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Losing capacity, substitute decision making, and the right to make decisions

Sometimes circumstances or advanced age reduces a person’s mental capabilities. In those instances, he/she has to appoint substitute decision-makers, if still mentally able to do so, or the law will appoint one.

The rules and regulations for substitute decision making are contained in provincial and territorial acts. For instance, in Yukon the act is called The Adult Protection and Decision-Making Act and in Manitoba it’s The Vulnerable Persons Living with a Mental Disability Act.

Though every province and territory has an act governing substitute decision making, which are similar in nature, acts may also vary from province to province.

However, the point is that once you lose the capacity to make decisions in regards to your health and financial matters, then somebody steps in to do it for you. It’s either someone you have appointed in a power of attorney, or if nobody has been appointed, then the substitute decision makers act usually outlines which people qualify to step in.

Powers of attorney

A power of attorney is a document in which you can appoint another person, the “attorney”, to handle your personal affairs, such as financial and/or legal or make business decisions or handle property on your behalf. Powers of attorney are often separated into two areas; dealing with one’s property/business affairs and dealing with personal and health affairs. Powers of attorneys can be broad or very specific; it all depends on the person’s needs.

Beware; a power of attorney ends when you become mentally incapacitated.

If you want to have a power of attorney in place that appoints a person to deal with your affairs in case you become mentally incapacitated you have to get an enduring/continuing power of attorney. Other provinces or territories may call it by another name, but the point to this power of attorney is that if you lose your mental faculties gives the person you appointed the right to handle your affairs.

These powers of attorney have to be made before you become mentally incapacitated though or they won’t be valid.

Substitute decision makers

If you haven’t made provisions in case you become mentally incapacitated then the your province act would be apply.

If the person is unable to make decisions in regards to their finances or health, then either the court would appoint someone to act as a substitute decision maker, or the office of the public guardian/trustee would step in and designate a representative. A person may also apply to the court to be appointed as the substitute decision maker.

Who can be a substitute decision maker?

Usually the provincial acts will create a hierarchy of preferred substitute decision makers. The hierarchy of who the substitute should be depends on the individual acts, but usually includes: spouses, adult children, parents, siblings, other relatives, the office of the public guardian, etc.,

Generally, a substitute decision maker is an adult who is willing, able and suitable to act on behalf of the mentally incapacitated person.

Remember that every province and territory has their own requirements and if you want to get advice as to your personal situation, or to get a power of attorney drawn up, you need to consult a lawyer.

Read more:

Substitute Decision-Making British Columbia

The Vulnerable Persons Living with a Mental Disability Act Manitoba