My Uncle Jim is one of the wisest men I know. People figure this out very quickly and he is often the “go to” for intelligent and insightful answers to questions about business, sports, politics and even medical care. He is also incredibly caring and over the years I have seen Uncle Jim take on the role of caregiver for a young brother (inoperable brain tumour), a sister in midlife (serious car accident), a 72 year-old sister (dementia) and a beloved 82 year-old brother (lung cancer).
If you have supported a loved one with health issues you can well understand the range of responsibilities that come with being a caregiver. In my uncle’s case his caregiving responsibilities included the young and the old, and in all of these situations, health care decisions had to be made…..
Knowing all this about my Uncle Jim, I assumed that he was well versed and well prepared to be a substitute decision maker for my Aunt Cecile if her health deteriorated and she was incapable of making her own health care decisions. It was, therefore, quite a surprise to me last week when my Uncle Jim asked me for some help,
How Does This Substitute Decision Making Thing Work?
My Uncle Jim is a “doer.” He just assumed that he was my Aunt’s “family” and he would be called upon to make decisions when needed. He really did not understand how decision making works in Ontario.
After providing over 500 education sessions on this topic, our team has realized that my Uncle Jim is not alone in his confusion around substitute decision making and advance care planning. In a Waterloo Wellington community survey, more than 60% of respondents reported that they had identified their substitute decision maker but less than 30%actually had a conversation with that person. You really can’t have one without the other…
What Does it Mean to be a Substitute Decision Maker?
In Ontario, Advance Care Planning involves two key pieces: (1) identifying your substitute decision maker (SDM) and (2) having conversations with your SDM, family and friends, regarding your wishes, values and beliefs. For my Uncle Jim, he needed to start by talking with my Aunt Celine to confirm who she has chosen as her substitute decision maker.
What is a Hierarchy of Substitute Decision Makers?
One of the most common misunderstandings that we come across in our sessions is that many assume that the only way to become a SDM is to be named the power of attorney (POA) for personal care. However, in Ontario, being named in a POA document is only one way that a loved one can confirm you as their future SDM.
Actually, everyone has an automatic substitute decision maker provided by law if a health care decision is required and the patient becomes mentally incapable of making their own health care decisions. When a health care provider proposes a treatment , he/she must get consent from you (if capable) or your SDM.
To determine who your SDM is, the provider will turn to this hierarchy — a ranking of possible decision makers — and they will start at the top of the list until they find the highest ranked decision maker based on your situation.
The Lightbulb Goes On When We Mention Power of Attorney for Personal Care
As presenters, we often say that an entire session could be spent reviewing the hierarchy of SDMs with the audience. We do however, see the lightbulb go on when we mention the term power of attorney for personal care . Most have heard this term, and many have named a person(s) in a POA for personal care document.
To be honest, I think the assumption that anyone named in POA document is the ONLY type of substitute decision maker comes in part from the fact that other than going to court to name a guardian, the POA for personal care IS the highest ranking on the hierarchy. It is also a document, a piece of paper, and the health care system tends to like the clarity and orderliness of this document.
Creating a POA document, unlike the automatic hierarchy, allows you to choose a specific family member, bypass a family member to another relative that knows you better, or go beyond family to name a trusted colleague, friend, neighbour or other. It also allows you to name alternates in the even that your first choice named in a POA document is not willing or able to act as your SDM.
When I asked my Uncle if he was my Aunt Cecile’s attorney named in a POA, he had no idea. As I said, he is a natural caregiver and would simply move to action in caring for someone. However, Ontario law is pretty clear on who the health care provider takes direction from when a health care decision is required and the patient is unable to make his/her/their own decisions. So… the Power of Attorney for Personal Care gets a lot of attention and is a powerful legal document.
Do I Have to Go to a Lawyer to Prepare a POA Document?
One of the questions we get asked most often as presenters is whether you need to see a lawyer in order to name someone in a POA for personal care. Given that families can be quite complex and only you can decide what is best for your personal situation, our team does not give advice on whether to see a lawyer or use a “do it yourself” option. I will say that during the course of our project, we worked with some great lawyers and estate planners so we know the value of the great conversations and work they do in helping a person prepare these POA documents. Up until recently, the only DIY options we were aware of was the downloadable blank forms available on the Ministry of the Attorney General website, which you can prepare and have witnessed as per the directions with the forms.
I have to be honest in saying that the first time my husband and I were leaving on a trip we quickly downloaded the documents, filled them out and had them witnessed. Many years later, when doing the same thing with an estate planner and a lawyer, we realized that we had been misinformed and had not in fact completed those early documents properly. Using the blank forms without all the knowledge around these documents and/or if your family dynamic is complex or conflicted can be risky …
The Launch of a New ONLINE Tool to Create Your POWER Of Attorney
In May of this year, Community Legal Education Ontario (CLEO) announced the launch of a new free online tool called Guided Pathways. I am quite familiar with CLEO as this organization has provided various resources free of charge and their POA brochures are two such resources that we often share at our sessions.
Guided Pathways is a free online tool that not only guides you through the creation of power of attorney documents (property and personal care) but has incorporated additional information at various points throughout the process to help you better understand the decisions you are making.
Judith Wahl of Wahl Elder Law who was the legal consultant, co-designer of this tool recently joined us as a guest for our online session “Helping You Create a Power of Attorney.” I personally have known Judith for a number of years and have been impressed by her advocacy for correct understanding of Ontario law and her ongoing commitment to providing presentations and meeting with the public to understand how this information is being interpreted.
As our guest, and in partnership with our ACP Ambassador Team, Judith walked almost 60 attendees through the tool and highlighted key concepts important to consider when choosing a Substitute Decision Maker. Feedback from attendees reinforced the interest in this option calling the session “a fantastic presentation, so informative and sharing in the chat that “ they were looking forward to exploring the tool and sharing the recorded webinar with colleagues, family and friends”.
You can watch the full recorded webinar below, or on our YouTube channel.
Should I See a Lawyer or Use a DIY Option?
Even though we are often asked, our team does not give advice on whether to see a lawyer or use a “ do it yourself” option. I would suggest, however, that the Guided Pathways tool is Ontario specific and aligned with Ontario law, which is so important as there are many tools accessible on the web that are not.
I would also suggest that one of the key benefits of simply walking through this tool is that it clarifies the law while you are working through the document and provides a variety of prompts that help you think about what is important to consider in choosing your SDM.
This was a great session and we are only getting started on our virtual offerings. Please follow us on Twitter and watch the Hospice of Waterloo Region’s Facebook page for upcoming virtual sessions. There are 3 more online sessions planned to explore the role of SDM for a loved one 1) in long-term care, 2) in a hospital setting and 3) a final session “It’s About the What If’s.”
And if you are wondering about my Uncle, we talked about the very things I have touched on here. As I expected, he took the information together with his established wisdom and experience, and went off to have the first of many more specific ACP conversations with my Aunt.
We also discussed the Guided Pathways tool, which I really can’t say whether this tool would be appropriate for Aunt Cecile’s situation. But at least it does give her another option. I do want to reiterate that given the complexity of family relationships, it CAN be challenging and only you can decide what is best for your personal situation.