- Download the Part X guide
- Terms used in this guide
- Does Part X of the CYFSA apply to you?
- Collection, use, and disclosure of personal information
- Consent and capacity
- Elements of consent
- Consent may be implied in some cases
- Consent may be written or verbal
- Presumption of consent’s validity
- Conditional consent and withdrawal of consent
- Capacity to consent
- Substitute decision-makers
- Safeguarding and managing personal information
- Access to records of personal information
- Individual’s right of access
- Access exceptions
- Is the record dedicated primarily to the provision of service to the individual?
- How are access requests made?
- Service provider’s response to access requests
- Substitute decision-makers can request access
- Correction of records
- Offences and immunity
- The role of the Information and Privacy Commissioner
Substitute decision-makers for incapable individuals
If an individual of any age is not capable of consenting, the CYFSA sets out who can be their substitute decision-maker for Part X.72 These persons, ranked in order, are the incapable individual’s:
- substitute decision-maker under the Health Care Consent Act, for specified purposes73
- guardian of the person or property
- attorney for personal care or property
- representative appointed by the Consent and Capacity Board74
- spouse or partner
- parent (not including access parent), or a children’s aid society or other person who is lawfully entitled to consent in the place of the parent75
- access parent (i.e., a non-custodial parent with only a right of access to the child)
- other relative
A person lower on the list (for example, an access parent) may be the individual’s substitute decision-maker only if no one higher on the list (for example, a custodial parent) exists and meets the criteria for consenting on behalf of the individual.76 Substitute decision-makers must be 16 years of age or older, available, willing, and capable.77
73. Specifically, this refers to a substitute decision-maker within the meaning of sections 9, 39 and 56 of the Health Care Consent Act, if the purpose of the collection, use or disclosure is necessary for, or ancillary to, a decision about a treatment under Part II, admission to a care facility under Part III, or a personal assistance service under Part IV of the Health Care Consent Act, respectively.
74. CYFSA, s. 305(1-2). Incapable individuals 16 years of age and older can apply to the Board to appoint a representative to consent on their behalf or a prospective representative can themselves make an application to the Board. Such applications cannot be made if the individual already has a guardian of the person or of property, or an attorney for personal care or for property.
77. The exception to this age restriction is where an individual’s substitute decision-maker is their parent, in which case the parent could be under 16 and still be a substitute decision-maker. Substitute decision-makers must not be prohibited by court order or separation agreement from having access to the individual or from giving or refusing consent on their behalf (CYFSA, s. 301(4); PHIPA, s. 26(2)).
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