The Best Interests Test in Ontario: How Attorneys for Personal Care Make Decisions

When an Attorney for Personal Care has to make a health, safety, or living-arrangement decision on behalf of someone who's been found incapable, Ontario law doesn't leave it to guesswork — or to what the attorney personally thinks is best. The best interests test only comes into play once a narrower, earlier question has already been asked and answered: did the incapable person leave behind a known wish that actually applies?

This two-step approach surprises a lot of people, including attorneys themselves, who sometimes assume the role gives them open discretion to decide as they see fit. It doesn't.

This article walks through both steps of the framework, what the "best interests" factors generally look like, and some of the misunderstandings that cause friction between family members.

Step One: Did the Person Leave a Known, Applicable Wish?

Ontario's Substitute Decisions Act asks the attorney to look first for any wish the person expressed while capable — so long as it applies to the decision at hand and it's actually possible to follow it. If a clear, applicable wish exists, the attorney is generally expected to follow it, even if the attorney personally disagrees with it.

This is why conversations about your own wishes, ideally recorded in writing, matter far more than most people realize when they sign a Power of Attorney for Personal Care.

Step Two: If There's No Known Wish, What Does "Best Interests" Mean?

Only when there's no known, applicable wish does the attorney move to a best-interests analysis. This generally involves weighing factors such as:

• The person's own values and beliefs, to the extent they're known
• Whether a proposed decision is likely to improve the person's condition or well-being, or prevent it from getting worse
• Whether the expected benefit of a decision outweighs the risk of harm
• Whether a less intrusive option would achieve a similar benefit

These are the kinds of factors this area of the law generally asks a decision-maker to weigh. Because how they apply can turn heavily on the specific medical or personal-care question involved, a lawyer or the person's health care team can help apply them to a real situation rather than in the abstract.

What the Best Interests Test Is Not

• It isn't the attorney's personal preference substituted for the incapable person's own. The test is about the incapable person's values and welfare, not what the attorney would choose for themselves.
• It isn't a decision made in isolation from the person's history and character. Known values and past statements still matter, even short of a clear, applicable wish.
• It isn't available before the personal care document has actually taken effect. A Power of Attorney for Personal Care generally only takes effect once the person has been found incapable of the specific decision in question — not simply because a diagnosis exists.

When Family Members Disagree About What's "Best"

Disagreement among family members about a personal care decision is common, and it doesn't automatically mean anyone is acting improperly — reasonable people can weigh the same factors differently. Persistent disagreement can still be a sign it's worth getting legal advice, particularly if there's a genuine concern that the named attorney isn't following the two-step framework at all.

Naming more than one attorney for personal care jointly is one way some families try to build in a second opinion, but it can also create its own friction if the co-attorneys disagree with each other and the document doesn't say how that gets resolved. Thinking through this at the drafting stage, rather than leaving it to be worked out during a crisis, tends to serve families better.

Frequently asked questions