Do I have to prepare an advance care plan?
No. Advance care planning is a voluntary process. There is no legal requirement that you prepare an advance care plan about what health care you may want in the future nor is it a requirement for you to prepare a power of attorney for personal care to choose in advance a person to act as your substitute decision-maker in the event that you become incapable.
The Health Care Consent Act sets out a hierarchy or list of substitute decision-makers who will make health and personal decisions on your behalf if you become incapable of doing so, even if you have not prepared a power of attorney for personal care. If you do not want the person who is highest ranking in that hierarchy to act as your substitute decision-maker, this is a good reason to participate in advance care planning by preparing a power of attorney for personal care and naming someone else to act as your substitute decision-maker.
The law states that that the substitute decision-maker must make any decisions for an incapable person in accordance with any known wishes you expressed while you were capable. Communicating your wishes to your future substitute decision-maker will help him or her make decisions for you. If there are no such wishes or they are not applicable to the particular situation, the substitute decision-maker must act in what they believe to be in your best interests.
What happens if I have appointed a substitute decision-maker in a power of attorney for personal care but I am still capable?
Health practitioners are required to get consent or refusal of consent for treatment from you while you are mentally capable. This is true even if you have prepared an advance care plan or a power of attorney for personal care. Advance care plans are directions to your substitute decision-maker to guide him or her in decision-making only when you are incapable. Even if you have signed a document expressing advance wishes, the health practitioner must still get consent from you.
What happens if I haven’t expressed any advance wishes about my care but I am found to be incapable of making decisions about my treatment or personal care?
If you are found to be mentally incapable, the health practitioner must turn to your substitute decision-maker for consent or refusal of consent.
In the event of a medical emergency where you are incapable of giving consent, your health practitioner does not need to get substitute consent for treatment. Instead, the health practitioner considers what is medically possible, what is needed to prevent serious bodily harm to you and what is needed to be done to relieve your suffering. If your health practitioner is aware of any wishes made while you were capable to refuse certain treatments, he or she is required by law to comply with those wishes. To ensure that a particular type of treatment is not administered, some people choose to do some form of advance care planning. For example, Jehovah’s Witnesses carry documentation stating that they do not wish to receive blood transfusions. The doctor would have to comply with this wish.
An advance care plan cannot, however, require a health practitioner to provide treatment that they do not believe to be medically appropriate.
How do I advance care plan?
The key to advance care planning is communication, whether oral, written or made through an alternate means (e.g., Bliss board or sign language).
Wishes expressed orally or through alternative means of communication are just as valid as wishes set out in writing. Some people, however, may feel more comfortable writing down their wishes as they may be clearer and less subject to misinterpretation than verbal wishes.
Written documents may be in the form of a power of attorney for personal care. The legal requirements for powers of attorney for personal care are set out in the Substitute Decisions Act. There are also written documents that are commonly referred to as an “advance directive” or “living will.”
What is the difference between a “power of attorney for personal care” and an “advance directive” or “living will”?
A power of attorney for personal care is a document in which you name a substitute decision-maker (an attorney) to make decisions about your personal care if you become mentally incapable. You may also set out your wishes about care and your values and beliefs.
The Substitute Decisions Act sets out the formal requirements for a power of attorney for personal care. It must be in writing and witnessed by two people who sign the document at the same time that you sign. You must be mentally capable of preparing the document. You must also be mentally capable of making decisions about any of the care and treatments about which you express specific wishes in the power of attorney.
A living will or advance directive does not name a substitute decision-maker. Instead, it is usually a statement of your wishes, values and beliefs. These wishes are a guide to the person who would be your substitute decision-maker for health care matters from the list of decision-makers in the Health Care Consent Act.
There is no reference to living wills or advance directives in any Ontario statutes, including the Health Care Consent Act and the Substitute Decisions Act. As a result, there are no formal requirements for these documents.
Can my family, friends or doctors make a power of attorney for personal care or advance directive for me?
No, the only person who may prepare such a document is you, as long as you are capable of doing so. Powers of attorney for personal care and advance directives are personal documents that contain your wishes. Only you can express your wishes, not substitute decision-makers.
Can a doctor, hospital or long-term care home require that I prepare a power of attorney for personal care, an advance care plan or use a particular form?
No. The preparation of a power of attorney for personal care, an advance care plan or written directive is not required for access to any type of health care in Ontario, including admission to a hospital or long-term care home.
While health facilities may suggest a particular form for an advance care plan, you are not required to sign it. It is often a good idea for health practitioners and health facilities to make information available to patients and residents about advance care planning documents as an information service but they should not, and cannot, require patients/residents to prepare these documents as a condition of service or residence. Remember, it is up to you whether you want to create an advance care plan. If yes, you can decide to use the particular form suggested by the health facility or you can use one of your own choice (e.g., a power of attorney for personal care).
If I prepare a power of attorney for personal care, advance directive or living will, does this mean that a health practitioner needs to only follow the instructions contained in the document?
No. The fact that a written document exists that contains wishes or directions does not mean that the health practitioner may get direction from that document in lieu of speaking to you, or if you are incapable, your substitute decision-maker.
Powers of attorney for personal care and other forms of advance directives "speak" to the substitute decision-maker, NOT to the health practitioner, except in an emergency situation where you are incapable and it is likely not possible to get consent or refusal of consent from your substitute decision-maker in a timely fashion.
What is a “level of care” form? Should I sign a level of care form?
A level of care form is a type of general advance care plan that is often provided to residents of long-term care homes. It usually sets out a number of “levels of care” which range from no intervention through to extensive treatment and intervention, no hospitalization (e.g. a wish to remain at the long-term care home at the end-of-life) through to a request for transfer from the long-term care home to a hospital for treatment if care needs exceed that which can be delivered in present setting.
One of the problems with a level of care form is that the levels outlined are arbitrary. Your choices for future care are not limited to the three or four levels outlined in the form. A level of care form may be a good starting point for discussions about possible options and the range of options for care but should not be used as a complete definition of your choices for future care. It is best used as a tool and not as an advance care plan.
Many long-term care homes “require” residents to complete such documents upon admission. This is not legal and, in fact, can be detrimental to the resident. If you are mentally incapable, a level of care form cannot be completed by the substitute decision-maker because a substitute decision-maker cannot advance plan in this manner.
Even if you have completed a level of care form, the staff at the long-term care home must still get consent from you, if capable, or from your substitute-decision maker, if incapable, for any treatments and other health care.
Problems arise from the use of such forms. Sometimes, a level of care form is used improperly as a consent form. Instead of speaking to you or your substitute decision-maker to find out if you can consent to a treatment, the health practitioner may simply look at the form and make his or her own determination about treatment. Health practitioners can never “consent” to treatment and they can treat an incapable person without consent only in emergency situations.
Level of care forms, as with many advance care documents, lack the specificity required for consent. When a person says they “do not want hospitalization,” do they mean never, or just at end of life? What does “no heroic measures” mean? This will depend on the circumstances and will be different for each person. If the form says “no antibiotics,” does it mean that the person never wants antibiotics or only if they have pneumonia? Or, does this mean that the person cannot have antibiotics to cure a tooth abscess which is causing severe pain?
There are many examples where these documents have been misused and misinterpreted. You should only sign such a document for yourself with extreme caution. If you are not comfortable signing the document, you do not have to do so.
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Phone: 416-598-2656
Fax: 416-598-7924
Advance Care Planning - Frequently Asked Questions
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