decision makers, appointed by to make decisions for a vulnerable person who is unable to make certain decisions for themselves.
|
|
Arrangements under Mental Health Act, 1998 |
· Committee of Property
|
· Committee of Both Property and Personal Care
Mental Health only (in order): · Proxy (as under the Health Care Directives Act) · Committee of Both Property and Personal Care (as under Mental Health Act) · Nearest relative (as under Mental Health Act) |
Committeeship - Public Guardian and Trustee of Manitoba guidebook for court-appointed committees, to make decisions for a person who has been found to be mentally incapable of managing their own financial affairs.
Mental Health Act Admission – Information by the Government of Manitoba on admission and treatments for patients in psychiatric facilities.
Mental Health Act – Link to legislation. |
|
Arrangements under Powers of Attorney Act, 1996 |
· Enduring Power of Attorney · Springing Power of Attorney |
None |
Enduring Power of Attorney - Public Guardian and Trustee of Manitoba guidebook for donors and attorneys. An enduring power of attorney allows a person to give authority to another person to manage their financial affairs when incapable. |
|
Arrangements under Health Care Directives Act, 1992 |
None |
Health Care Directives (Proxy) |
Healthcare Directive - Information from the Government of Manitoba on the Manitoba health care directive. |
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|
NEW BRUNSWICK |
|||
|---|---|---|---|
|
|
PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
|
Arrangements under Infirm Persons Act, 1973 |
Committee of the Estate |
Committee of the Person
|
Infirm Persons Act – Link to legislation on court-appointed committees to act on behalf of a person. |
|
Arrangements under Enduring Powers of Attorney Act, 2019 |
Power of Attorney for Property |
Power of Attorney for Personal Care |
Enduring Powers of Attorney Act – Link to legislation on powers of attorney, which allow a person to appoint someone to make decisions on their behalf. |
|
Arrangements under Mental Health Act, 1973 |
None |
Physicians make mental health decisions to admit or treat patients whose mental illness puts them or others at substantial risk of imminent physical or psychological harm. |
Involuntary Hospitalization – Information from the Government of New Brunswick on involuntary hospitalizations under the Mental Health Act.
Mental Health Act – Link to legislation. This Act allows physicians to make mental health decisions to admit or treat patients whose mental illness puts them or others at substantial risk of imminent physical or psychological harm. |
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|
NEWFOUNDLAND AND LABRADOR |
|||
|---|---|---|---|
|
|
PROPERTY DECISIONS |
HEALTH CARE DECISIONS (INLUDING MENTAL HEALTH) |
RESOURCES |
|
Arrangements under Mentally Disabled Persons’ Estates Act, 1990 |
Guardianship of the Estate |
None |
Guardianship of the Estate - Information from the Supreme Court of Newfoundland and Labrador on guardianship of the estate for a mentally disabled person. |
|
Arrangements under Enduring Powers of Attorney Act, 1990 |
Enduring Power of Attorney |
None |
Enduring Power of Attorney (at page 13) – Seniors and the Law guide from the Public Legal Information Association of Newfoundland and Labrador. An enduring power of attorney allows a person to give authority to another person to manage their financial affairs when incapable. |
|
Arrangements under Advance Health Care Directives Act, 2006 |
None |
· Advance Health Care Directive (health care only) · Appoint a Substitute Decision Maker (health care only) |
Advance Health Care Directive (at page 17) – Seniors and the Law guide from the Public Legal Information Association of Newfoundland and Labrador. |
|
Arrangements under Mental Health Care and Treatment Act, 2006 |
None |
Patient Representative (mental health only) |
Patient Representatives and Rights Advisors – Information by the Government of Newfoundland and Labrador on people with severe mental illnesses who are involuntary patients or under a community treatment order. Physicians make mental health treatment and admission decisions for you. You can choose a person as your Patient Representative. Patient Representatives advocate and support you but do not make decisions on your behalf. Rights Advisors are appointed by the Government of Newfoundland and Labrador and they provide advice to you or your Patient Representative. |
* Newfoundland is the only province that does not have legislation for guardianship of the person. Nonetheless, courts have the authority to appoint a guardian for health and welfare decisions.3,4
[3] in A.A. (Re), 2019 NLCA 7, the Court of Appeal found that courts have inherent jurisdiction to appoint a guardian for health and welfare decisions. A.A. (Re) can be found online here: https://www.canlii.org/en/nl/nlca/doc/2019/2019nlca7/2019nlca7.html
[4] For more information, see the Supreme Court of Newfoundland and Labrador, “Will, Estate and Guardianship: Guardian of the Person (Mentally Disabled Person)”, online: https://court.nl.ca/supreme/general/wills.html#GoEMDP
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NORTHWEST TERRITORIES |
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Guardianship and Trusteeship Act, 1994 |
· Trusteeship order · Guardianship order
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None |
Guardianship – Information from the Government of Northwest Territories, Office of the Public Guardian on becoming a legal guardian of an individual.
Trusteeship of vulnerable and disabled persons - Information from the Government of Northwest Territories, Department of Justice on being appointed a trustee for a disabled person.
Guardianship and Trusteeship Act - Link to legislation |
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Arrangements under Powers of Attorney Act, 2001 |
· Enduring Power of Attorney · Springing Power of Attorney |
None |
Power of attorney - Information from the Government of Northwest Territories, Department of Justice on enabling another person to manage your finances for you using a power of attorney.
Guide to Springing and Enduring Powers of Attorney (2002) – A guide from the Public Trustee for the Northwest Territories on springing and enduring powers of attorney, which allow a person to appoint another person to manage their financial affairs on their behalf.
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Arrangements under Personal Directives Act, 2005 |
None |
· Personal Directive · Agent
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Personal Directives - Information from the Government of Northwest Territories on advance written instructions to health care and other service providers in case you cannot make your own personal decisions. |
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Arrangements under Mental Health Act, 2015 |
None |
Substitute Decision Maker (mental health only) |
Substitute Decision Makers – Information from the Government of Northwest Territories on doctors or designated facilities for people with mental health disorders seeking a Substitute Decision Maker if they cannot make their own personal decisions.
Frequently Asked Questions – Information from the Government of Northwest Territories on frequently asked questions about the Mental Health Act. |
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NOVA SCOTIA |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Adult Capacity and Decision-making Act, 2017 |
Representation order |
None |
Guide to Adult Representation (2017) – Government of Nova Scotia guide on process of applying to court to become a decision-maker for someone.
Explaining the Adult Capacity and Decision-making Act – Information from the Nova Scotia government on its Adult Capacity and Decision-making legislation.
Frequently Asked Questions about Adult Capacity and Decision-making – Information from the Nova Scotia government on representation of an adult. |
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Arrangements under Powers of Attorney Act, 1989 |
Enduring Power of Attorney |
None |
Powers of Attorney Act – Link to legislation. An enduring power of attorney allows a person to give authority to another person to manage their financial affairs when incapable. |
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Arrangements under Personal Directives Act, 2008 |
None |
· Personal Directive · Delegate · Substitute Decision Maker Hierarchy |
Personal Directives – Information from the Nova Scotia government on documenting wishes with regards to personal care decisions.
Information Booklet (2010) – Guide from the Nova Scotia government on preparing personal directives.
Frequently Asked Questions on Health Care Decisions - Information from the Nova Scotia government on personal directives and health care decisions. |
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Arrangements under Involuntary Psychiatric Treatment Act, 2005 |
None |
Substitute Decision Maker (mental health only) |
Mental Health Services – Information by the Government of Nova Scotia on the Involuntary Psychiatric Treatment Act, which applies if you are an involuntary patient with a mental disorder. |
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NUNAVUT |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Guardianship and Trusteeship Act, 1994 |
· Trusteeship Order · Guardianship Order
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· Trusteeship Order · Guardianship Order
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Guardianship - Information from the Nunavut government on appointing a guardian for an adults who is unable to make decisions regarding their care needs.
Guardianship and Trusteeship Act – Link to legislation. |
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Arrangements under Powers of Attorney Act, 2005 |
· Enduring Power of Attorney · Springing Power of Attorney |
None |
Powers of Attorney Act – Link to legislation. Powers of Attorney allow a person to appoint another person to manage their financial affairs on their behalf.
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Arrangements under Mental Health Act, 1988 |
None |
Mental Health only: · Substitute Consent Giver (as under Mental Health Act) · Guardian (as under Guardianship and Trusteeship Act) · Representative (as under Mental Health Act) |
Mental Health Act – Link to legislation, which governs patients with a mental disorder. |
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ONTARIO |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Substitute Decisions Act, 1992 |
• Continuing Power of Attorney for Property • Guardianship of Property |
• Power of Attorney for Personal Care • Guardianship of the Person |
Powers of Attorney Act – Information from the Ministry of the Attorney General on powers of attorney, which allow a person to give someone they trust the right to make decisions on their behalf.
Guardian of Property – Information from the Ministry of the Attorney General on becoming a guardian of property; to manage the financial affairs of a person who is mentally incapable of doing so for themselves.
Guardian of the Person – Information from Community Legal Education Ontario on a guardian of the person, who is authorized to make personal care decisions for a person who not mentally capable of making the decisions themselves.
A guide to the Substitute Decisions Act – The government of Ontario’s guide on the legislation, including a description of the various decision-making arrangements.
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Arrangements under Health Care Consent Act, 1996 |
None |
• Substitute Decision-Maker (health care only) • Representative (health care only) |
Substitute Decision Maker Hierarchy – Resource from Speak up Ontario with information on substitute decision-makers specific to health care decisions. Applying to the Board to Be Appointed a Representative – Information from the Consent and Capacity Board on being appointed a representative to make a decision with respect to treatment, admission to a care facility and/or personal assistance services. |
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Arrangements under Mental Health Act, 1990 |
None |
• Substitute Decision-Maker (health care only) |
Mental Health Act – Link to legislation. This Act governs decisions related to patients in psychiatric facilities. |
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PRINCE EDWARD ISLAND |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Powers of Attorney Act, 1988 |
Power of Attorney |
None |
Powers of Attorney Act – Link to legislation. Powers of attorney allow a person to give someone they trust the right to make decisions on their behalf.
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Arrangements under Public Trustee Act, 1988 |
Committee |
None |
Public Trustee Act – Link to legislation. A person may be appointed or authorized under this legislation to be the committee of the estate of an incompetent person. |
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Arrangements under Mental Health Act, 1988 |
None |
Guardian
Mental Health only: · Substitute Decision Maker · Guardian |
Mental Health Act – Link to legislation. A guardian for the person may be appointed by the court for an incapable person. For mental health treatment decisions where a patient is incapable, a Substitute Decision Maker is chosen by a psychiatrist and is usually a guardian, the most appropriate member of patient’s family, or other person who has a close relationship with the patient. |
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Arrangements under Consent to Treatment and Health Care Directives Act, 1988 |
None |
· Health Care Directive (health care only) · Proxy (health care only) |
Advance Care Planning – Information from the PEI government on advance care planning with respect to health care preferences.
Health Care Directive – Health care directive form.
Consent to Treatment and Health Care Directives Act – Link to legislation |
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QUEBEC |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Civil Code of Québec, 1991 |
· Advisor · Tutorship · Curatorship · Mandate
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· Advisor · Tutorship · Curatorship · Mandate
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Legal protection measures – Information from the Quebec government on the four protection measures used to address incapacity in adults.
Advisor – Information from the Quebec government on being an advisor to an adult to help with certain major decisions.
Tutor or Curator – Information from the Quebec government on being a private tutor or curator to a person who has been declared incapable to protect their person, exercise their civil rights and/or administer their property.
Dative tutor – Information from the Quebec government on designating someone to look after you or your property in the event that you become incapable. |
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Arrangements under An Act respecting the protection of persons whose mental state presents a danger to themselves or to others, 1997 |
None |
Representative (mental health only)
|
An Act respecting the protection of persons whose mental state presents a danger to themselves or to others – Link to legislation, which relates to confinement of persons whose mental state presents a danger to themselves or to others. |
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SASKATCHEWAN |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Adult Guardianship and Co-Decision- Making Act, 2000 |
· Property Guardian · Property co-decision-makers · Temporary property guardians |
· Personal Guardian · Temporary personal guardianship · Personal co-decision-makers
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Guardianship and Co-decision-making for Dependent Adults – Information from the Saskatchewan government describing the types of guardians and co-decision-makers. |
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Arrangements under Powers of Attorney Act, 2002 |
· Enduring powers of attorney · Springing Power of Attorney |
· Enduring powers of attorney · Springing Power of Attorney |
Powers of Attorney for Adults – Information from the Saskatchewan government on powers of attorney, allowing a person to appoint another person on their behalf in connection with their personal and/or property affairs. |
|
Arrangements under Health Care Directives and Substitute Health Care Decision Makers Act, 2015 |
None |
· Directive (health care only) · Proxy (health care only) |
Health Care Directives – Information from the Public Legal Education Association of Saskatchewan on health care directives, to be used when you cannot make your own decisions or cannot tell people what treatment you want or do not want. |
|
Arrangements under Mental Health Services Act, 1984-85-86 |
None |
Mental Health only (for Voluntary, Incapable Patients) · Nearest relative (as under Mental Health Services Act) · Proxy (as under Health Care Directives and Substitute Health Care Decision Makers Act) · Personal Guardian (as under Adult Guardianship and Co-Decision-Making Act) |
Guide to Mental Health Services Act – Information from the Government of Saskatchewan on the Mental Health Services Act, which applies if you are a person with serious mental illness and would likely cause harm to yourself or others, or suffer serious deterioration without treatment. For involuntary patients, attending physicians at the facility make mental health treatment decisions for you. |
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YUKON |
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|---|---|---|---|
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PROPERTY DECISIONS |
PERSONAL CARE DECISIONS (INCLUDING HEALTH CARE AND MENTAL HEALTH) |
RESOURCES |
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Arrangements under Adult Protection and Decision Making Act, 2003 |
· Guardian · Representation Agreement |
· Guardian · Representation Agreement |
Adult Guardianship - Information from the Yukon government on adult guardianship for an adult who is not able to handle their own affairs.
|
|
Arrangements under Enduring Power of Attorney Act, 2002 |
Enduring Power of Attorney (Attorney) |
None |
Enduring Power of Attorney - Information from the Yukon government on giving someone you trust an enduring power of attorney when you are sick or disabled and unable to make decisions for yourself.
|
|
Arrangements under Care Consent Act, 2003 |
None |
· Advance directive · Proxy · Substitute Decision Maker |
Planning for your Future Healthcare Choices – Booklet from the Yukon government on appointing someone you trust to make health care or personal care decisions for you through an advance directive.
|
|
Arrangements under Mental Health Act, 2002 |
None |
Mental Health only: · Substitute Decision Maker (as under Mental Health Act) · Attorney (as under Enduring Power of Attorney Act) · Guardian (as under Adult Protection and Decision Making Act) |
Capability and Consent Board – Information by the Capability and Consent Board, created by the Yukon Government, on involuntary admission of persons with a mental disorder.
Mental Health Act – Link to legislation. |
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