Substitute decision-makers for incapable individuals

If an individual of any age is not capable of consenting, the CYFSA sets out who can be their substitute decision-maker for Part X.⁷² These persons, ranked in order, are the incapable individual’s:

substitute decision-maker under the Health Care Consent Act, for specified purposes⁷³
guardian of the person or property
attorney for personal care or property
representative appointed by the Consent and Capacity Board⁷⁴
spouse or partner
parent (not including access parent), or a children’s aid society or other person who is lawfully entitled to consent in the place of the parent⁷⁵
access parent (i.e., a non-custodial parent with only a right of access to the child)
sibling
other relative

A person lower on the list (for example, an access parent) may be the individual’s substitute decision-maker only if no one higher on the list (for example, a custodial parent) exists and meets the criteria for consenting on behalf of the individual.⁷⁶ Substitute decision-makers must be 16 years of age or older, available, willing, and capable.⁷⁷

72. CYFSA, s. 301(4); PHIPA s. 26

73. Specifically, this refers to a substitute decision-maker within the meaning of sections 9, 39 and 56 of the Health Care Consent Act, if the purpose of the collection, use or disclosure is necessary for, or ancillary to, a decision about a treatment under Part II, admission to a care facility under Part III, or a personal assistance service under Part IV of the Health Care Consent Act, respectively.

74. CYFSA, s. 305(1-2). Incapable individuals 16 years of age and older can apply to the Board to appoint a representative to consent on their behalf or a prospective representative can themselves make an application to the Board. Such applications cannot be made if the individual already has a guardian of the person or of property, or an attorney for personal care or for property.

75. If a society is entitled to consent in the place of the parent, this paragraph does not include the parent. If the incapable person has a child who is over 16, the child is also included in this paragraph.

76. CYFSA, s. 301(4); PHIPA, s. 26(4). Note that the Public Guardian and Trustee may make the decision to consent if no other person meets the requirements.

77. The exception to this age restriction is where an individual’s substitute decision-maker is their parent, in which case the parent could be under 16 and still be a substitute decision-maker. Substitute decision-makers must not be prohibited by court order or separation agreement from having access to the individual or from giving or refusing consent on their behalf (CYFSA, s. 301(4); PHIPA, s. 26(2)).