Legal Decision-Making: Navigating Capacity and Consent Laws for Seniors

  • May 02, 2024
  • Kimberly Gale and Jessica Campolucci

The rise in the senior population in Canada has raised questions regarding how our aging population is making legal decisions, specifically in matters where capacity and consent are of importance. The discussion around capacity and consent affects the lives of seniors, their families, and caregivers. This article aims to shed light on the complexities surrounding capacity and consent issues and provide guidance for seniors, caregivers, and legal practitioners in Ontario. By exploring the legal framework, assessing challenges, and offering practical advice, we hope to empower those involved in the decision-making process with the knowledge and tools needed to make informed and respectful choices for the aging population.

Understanding Capacity and Consent

As per the Substitute Decisions Act (“SDA”) and the Health Care Consent Act (“HCCA”), to have capacity means that you are “mentally capable.” More specifically, capacity is the ability to mentally comprehend and make certain decisions regarding one’s life. This can be viewed in both a legal and/or medical lens, such as when granting or evoking a power of attorney (legal) or consenting to a specific health care decision (medical). In Ontario, capacity is task-specific, meaning a person may be deemed capable of making some decisions but not others. For example, an individual may not have the capacity to understand complex financial matters, but the individual may be capable of managing simple day-to-day decisions, like what to eat for breakfast or what clothes to wear. Another example comes from the Supreme Court of Canada’s decision in Starson v. Swayze, which states that having a mental disorder, such as depression or a personality disorder, does not mean a person is incapable.

Consent, on the other hand, is the agreement to a specific action or decision. For consent to be valid, it must be informed, voluntary, and given by a person with the capacity to consent.

Legal Framework in Ontario

Ontario's legal framework for capacity and consent is primarily governed by the SDA and the HCCA.

The SDA provides the legal basis for appointing a substitute decision-maker(s) for property and personal care. It outlines the criteria for presumption of capacity, the process for appointing a legal guardian, and the powers and duties of guardians and attorneys.

The HCCA sets out the rules for obtaining consent for treatment, admission to care facilities, and personal assistance services. It establishes a hierarchy of substitute decision-makers for individuals who are incapable of consenting to treatment. The HCCA also provides guidelines for assessing capacity to consent to treatment and outlines the rights of individuals to refuse treatment or withdraw consent.