Guest Post: The Role of Caregivers and Substitute Decision-Makers in Long-Term Care
by Family Councils Ontario
By Lisa Feldstein, Lawyer practicing Family Health Law™ at Lisa Feldstein Law Office.
I recently presented a webinar for Family Councils Ontario on “The Role of Caregivers and Substitute Decision-Makers in Long-Term Care.” It is a challenging topic to cover in just one hour (and even more challenging to distill into a blog), but here are 10 takeaways from the presentation:
- “Substitute decision-maker” is a legal term with several definitions that vary depending on the context and type of decision in question. Imagine a pie where each slice represents a different category of decision (e.g. property; treatment). One substitute decision-maker might have control over the whole pie, two substitute decision-makers might split a pie, or two substitute decision-makers may have to equally share every single slice (among other variations).
- A family caregiver, such as a spouse or adult child, may have no legal authority to make decisions for a resident in long-term care. Being related does not automatically grant decision-making rights. Every situation is unique. You may need to speak with a lawyer to find out what rights and obligations you have.
- The role of a substitute decision-maker is largely responsive. In many cases, especially for treatment decisions, the role of a substitute decision-maker is to provide consent or decline to provide consent. This typically arises only after a health care professional has proposed a treatment and asked for a decision. For example, a physician might ask a substitute decision-maker to consent to a stool softener for a resident.
- A substitute decision-maker is entitled to all the same information that a resident would be given in order to make an informed decision.
- Substitute decision-makers can (and should) advocate for their loved ones, but the law does not require long-term care homes to comply with all requests.
- The substitute decision-maker is a decision maker and not responsible for providing care. Likewise, close family and friends who are not the substitute decision-maker are not excluded from being involved in their loved one’s personal care.
- The law ensures that we all have a substitute decision-maker for decisions about treatment, personal assistance services and admission to care facilities. There is a list in the Health Care Consent Act that establishes who makes those decisions for us. It can be possible to override the list and “outrank” the default substitute decision-maker(s).
- There is no default substitute decision-maker for property decisions (not even between spouses). If there is no Continuing Power of Attorney for Property, a loved one may have to apply to become guardian of property.
- Substitute decision-makers have legal duties that regulate how they must make decisions. If they violate the law there can be consequences.
- A substitute decision-maker’s rights are typically only activated when their loved one is no longer “capable” of making certain decisions. There are legal tests for capacity and people can be legally capable of making their own decisions despite a serious mental health diagnosis or obvious cognitive impairment.
To watch the full presentation click here.
- Lisa Feldstein