Making Decisions on Behalf of a Donor: The Role of an Attorney

Note this article provides legal information, not legal advice. Reading this article should not be construed as obtaining legal advice from Ross Estate Law.

Making Decisions on Behalf of a Donor: The Role of an Attorney

When a person (the "donor") is no longer capable of making decisions about their own affairs, an appointed attorney assumes the responsibility of making those decisions. However, this responsibility comes with the legal obligation to act in the best interest of the donor, keeping their wishes, values, and beliefs in mind. Here's how attorneys are guided in making decisions for donors under such circumstances.

Consulting with the Donor

When making a decision on behalf of a donor who lacks the capacity to decide for themselves, the attorney is required to consult with the donor, if it is reasonable to do so. This consultation ensures that the donor's preferences are respected as much as possible. If the donor is unable to provide guidance, the attorney must follow a set of guidelines to determine the appropriate course of action.

Decision-Making Process

Here’s how the attorney should make decisions:

1. Follow Instructions Given When the Donor Had Capacity (Section 2B(1)(a)) If the donor provided specific instructions when they had capacity, the attorney must follow those instructions. This ensures that the donor’s prior wishes are respected even if they no longer have the capacity to express them.

2. Follow Current Wishes (Section 2B(1)(b)) If no clear instructions are available, the attorney must try to determine the current wishes of the donor, provided those wishes are reasonable. This step emphasizes honouring the donor's autonomy and ensuring that their current preferences guide the decision-making process.

3. Determine What the Donor Would Have Wanted (Section 2B(1)(c)) If the donor’s wishes are unclear or unreasonable, the attorney is expected to make the decision that aligns with what they believe the donor would have chosen had they been able to make the decision themselves. In this case, the attorney must take into account the donor’s known values and beliefs to make a reasonable determination.

4. Best Interests of the Donor (Section 2B(1)(d)) If none of the above methods are possible or applicable, the attorney should make a decision they believe is in the best interests of the donor. This decision should reflect an understanding of what would most benefit the donor, even if it cannot be based on their specific wishes or values.

Handling Conflicting Instructions

In situations where a donor has given conflicting instructions over time, the attorney is required to prioritize the most recent instructions. This ensures that the donor's latest intentions are given the most weight, which is especially important when previous instructions may no longer reflect their current wishes or understanding.

Conclusion

When an attorney is entrusted with decision-making on behalf of a donor who lacks capacity, their primary duty is to respect the wishes of the donor.

Please note that the information provided in this blog post is for general informational purposes only and is not intended as legal advice. Reading this post does not create an attorney-client relationship, and the information shared here should not be relied upon as a substitute for professional legal counsel. If you require personalized legal advice regarding estate planning or any related matters, we encourage you to schedule a consultation with Ross Estate Law to discuss your unique circumstances.