Wednesday, June 23, 2021
When people hear the term “advanced care planning” they often think it’s about having a will or planning a funeral. While those topics are important, they are not part of Advanced Care Planning. Advanced Care Planning is all about while you’re still alive—what happens if you are unable to make a decision for yourself? Who will make a decision on your behalf?
The person to make a decision on your behalf is called a Substitute Decision Maker (SDM). The SDM should be someone you trust, and someone who knows you very well so that they can make the types of decisions that you would make yourself. It is the responsibility of the SDM to act in your best interests and to make decisions that you would make, even if they would personally choose something different.
Did you know that you already have an SDM? Even if you haven’t selected someone, there is a hierarchy that is set out and followed, in lieu of having selected your SDM. Here is the hierarchy:
2. Power of Attorney (POA) for Personal Care
3. A representative appointed by the Consent and Capacity Board
4. Spouse or partner
5. Children or parents
6. Parent with the right of access (i.e. custody)
7. Brother or sister
8. Any other relative by blood, marriage, or adoption
9. Office of the Public Guardian and Trustee
If a substitute decision-maker is required, this list is consulted—starting at the top, if someone doesn’t have number one, they move onto number two and likewise until they find someone who can act as your substitute. The catch is that you might select someone who isn’t reflected on this list. For example, you might have a really close friend who has known you for 40 years but friends don’t make the list. Instead, a long-lost cousin would qualify as “any other relative by blood, marriage or adoption.” If you would like the friend to make your decisions for you, then you need to appoint that friend as your Power of Attorney for Personal Care — then they are at the top of the hierarchy should the need ever arise.
Sometimes people figure that they have lots of relatives and people who care about them, so they don’t appoint a POA. Such situations can be tricky though. For example, if someone is in their 60’s and no longer married, but they have three adult children in their 30’s as well as parents who are aged 85 and 92 — all five of these people would need to agree on every single decision. Based on the hierarchy chart, parents and children have equal ranking; one does not trump the other. As long as the children are over age 16, they can be an SDM. In this example, there are three children over age 16 and two parents who are presumed capable and a unanimous decision would be required for any medical decisions. You can imagine how complicated this situation would become!
Looking at the hierarchy, you may be content with the automatic SDM. For many people, the automatic option is number four — spouse or partner. To be considered common-law for the purpose of assigning the SDM, the couple must have been living together for at least one year prior to the SDM being appointed.
If a couple separates or divorces, they are no longer considered under option number four. An ex-spouse of decades would be overlooked as the SDM and a distant relative could be assigned instead. If a divorcing couple were amicable and still wanted to be SDM for each other, they would need to assign each other as their POA for personal care.
The safest way to ensure that your medical decisions are made as YOU would wish is to confirm your selection for SDM or appoint a Power of Attorney for Personal Care. This eliminates possible confusion or delay as people sort through the hierarchy. Appointing an SDM or POA gives you the opportunity to discuss in advance what your wishes would be. Don’t assume that someone else would know your preferences — tell them what you would like for your own personal care.
While it is always preferable to discuss your wishes with your POA, you might be surprised to know that it is possible to appoint someone as POA without their knowledge! There is no paperwork requiring a POA to accept the position. Theoretically, someone can be appointed as a POA and never be informed. They are just called upon to act as SDM when the need arises.
However, there is no requirement that someone accepts the role of Substitute Decision Maker (SDM) at any time. A spouse who is highest on the hierarchy can refuse to act as the SDM and have the responsibility roll over to the next level. Even a POA can refuse the responsibility of the SDM and decline being involved. For this reason, it is often advised that you select an SDM or POA as well as a backup — in case your first SDM is unavailable or unwilling to act as SDM.
There are a few requirements for who is eligible to be an SDM:
1. They must be capable
2. 16 years of age or older
3. Have no court orders or separation agreements in place
4. Be available
5. Be willing to act as SDM
Beyond these basic criteria, you want to select someone who will act in your best interests, so what other criteria can you use? Here are a few important elements to consider:
If there is ever a situation when you are unable to make your own health care decisions, you want to be certain that you have the right person in place who will make decisions that you would make for yourself — this is what Advance Care Planning is all about.
A quick synopsis of what to do for Advanced Care Planning:
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