Power of Attorney: Determining if you are mentally incapable of making decisions

Who decides that I am mentally incapable of making decisions about health treatment?

Health practitioners cannot treat you without your consent. If they decide that you are incapable of making decisions about your treatment, then they must get the consent of your substitute decision-maker.

This means your attorney or other substitute decision-maker cannot make treatment decisions for you unless a health practitioner first decides that you are incapable of making them yourself. There are many different types of health practitioners, such as doctors, nurses, dentists, physiotherapists, occupational therapists, psychologists, and psychiatrists.

Who decides that I am mentally incapable of making decisions about a long-term care facility?

Someone called an "evaluator" decides whether you are capable of making your own decisions about entering a long-term care facility.

An evaluator must be a nurse, doctor, psychologist, occupational therapist, social worker, physiotherapist, speech language therapist, dietitian, or audiologist. Your attorney cannot make these decisions for you unless an evaluator finds that you are incapable of making them yourself.

How will my attorney make decisions for me if I become mentally incapable?

If you express wishes about your personal care, your attorney must follow them if you become incapable, if they apply to the decision that your attorney must make on your behalf.

The wishes must have been expressed voluntarily when you were still capable, and you must be at least 16 years of age. The wishes may be included in your Power of Attorney for Personal Care or in a separate document, or you may have expressed them orally or by any means that you use to communicate, such as through a communication board.

Wishes about health care are often called "advance care plans" because these are wishes expressed by you in advance of when decisions about treatment or other health care need to be made. These wishes can help guide your attorney or anyone else who may need to act as your substitute decision-maker for health care if you become mentally incapable and unable to make health care decisions for yourself.

No matter what form any advance care plan about health care takes, it is not for doctors or medical staff to follow. It is for your Attorney for Personal Care, or other substitute decision-maker, to follow when deciding whether to consent to particular treatments or other health care.

If your attorney does not know of any wishes, or you did not give any, your attorney must make decisions based on what is in your best interest. He/she must consider your values and beliefs and even the wishes you expressed after you became incapable.

Your attorney must weigh the probable benefits and risks of any decision, and must decide if a treatment, type of care, or course of action will improve your quality of life, or prevent or slow its deterioration. Your attorney must decide if the benefit to you outweighs the risk.

Your attorney might also decide that you would want to change a wish if you were still mentally capable. For example, your Power of Attorney for Personal Care might say that you do not want to enter a particular care facility or receive a particular treatment. However, the facility or treatment might have improved after you signed that. If your attorney believes that you would now feel differently, he/she can apply to the Consent and Capacity Board for an order allowing him/her to go against your stated wishes. But your attorney must convince the Board that you would probably have changed your mind if you were still mentally capable.

What if I am mentally capable of making some personal care decisions?

Your attorney can only make decisions for you that you are not capable of making yourself. For example, if you are capable of making decisions about your diet and hygiene but not about your health care, your attorney can make decisions only about your health care.

To be continued next month.

Drop by the Monday Market and pick up your free copy of the Powers of Attorney Booklet at the Trillium Court booth.