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Hierarchy of SDM

When a CASLPO member is proposing a service and does not believe that the person is capable of being able to provide consent, a substitute decision maker would be called upon. The hierarchy of substitute decision makers is as follows:

• Guardian of the person, provided that the guardian has the authority to give or refuse consent to the service.
• Attorney for personal care, provided that the power of attorney provides authority to give or refuse consent to the service.
• A representative appointed by the Consent and Capacity Board, if the representative has authority to give or refuse consent to the service.
• Spouse or partner.
• Child, parent or children's aid society.
• Parent with right of access only.
• ​A brother or sister.
• ​Any other relative.
• The Public Guardian and Trustee.

In order to qualify as a substitute decision maker, a person must meet all of the following criteria:

• Be capable with respect to the service.
• Be at least 16 years old. The only exception is if the person under 16 is the incapable person's parent.
• Not be prohibited by a court order or separation agreement from having access to the incapable person or from giving or refusing consent on the incapable person's behalf.
• Be available.
• Be willing to assume the responsibility of giving or refusing consent.

In order to determine who is the highest ranking substitute decision maker, the CASLPO member simply has to ask the person if they are aware of any higher ranked substitute. Normally one gets consent from the highest ranked substitute unless:

• The highest ranked substitute is not capable, available or willing to act in this role. In such a case, one seeks consent from the next highest ranked substitute.
• If two or more persons of equal rank disagree about service and if their claims rank above all others, then the Public Guardian and Trustee shall make the decision.

Guidelines for SDM

The substitute decision maker must make decisions based on the person's known wishes, whether verbal or written. However, these wishes must have been expressed while the person was capable and was at least 16 years old. If there are no known wishes or if it is impossible to comply with those wishes, the substitute decision maker (SDM) must make the decision based on the incapable person's best interests. In doing so, the SDM must take into consideration the following:

• The values and beliefs of the incapable person.
• Any prior wishes expressed by the incapable person when capable.
• Whether the service will improve the incapable person's condition or well being, prevent it from deteriorating, or reduce the rate of deterioration.
• Whether the incapable person's condition or well-being is likely to improve, remain the same or deteriorate without the service.
• Whether the expected benefits of service outweigh the risks.
• Whether a less restrictive or less intrusive service would be just as beneficial as the proposed service.