When does a substitute decision-maker make decisions?

A substitute decision-maker (SDM) will ONLY make your healthcare decisions when you are NOT mentally capable of making a healthcare decision.

Some examples of times where your SDM might be asked to make decisions include:

  • During surgery or any time when when you are unconscious 
  • In advanced dementia 
  • During a temporary time of incapacity
    • Alcohol or drug intoxication 
    • Medication side effects 
    • Infection causing confusion

Some examples of the kind of decisions SDMs can make include:

  • Surgery
  • Starting or stopping medications
  • Admission to a Long Term care home
  • Starting or stopping life support
Anchor Image
Anchor Image

What does it mean to be mentally capable?

Being mentally capable means that you must have the ability to BOTH:


1. Understand the information you are given about the decision to be made: 

  • Why is the treatment being recommended? 
  • What are the benefits of saying Yes or No?
  • Are there any other options?


2. Understand what could happen if you say Yes or No to the treatment: 

  • How might it help or harm you? 
  • What will likely happen if you have it (or decide not to)? 

Your healthcare provider will determine if you are mentally capable to make your own healthcare decisions.

If you disagree in Ontario you have the right to ask the Consent and Capacity Board to review that decision.

Anchor Image

Being capable or having capacity is specific to each healthcare decision

Specific to each healthcare decision:

A person may NOT be capable of making a decision about surgery. But they may still be capable of making a decision about blood pressure medication.

Specific to the time a healthcare decision is made:

A person may not be capable of making a decision today but will be capable tomorrow.

Some examples of temporary times might be: 

  • Alcohol or drug intoxication
  • Medication side effects
  •  Infection causing confusion
Anchor Image

What happens if I am not mentally capable?

  • If you are not mentally capable of making your own healthcare decisions, your SDM(s) will need to consent for you.
  • It will help your SDM(s) if they understand the things that are important to you.
  •  ACP conversations you have today will make it easier for your SDM(s) in the future so they don’t have to guess at your wishes in the middle of a difficult time.

For more information on capacity, please visit the Advocacy Centre for the Elderly website at: http://www.advocacycentreelderly.org



Frequently Asked questions

Why is ACP important?

  • ACP is a way to help you prepare for your future health care needs
    • Learning about your illnesses
    • Identifying your substitute decision-maker
    • Thinking about your priorities and values about your health
  • ACP helps your substitute decision-maker learn more about your health issues, values and priorities in case they need to make decisions for you in the future
  • ACP prepares your SDM(s) to give consent for treatments in the future if you are NOT mentally capable.
  • ACP conversations you have today will make it easier for your SDM(s) in the future so they don’t have to guess at your wishes in the middle of a difficult time.
  • ACP can decrease the burden and stress experienced by your SDM

How will my SDM make decisions if I have not had any ACP conversations?

  • If your wishes are not known, your SDM(s) must act in your “best interests.”
  • “Best interests” has a specific meaning in law: your SDM must consider a person's values and beliefs.
  • They would also consider:
    • Your health condition
    • If you are likely to improve, remain the same or deteriorate without the treatment
    • The risks and benefits of the treatment options

What if I change my mind after I write down my wishes?

  • Advance Care Planning is a process and a person can always change their mind.
  • In Ontario, it is the most recent wishes that your SDM(s) should consider when they make a decision.
  • Things you tell an SDM are just as important as what you put in writing. The most recent is the one that's important. 
  • For example if you write down something today and then tell your SDM something different in a month, those are the wishes they need to consider.

What is Informed Consent?

  • Informed consent refers to the permission you give health care providers for medical investigations and/or treatments.
  • Before you can be asked to give permission, a healthcare provider must give you all the information you need to make that decision.
  • They must also give you an opportunity to ask questions. 
  • If English is not your first language, you may ask for an interpreter.
  • It is your health and you have a right to ask information you need.

Click Here for More

Who Determines Mental Capacity?

  • The health care provider proposing the treatment will determine if you are mentally capable of consenting to or refusing treatment.
  • For example, if you are having surgery, it will be your surgeon who determines if you are capable of agreeing to the surgery.
  • If you are found incapable, you have the right to ask the Consent and Capacity Board to review that finding. The health care provider who believes you are mentally incapable must tell you about that right of review.

What kind of decisions might an SDM make on my behalf?

If you cannot speak for yourself, your SDM(s) will make decisions for your care. These decisions will be based on the conversations you already had about your wishes, values and beliefs. These decisions could include things like whether or not to:

  • have tests, surgery or other medical care
  • stop or start a treatment
  • move to a long-term care home



Where would you like to go next?