Specific Health Care Decisions under Alberta's Adult Guardianship and Trusteeship Act

Introduction Proclaimed in force October 30, 2009, Alberta's Adult Guardianship and Trusteeship Act repeals the province's thirty-year-old Dependent Adults Act, refitting the law respecting personal as well as property wardship. (1) Guiding principles are entrenched, protective measures are fortified, and decision making options are augmented. (2) Numbered among the latter now is that of the next of kin to consent to the health care of an incapacitated adult. In this article, I depict previous relevant Alberta law, then detail the so-called specific decisions provisions under the new Adult Guardianship and Trusteeship Act. Their implementation, I conclude, better protects both health care providers and patients--one or two shortcomings notwithstanding. Previous Alberta Law Prior to October 30, 2009, prior to proclamation of the Adult Guardianship and Trusteeship Act, such consent was as ineffective as it was unnecessary. Without more--without either a guardianship order or a personal directive--not even the relative could validly consent on behalf of an adult. (3) On the other hand, the need for such was waived. According to subsection 29(1) of Alberta's Dependent Adults Act: Where an adult person (a) is, in the written opinion of 2 physicians, in need of an examination or medical, surgical or obstetrical treatment or is, in the written opinion of 2 dentists, in need of dental treatment, (b) is incapable by reason of mental or physical disability of understanding and consenting to the examination or medical, surgical, obstetrical or dental treatment needed, and (c) has not previously withheld consent to the examination or medical, surgical, obstetrical or dental treatment needed, to the knowledge of either of the physicians or the dentists referred to in clause (a), a physician or dentist may, without the consent of any person, examine the person, prescribe treatment for the person and provide the person with the medical, surgical or obstetrical treatment or with the dental treatment, as the case may be, in the manner and to the extent that is reasonably necessary and in the best interests of the person examined or treated, in the same way that the physician or dentist could have acted if the person had been an adult of full legal capacity who consented to the examination or treatment. (4) Superfluous then, but revealing, was the advice the College of Physicians and Surgeons of Alberta offered its members in 2002: From a practical standpoint, physicians should consult with the family of the individual and receive their approval prior to performing the treatment under consideration. (5) Adult Guardianship and Trusteeship Act Part 3, Division 1, of Alberta's new Adult Guardianship and Trusteeship Act, Specific Decisions, both sanctions such advice and allays the anxiety underpinning it. (6) A health care provider--a medical practitioner, a nurse practitioner, a dentist--who has determined an adult lacks capacity to make a decision respecting either health care or temporary admission to or discharge from a residential facility may turn to another, to the first in a ranked list of nearest relatives: 1(x) (i) spouse or interdependent partner; (ii) adult son or daughter; (iii) father or mother; (iv) adult brother or sister; (v) grandfather or grandmother; (vi) adult grandson or granddaughter; (vii) adult uncle or aunt; (viii) adult nephew or niece. (7) Those of the whole blood, and the elder or eldest of two or more in the same category, are preferred, regardless of sex. (8) Capability and availability, but also recent contact with and knowledge of the adult--of his or her beliefs and values or wishes respecting the decision to be made--are required as well. Finally, there must be no dispute with the adult that might affect the relative's ability to comply with the duties of a specific decision maker. …

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