II. SUBSTITUTE DECISION MAKING
Substitute decision making refers to a legal system which gives certain
individuals the right to make particular types of decisions on behalf of another
person who has been declared incapable (or unable) to make that particular type
of decision. In Ontario the Substitute Decisions Act, 1992,^3 is the key piece of
legislation outlining, among other things:
a) the circumstances under which a person can be declared incapable;
b) the processes to be employed when assessing a person’s capacity;
c) the various types of substitute decision makers;
c) the processes involved in appointing a substitute decision maker;
d) the powers and obligations of substitute decision makers; and,
e) the processes to be employed to terminate a guardianship or remove a
substitute decision maker.It is important to note that there is a major difference between substitute decision
making and supported decision making.^4 The key distinction between supported
and substitute decision making is that supported decision making helps an
individual make decisions for themselves. Supported decision making is a type of
accommodation that enhances and protects a person’s capacity to make
decisions thereby allowing them to retain their decision making autonomy.
Substitute decision making removes decision making power from the ‘incapable’
person. Once an SDM is in place to make certain types of decisions for an
incapable person, that person is no longer able to make those decisions for
themselves and have them legally recognized.
(^3) Substitute Decisions Act, 1992, SO 1992, c 30. See D’Arcy Hiltz and Anita Szigeti, A Guide to
Consent and Capacity Law in O 4 ntario (Lexis Nexis, 2012) at 23-163.
Supported decision making is described in more detail in the Capacity to Instruct Counsel
chapter in this Disability Law Primer.