A. Appointing a Substitute Decision MakerThere are two basic methods for appointing a substitute decision maker. One
method allows a person to designate their SDM, the other allows for the
imposition of an SDM upon a person, with or without their input. A person can
use a power of attorney to appoint the person whom they wish to have make
either property or personal care decisions on their behalf should they become
unable to make those decisions for themselves.^5 If a person has not selected an
SDM for themselves, a guardian of property or of the person can be appointed
for them by the Superior Court of Justice; a guardian of property can also be
appointed through various processes outlined in legislation such as the Mental
Health Act 6 or the Substitute Decisions Act, 1992. The Health Care Consent Act
also provides a hierarchy of individuals who may give or refuse consent to
treatment on behalf of a person under certain circumstances.^7
B. Powers of Attorney for Property and Personal Care^8An individual can grant an attorney for property (finance) or for personal care to a
person they trust and whom they wish to make certain decisions on their behalf.
An attorney for property can make decisions related to a person’s financial
affairs. Attorneys for property generally monitor a person’s income, manage
(^5) A power of attorney for property can take effect at any time the grantor wishes it to. The grantor
does not need to be declared incapable to allow the attorney to exercise the powers granted by
the power of attorney document, unless the document explicitly states that the power of attorney
does not take effect until the grantor has been declared incapable of making decisions related to
their property. Powers of attorney for personal care only take effect once the grantor has been
declared incapable of making personal care decisions. 6
Mental Health Act, RSO 1990, c M.7. See D’Arcy Hiltz and Anita Szigeti, A Guide to Consent
and Capacity Law in Ontario 7 (Lexis Nexis, 2012) at 279-418.
Health Care Consent Act, 1996, SO 1996, c 2, s 20. See also commentary in D’Arcy Hiltz and
Anita Szigeti, A Guide to Consent and Capacity Law in Ontario (Lexis Nexis 2013) at 184-85 for
further detail. 8
Powers of attorney can involve numerous complex issues. What is provided here is a very
general and basic introduction to the topic. For more specific details please see Ian Hull, Power of
Attorney Litigations, (CCH Canada Limited, 2000); Ontario Bar Association, “Powers of Attorney:
A Practitioner’s Tool Kit” (6 October 2005); Jasmine Sweatman, Guide to Powers of Attorney,
(Canada Law Book, 2002); Jordan Atkin, “Practice Gems: Drafting and Administering Powers of
Attorney for Personal Care an Property; Avoiding the Pitfalls” (Law Society of Upper Canada, 26
September 2010).