Who Is a Temporary Substitute Decision Maker Under BC Law?

A hospital or care team may phone you and ask you to consent to treatment for a parent, partner or sibling who cannot decide for themselves. It can feel like a heavy responsibility, especially if you were not expecting it.

In British Columbia, the person who steps in is called a temporary substitute decision maker, often shortened to TSDM. This article explains who qualifies, how the order of priority works, and what limits apply to the role.

This article covers the law of British Columbia.

When a temporary substitute decision maker is needed

As a starting point, a health care provider must not give health care to an adult without the adult's consent, except where the law allows it. When deciding whether an adult is incapable of consenting, the provider looks at whether the adult shows they understand the information given and that it applies to their situation.

A TSDM is not always needed. If the adult has a personal guardian or a representative with authority, the provider gets substitute consent from that person, and no TSDM is chosen. Urgent care is another exception: health care may be given without consent if it is needed without delay to preserve the adult's life, among other conditions.

The order of priority

The provider must choose the first qualified person in this order:

• The adult's spouse
• A child
• A parent
• A sibling
• A grandparent
• A grandchild
• Anyone else related to the adult by birth or adoption
• A close friend
• A person immediately related to the adult by marriage

For this purpose, a spouse includes a person married to the adult and not living separate and apart, and a person living with the adult in a marriage-like relationship. A married person who is living separate and apart from the adult does not count as a spouse. That means a separated spouse does not take the top spot, and the provider moves to the next person on the list.

Who qualifies

Being on the list is not enough. To be chosen, a person must meet all of these requirements:

• Be at least 19 years old
• Have been in contact with the adult during the preceding 12 months
• Have no dispute with the adult
• Be capable of giving, refusing or revoking substitute consent
• Be willing to comply with the duties of a TSDM

If you are asked to act and you do not meet these requirements, or you are unwilling, the provider looks further down the list. If no listed person is available or qualified, or there is a dispute about who should be chosen, the provider must choose a person authorized by the Public Guardian and Trustee.

Your duties and the limits on your authority

Before giving or refusing consent, a TSDM must consult the adult to the greatest extent possible and follow any instructions or wishes the adult expressed while capable. If the adult's wishes are not known, the TSDM must decide in the adult's best interests.

The role also has limits. A TSDM cannot consent to types of health care that the regulations prescribe. A TSDM can refuse life-preserving health care only if the health care providers caring for the adult substantially agree. Which types of care are prescribed is set out in regulations, so ask the care team or a lawyer if you are unsure whether a particular treatment is covered.

What to do next

• Ask the care team whether the adult has a representation agreement or a guardian, since that person would be asked first.
• Tell the provider honestly if you are not in the priority position, are separated, or have a dispute with the adult.
• Ask the adult's family and friends if the adult ever spoke about their wishes, and pass this on to the care team.
• Write down what you are asked to decide and what you were told.
• If relatives disagree about who should decide, or you are unsure of your authority, speak with a lawyer.

Frequently asked questions