When Siblings cannot agree – Health Care Consent Act, 1996

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As a Designated Capacity Assessor I am often pulled into the middle of family distention and disagreements when it comes time to make decisions on behalf of mom or dad. Years of baggage can quickly shift the focus from what is best for mom or dad to who is the favorite or who is the control freak.

There is a frequently misunderstood definition in the Health Care Consent Hierarchy which sometimes helps.

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For most families it is pretty clear that if there is a POA, or two or three – they are the decision makers who were choosen. Guardians and appointment representatives are fairly rare.

But what if there is no POA, then what? If mom or dad if legally married – their spouse is the highest ranked SDM. But what about “Partner?” The Health Care consent act defines Partner as: “Either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives. 2002, c. 18, Sched. A, s. 10; 2004, c. 3; Sched. A, s. 84 (5, 6).”

Why is this important? Well, in the absence of a spouse it is very common for people to move to the next line in the hierarchy – “Parents or children.” It is not likely that “Parents” of an elderly person is going to cause too much argument, but what if there are 6 kids? The legislation says that all people who are legal siblings of the incapable adult are equally ranked and have equal right to participate in decision making on behalf of an incapable parent. Even if Suzie is in Australia, Joe is in Banff, Andy and Annie are in Peterborough, Sally is in Vermont and Billy is in Oshawa. Even if no one has heard from Annie in years and she and her parents had a falling out years ago, she still has the right to participate in decision making for her parent.

So, some of these siblings might abdicate to the others and bow out of the decision making process. That is as much their right as the right to participate. Even still, can 2 or 3 or 4 of these siblings agree on a plan of care?

But wait! Billy has been living with mom and dad for the past few years. He moved home to help look after them so they could stay at their own home. Some of the siblings think he is a freeloader, but others see him as stepping up for his parents. Whatever their perspective, Billy has been living with his parents for more than one year and as their caregiver, their relationship is of primary importance in both their lives. Note that there is no requirement for a balance of responsibilities or a symbiotic relationship. One party being dependent on the other if fine so long as they are important to one another. Now Billy has moved up the hierarchy. He is now a “Partner” under the legislation and he effectively outranks his siblings in decision making.

The “Partner” definition also would allow Waldorf and Statler to effectively exclude any children either of them might have from decision making and one could be SDM for the other if they have been sharing a place for more than a year. The gender and level of intimacy between of the incapable person and/or the SDM are completely irrelevant under the definition of Partner in the Health Care Consent Act, 1996.