If you understand the concepts and rules about capacity and consent, you can better plan and deal with future medical and financial matters. This can help keep you out of a potentially abusive situation.
- What is capacity?
- What is consent?
- Planning Ahead: While you have capacity
- Incapacity: What happens when you lose capacity
What is capacity?
- the ability to understand information that is relevant to making a decision, and
- the ability to appreciate the reasonably foreseeable consequences of making or not making the decision.
Capacity is measured on a spectrum. This means there is a range of different options, from having good capacity to having some capacity to having no capacity. A person can have capacity to make some decisions but not to make other decisions. For example, the capacity necessary to decide where to invest money is different from the capacity necessary to decide whether to take a crafting class. A person’s capacity can also change over time, especially if the person is suffering from a degenerative disorder.
What is consent?
You generally have the right to accept or refuse medical treatment—as every adult does. A doctor requires your consent before treating you. This means that:
- You must be legally able to give consent. For example, if you are the subject of a guardianship order in respect of medical decisions, you are not legally able to make decisions about your medical treatment.
- You must be mentally able to allow the medical treatment. This means you are able to make a reasoned choice about the treatment because you understand the consequences of the decision being made.
- No one can pressure you to make the decision. You must freely decide.
- Your consent must be an informed consent. This means that the medical professional must give you enough information about the medical procedure for you to be aware of the risks and benefits. You must also be informed of all treatment options.
If you are able to give consent but a doctor treats you without your consent, or without fully informing you about the medical procedure, you could sue the doctor in the civil courts for “battery”. Battery is the legal term for an interference with another person’s body without consent. The courts have found that it is also a battery to treat a patient who is not able to consent to medical treatment if the doctor knew, when the person was able to consent, that they did not want to have the treatment.
The only way you can lose the ability to make decisions about medical treatment is if you become mentally incapacitated.
In an emergency situation, a doctor or other health professional can treat you without consent if the treatment is to preserve your life or health. If the situation is very urgent, the doctor can treat you without consulting anyone first.
In slightly less urgent situations, the health care provider can choose a relative of yours to make the decision. This is known as Specific Decision-Making and is permitted under Alberta’s Adult Guardianship and Trusteeship Act. This option is only for situations where you do not have a Personal Directive or Guardian and a health care provider believes you cannot provide consent to health care or to your temporary admission to or discharge from a facility.
Planning Ahead: While you have capacity
There are several steps you can take while you have capacity to plan ahead for when you might lose capacity. Planning ahead can also help prevent some types of abuse. Not only can you name alternative decision-makers that you trust, but these persons can face consequences if they do not follow your instructions or fulfill their legal duties.
There are different tools for dealing with personal decisions and financial decisions.
Personal decision-making tools include:
- Personal Directive: a legal document you make while you have full capacity and in which you name someone to make personal decisions for you when you lose capacity
- Supported Decision-Making Authorization: a form in which you name a supporter to help you make personal decisions while you have good capacity
- Co-Decision-Making Order: a court order you agree to if you have some capacity but need help making personal decisions
Financial decision-making tools include:
- Power of Attorney: a legal document you make while you have full capacity and in which you name someone to make financial decisions for you (such as an Enduring Power of Attorney for when you lose capacity)
- Jointly-owned Property: owning property with someone else who can also control the property, such as a bank account or house
- Informal Trusteeship: putting someone in charge of depositing your government cheques and paying your bills if you have reduced mental capacity
You must have full capacity to make a Personal Directive and Enduring Power of Attorney. Every person over the age of 18 years old should prepare the legal documents as no one knows the future! By preparing these documents now, you can make sure your affairs are taken care of in the way that you want when you are no longer capable.
NOTE: The documents described above cannot be used directly to stop abuse. However, these options can be used to help prevent abuse, as it gives the you the ability to appoint a helper of your choice. If you start experiencing abuse, the person named in these documents has legal power. This in turn, may take power away from the abuser.
For more information on planning ahead, see these CPLEA resources:
- Elder Abuse: Planning Ahead tipsheet
- Planning for Incapacity booklet
- Medical Assistance in Dying tipsheet
- Decision-Making Tools video
- Personal Directives, Enduring Powers of Attorney and Wills video
Incapacity: What happens when you lose capacity
Who gets to make decisions for you when you lose capacity depends on what planning you did while you had capacity.
If you have made a Personal Directive, the Agent you named will be able to make personal, non-financial decisions for you. If you do not have a Personal Directive, someone will need to apply to the court to become your Guardian. Sometimes a Guardian is necessary even if you have a Personal Directive if you have not given your Agent the power to deal with all of your personal matters.
If you have made an Enduring Power of Attorney, the Attorney you named will be able to make financial decisions for you. If you do not have an Enduring Power of Attorney, someone will need to apply to the court to become your Trustee. Sometimes a Trustee is necessary even if you have an Enduring Power of Attorney if you have not given your Attorney the power to deal with all of your financial matters.
You may choose the same person or different persons to be your Attorney and Agent. In the same way, your Guardian and Trustee can be the same person or different persons.
For more information on incapacity, see CPLEA’s Elder Abuse: If Plans Haven’t Been Made tipsheet.