Chapter 3 Substitute Consent

imissyou419's version from 2017-10-20 23:58


Question Answer
The issue of substitute consent only arises once it is established thata patient is incapable or a statute has given decision making authority to a third party
The common law principles of substitute consent have been displaced by... what's the exception?HCCA and SDA, with the exception of substitute consent to research, non-medical sterilization and removal of tissue for transplantation
Under the HCCA, substitute decision maker, best interest- SDMs must give or refuse consent based on any prior applicable wish expressed when the patient was capable and 16 years or older; or if no prior wish is known or it is impossible to comply with, the decision must be based on the incapable person's best interest;
- In determining best interests, an SDM must take into considering:
patient's values and beliefs that person held while capable and 16 years or older,
any wishes expressed by the person while incapable and under 16,
whether the person's condition or well-being is likely to improve,
whether the treatment's benefits outweigh the risks, and
whether a less intrusive treatment would be beneficial;
Under the HCCA, is the SDM entitled to the information that the patient would be entitled to if capable? Yes
Under the HCCA, can a SDM with authority to consent to treatment consent to necessary and ancillary treatments, and to admission to a hospital, psychiatric or other health facility?Yes
T/F Under the HCCA, if an incapable person who is 16 or older objects to admission to a psychiatric facility, an SDM has authority to admit them voluntarilyFalse, SDM generally has no authority to admit them voluntarily (for additional protection); unless SDM is a court appointed guardian and guardianship order contains specific authority to consent to that admission or POA for personal care and POA grants specific authority to consent to the admission
SDMs can apply to the CCB fordirection if the patient's prior wish, its applicability in the circumstances, or the patient's capacity when the wish was expressed is unclear, and in other specific circumstances; and for consent to treatment contrary to the patient's prior wish, but only if the patient, if now capable, would probably consent b/c the likely outcome is significantly better than he/she would have anticipated
SDMs cannot apply to the CCB forto challenge a capable person's decision or prior expressed wish merely b/c it is rash, imprudent or medically unsound
SDMs cannot be held civilly liable if they act in good faith in accordance with the Act
What are the 5 ways in which a person can get authority to exercise substitute consent for personal care on an incapable person's behalf?1. court-appointed guardian of the person;
2. POA for personal care;
3. personal representative;
4. family members and others named under section 20 of the HCCA;
5. Public Guardian and Trustee (PGT)
Court-appointed guardian of the personan appointment will not be made if there is a less restrictive alternative;
appointment only made if there is a finding person is incapable and needs decisions made;
except in limited circumstances, a person providing health care or residential, etc services for compensation cannot be appointed to be guardian;
PGT appointed guardian if no other available person;
has ongoing decision making authority until guardianship order terminated by court;
may apply to court to replace guardian if they are not complying with Act;
guardianship application requires: proposed guardian's consent, a guardianship plan, statement signed by applicant indicating incapable person informed of the application and his/her right to oppose;
may be partial or full guardianship
POA for personal care
age to create POA
age to be POA
decision making when
must be at least 16 years of age and CAPABLE to create a POA for personal care;
POA for personal care must be 16 years or older, competent, willing to serve, and available;
POA for personal care is a written doc that must be executed in presence of 2 witnesses (prohibit designated attorney and close family members from being witnesses); document may include: grantor's expressed wishes about care, treatment, and admission to hospital and care facilities, method of assessing capacity and factors to be considered in doing so;
POA for personal care provides no decision making authority unless grantor has been found to be incapable;
POA for personal care is terminated when: attorney dies, resigns or becomes incapable, court appoints a guardian of the person, or grantor creates a new POA or revokes the POA
Personal representativeincapable person who are 16 and older may ask CCB to appoint a person of their choosing to their personal representative to give or refuse consent on their behalf;
principle does not apply if incapable patient already has court-appointed guardian or POA for personal care;
CCB may appoint the person named or another person but only if the patient does not object;
representative must be 16 years of age or older, and the appointment is in the incapable person's best interests
What are the 3 safeguards on substitute decision making for personal care?1. regulated health practitioners can apply to the CCB if they believe that an SDM has not acted in accordance with the patient's prior expressed wish or, if none, the patient's best interests;
2. The PGT must investigate allegations that a person who is INCAPABLE of personal care may be suffering or may be at risk of suffering SERIOUS illness or injury, or a deprivation of liberty or personal security; if PGT reasonably believes that an incapable person is suffering these "serious adverse affects" the PGT must apply to the court to be made the incapable person's temporary guardian.
3. Any person with the court's permission may apply to the court to resolve a question regarding a guardianship of the person or POA for personal care
What is the hierarchy of substitute decision makers for personal care under section 20 of the HCCA?1. Court-appointed guardian of the person;
2. POA for personal care;
3. Personal representative appointed by CCB;
4. Spouse or partner (spouse - married or are living in a conjugal relationship outside of marriage AND have cohabitated for at least 1 year, are together the parents of a child, OR have cohabitation agreements; partners - lived together for at least 1 year and have a close personal relationship that is of primary important in both person's lives; 3. NOT spouse - living separately as a result of a breakdown in their relationship).
5. Child, parent, guardian including Children's Aid Society;
6. A parent with only a right of access;
7. Siblings;
8. Other relatives by blood, marriage, or adoption;
9. PGT
In order to serve as an SDM for personal care, a person must beat least 16, capable, present or been contacted, and willing' with exception of capable parent who may consent regardless of his/her age
A person may exercise substitute decision making authority if:believes that no one at the same or high level exists or;
believes that a person at the same or higher level exists but that person is NOT a court-appointed guardian or POA for personal care or a personal representative AND that person would not object
A person would have no authority to exercise substitute consent if he/she believes that:the person at the same or higher level was a court-appointed guardian, POA or personal representative; or
the person at the same or higher level was not a court appointed guardian, POA or personal representative but would object.
The PGT would exercise substitute consent in these situations
If 2 or more eligible SDMs (16, capable, willing, present, etc) at the same level disagree, who makes the decision?PGT makes the decision

Section 2

Question Answer
What are the 5 ways to obtain authority to exercise subsitute consent for property on an incapable person's behalf1. court-appointed guardian of property
2. POA for property under The Powers of Attorney Act
3. POA for property under the Substitute Decisions Act
4. Statutory guardian of property pursuant to the Mental Health Act. If a patient in a psychiatric facility is certified to be incapable of managing property, the PGT will become his/her statutory guardian of property
5. Statutory guardian of property pursuant to a certificate of incapacity
Statutory Guardian of Property pursuant to a Certificate of Incapacity- a third party may ask an individual to submit to a capacity assessment, but he/she is under no obligation to do so
- moreover, individuals may arrange to undergo a capacity assessment on their own
- if an assessor concludes that the individual is incapable of managing property, the assessor must file a certificate of incapacity with the PGT
- upon receipt of the certificate, the PGT will become the person's statutory guardian of property; the PGT must inform the incapable person of the statutory guardianship and his/her right to challenge the assessor's incapacity findings to the CCB
- an incapable person's POA for property, spouse, partner, or relative may apply to the PGT to replace him or her as the incapable person's statutory guardian of property
3 Safeguards on substitute decision making for property (really 2)1. The PGT has a duty to investigate any allegations that a person who is INCAPABLE of managing property has lost or may be at risk of losing a SIGNIFICANT portion of his or her assets
If the PGT reasonably believes it is necessary to intervene to prevent such losses, the PGT must apply to the court to be made the incapable person's temporary guardian of property
2. Any person, with the court's permission, may apply to the court to resolve a question regarding a guardianship of property or a continuing POA for property
Obligations of Guardians and POAs for property- guardians of property are fiduciaries who must act diligently, honestly, and in utmost good faith for the incapable person's benefit
- guardian's must explain their powers and duties, and encourage incapable person's participation to the extent possible
- guardians must encourage regular personal contact b/w the incapable person and supportive family and friends
- guardians must keep proper accounts for all transactions
Under obligations of guardians and POAs for property, uncompensated guardian vs. compensated guardianuncompensated guardian must exercise the standard of care that prudent individuals would exercise in managing their own assets.
A compensated guardian must exercise the standard of care of a professional property manager
Under obligations of guardians and POAs for property, are guardians personally liable for any damages resulting from a breach of their duties?Yes
Under obligations of guardians and POAs for property, in making expenditures, priority must be given toincapable person's care and support and education and that of his/her dependents and to the person's other legal obligations
Under obligations of guardians and POAs for property, can you give loans?strictly limits gifts, loans, and charitable donations
May be given but only if they would not interfere with making the preceding expenditures
Gifts and loans may be made if there are reasonable grounds to believe that the person expressed the intention to make such a gift or loan while capable and has not expressed a contrary view while incapable
Charitable donations within specified limits can be made, but only if the incapable person authorized making such donations in a POA while capable, or if there is evidence that the person made similar expenditures while capable
Role of PGTrequired to maintain updated registers of guardians of person and property, and provide this info to anyone who requests it
Successful civil suits against banks and other institutions have promoted them to do what?develop their own forms and security protocols to protect their incapable, elderly, and vulnerable clients from fraud and misappropriation

Section 3

Question Answer
In regards to making decision, if a child is capable and no statute gives authority to the parents, who makes decision?Child
Legal concept of custodybundle of decisions making authority that parents have regarding their incapable children. It must be distinguished from physical custody
T/F custodial decision making authority cannot be dividedF, it can be divided in various ways (e.g. a mother may have authority over a child's religious upbringing and the father may be able to make education decisions)
Legal concept of accessright to visit with, and be visited by, a child and the same right as a custodial parent to information about the child's health, education, and well-being
Are both parents equally entitled to custody?Yes, unless a court order or separation agreement provides otherwise
Custodial parent
parent seeking treatment
unsure of legal authority
if parents live separate and apart, the parent with whom the child lives with (with the other parent's implicit or explicit consent)
Has authority to make decisions on an incapable child's behalf, but a parent with a legal right of access is entitled to information about those decisions
When a parent seek treatment for an incapable child, the health practitioner can rely on that parent's consent. The practitioner is not required to determine or confirm the other parent consents
If a practitioner or agency is unsure of a person's legal authority to make decisions on a child's behalf, it is appropriate to require the person to provide proof of their claimed status