Someone you know appears to be losing autonomy and having difficulty living on their own. Who is allowed to make housing decisions for them?
Choosing for themselves as long as they are able
Adults normally choose for themselves where they wish to live. They also make decisions regarding health care as long as they understand all the implications. This is known as giving their “free and enlightened consent”.
Courts consider that housing is a form of care, like health care. Therefore, the same rules apply to housing decisions and healthcare decisions.
If a person is capable of making their own decisions regarding housing, their choice must be respected, even if a doctor or a family member believes that a different housing option would be better.
To learn more, please consult our article Consent to Medical Care and the Right to Refuse Care.
An incapacitated person may still be able to make housing decisions
Even if a person is declared incapacitated for some things, they may still be able to make decisions regarding care and housing.
Thus, even if they are declared incapacitated by a court (as part of an application for protective supervision — that is, tutorship or curatorship — or the homologation of a protection mandate), a person may still make their own decisions regarding care, including housing.
To learn more, please consult our article Adults Who Can’t Make Medical Decisions on Their Own.
Criteria to evaluate if a person is incapacitated
An illness or a loss of cognitive abilities may rob a person of the ability to understand what is happening to them.
In this situation, a doctor must evaluate if the person understands the information regarding their situation, as well as the proposed care or housing. More specifically, the doctor must assess the following:
- Does the person understand the nature of the illness or the physical or cognitive limitations that have given rise to the proposed housing option?
- Does the person understand the reason and nature of the proposed option (for example, being housed in a CHSLD)?
- Does the person understand the risks and advantages of the proposed option?
- Does the person understand the risks involved in remaining in their home or in another type of housing that no longer suits their needs?
- Has the person’s capacity to understand been affected by their illness or other limitations?
In case of incapacity: Who can make decisions?
When a doctor concludes that a person cannot provide valid consent to care, including housing, another person can make the required decisions. This is called “substituted consent”.
Who provides this consent depends on the circumstances. The following persons (in this order) can provide substituted consent:
- the person’s mandatary, if the person has a protection mandate and it is in the process of — or has already been — homologated
- the person’s legal representative (tutor or curator), if protective supervision has been authorized
- the person’s married or civil-union spouse or common-law partner
- a close relative of the person
- someone concerned for the person, such as a close friend
Decisions must always be in the person’s best interests
Whatever the circumstances, the decision must always be made in the person’s best interests. The person’s wishes, whether spoken or set out in a document (such as a protection mandate), must also be taken into account.
Refusal by a legal representative or inability to make a decision
If a legal representative is unable or — contrary to the person’s best interests — refuses a proposed housing option, a court will have to decide. It’s often a healthcare establishment that takes such matters before the court.
Refusal of care or housing by a person unable to provide consent
If a person is unable to provide valid consent regarding care or housing and absolutely refuses a housing option required by their state of health, a court will have to decide. The judge will ask for the person’s opinion and the opinions of the person’s loved ones. It’s often a healthcare establishment that takes such matters before the court.
To learn more about the different housing options, please see our article Housing Options for Seniors Leaving Their Home.