Personal care, and who decides when there's no power of attorney

David Levin is sixty-seven, a retired civil servant in Toronto, from a Jewish family. His husband, Paul, is seventy, a former jazz pianist who hums through every meal. On Tuesday he had a stroke. He can't speak clearly now, and his doctor needs a decision about treatment. In the hallway, Paul's daughter from his first marriage tells the doctor, I'll be deciding.

So here's the question. When a person can't make a health decision, who decides for them? And how?

This is general information, not legal advice, and a lawyer should review your own documents. The first answer is a power of attorney for personal care. Anyone sixteen or older who is capable can make one. It covers health care, housing, food, hygiene and safety. A person paid to care for your parent can't be named, unless they're family.

It only works for decisions the person can't make themselves. For treatment, or a move into long-term care, a health practitioner or an evaluator must first find the person incapable of that decision. Capacity is judged decision by decision. And if your parent is asked to see a capacity assessor, they can say no, unless a court orders it.

But Paul never signed one. So Ontario's Health Care Consent Act sets out a ladder. First, a court-appointed guardian. Then an attorney for personal care. Then a representative named by the Consent and Capacity Board. Then a spouse or partner. Then children and parents, who rank equally. Then brothers and sisters. Then any other relative. The first person on that ladder who qualifies decides.

To qualify, that person must be capable, available and willing, and not barred by a court order or a separation agreement. If nobody qualifies, or two people on the same rung disagree, the Public Guardian and Trustee decides. Not the eldest. The government doesn't step in automatically, and disputes can go to the Consent and Capacity Board. So here, David, as Paul's husband, comes before Paul's daughter.

The ladder says who. The law also says how. The decision-maker must follow a wish that applies, if Paul expressed it while he was capable. If there's no such wish, they decide in his best interests. So the job isn't to choose what David wants, or what the daughter wants. It's to speak for Paul.

Now, their side. Paul can't talk easily right now, but his earlier wishes still count. Maybe he once said he'd want every treatment, or that he'd never want to be kept going on machines. It's fair to guess he'd want the two people who love him to stop arguing and start remembering. The question for both of them is simple: what would Paul say, if he could?

Let's change one fact. Suppose David and Paul had separated last year. A separation agreement or a court order can bar a spouse from deciding. In general terms, the decision could move down the ladder, and Paul's daughter, and his mother if she were still alive, would rank equally. This is exactly where a lawyer's advice is worth it.

The mistake families make is assuming the eldest child, or whoever is at the bedside, automatically decides. The loudest voice in the hallway isn't the law. The ladder is. Knowing it ahead of time can prevent a painful fight.

Here's the rule, in one breath. Paper first, then the ladder, and whoever decides must follow your parent's wishes.

This week, work out who is first on your parent's ladder today. Is there a power of attorney for personal care? A spouse? Several children who rank equally? If it's unclear, a lawyer or a legal clinic can help. To find a capacity assessor, the Capacity Assessment Office is at four one six, three two seven, six seven two four.

Next time, advance care planning: talking about wishes, so whoever decides knows what your parent would want.