Legal Capacity, Decision-making and Guardianship

Project Overview

The law of legal capacity, decision-making and guardianship governs how decisions related to property, treatment and personal care are made in situations where individuals’ decision-making abilities are in some way impaired, but decisions must nonetheless be made. The Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA) create a complex framework through which decisions are made in such cases by substitutes, appointed in a variety of ways. These substitutes are most often family members, such as the parents, adult children or siblings of the person who requires assistance with decision-making. These laws have a profound impact on the wellbeing of the individuals who fall within their scope, addressing as they must both the protection of the autonomy of the affected individuals and the risks of abuse and exploitation of individuals who may be vulnerable. 

During the Law Commission of Ontario’s (LCO) two projects on the law as it affects persons with disabilities and the law as it affects older adults, issues about capacity and decision-making were identified as a central priority for reconsideration and reform by people in both communities, reflecting considerable concern about how the law was operating in practice, and its impact on the autonomy, security, dignity and inclusion of older adults and persons with disabilities. As well, since the law reforms of the 1990s which resulted in the current statutory framework, there have been significant demographic, social and attitudinal changes, as well as important developments on the international stage. In recent years, many jurisdictions in Canada and abroad have re-examined their laws in this area.

The LCO has therefore undertaken a project to examine and recommend reforms to Ontario’s legal capacity, decision-making and guardianship laws related to property, personal care and treatment decisions. In doing so, the LCO will apply the principles and considerations identified in its Framework for the Law as It Affects Older Adults and Framework for the Law as it Affects Persons with Disabilities.


Key Issues

The LCO has identified six key areas of focus for this project:

  1. “Legal capacity”: Current law is based on the concept of “legal capacity”: where individuals have the ability to “understand and appreciate” the information relevant to a decision, they can make that decision independently; where they do not, they may require assistance from a substitute decision-maker. This concept is fundamental to this area of the law, and the project will consider how the standard for legal capacity should be defined and assessed.
  2. Alternatives to substitute decision-making: As noted above, currently, where individuals are found to lack legal capacity to make a particular type of decision, those decisions are made by “substitute decision-makers”. The project will consider whether other approaches, such as co-decision-making or supported-decision-making should be formally included in legislation, and if so, what approaches should be adopted, and how they should be structured in the legislation.
  3. Processes for appointment and termination of substitute decision-makers: The project will consider whether the processes through which substitute decision-makers (or potentially supporters or co-decision-makers) are appointed or terminated can be made more efficient, accessible, transparent or accountable.
  4. Roles and responsibilities of those acting for persons who require assistance with decision-making: The project will re-examine the roles and responsibilities of those who act for those who require assistance with decision-making, such as guardians and those acting under powers of attorney, as well as the range of individuals or organizations who should be able to take on these roles and responsibilities, and the education and supports available to those performing these important roles.
  5. Addressing abuse: The project will consider  improvements in law, policy and practice to prevent, identify and address abuse or inappropriate activity by substitute decision-makers, or potentially supporters or co-decision-makers (however appointed), as well as misuse of the law by third-party service providers.
  6. Dispute resolution and rights enforcement: The project will examine potential improvements to dispute resolution and rights enforcement for this area of the law.

In analyzing and developing recommendations on these issues, the LCO will take into account the diversity of experiences and perspectives among those affected by this area of the law, including differences related to age, type of disability, culture, language and other aspects of identity.


What We Have Done So Far

  • The LCO has formed a project Advisory Group that includes representatives from government, adjudicative bodies, the legal community, service providers, academics and experts, and a wide range of community and advocacy organizations.
  • In 2013, the LCO conducted extensive preliminary consultations in order to identify the scope of the project, including interviews with approximately 70 individuals from a diversity of experiences and perspectives.
  • As well as conducting considerable internal research, the LCO commissioned research papers from experts in the field on issues related to this project.  Four of these expert papers have now been publicly released and are available on the LCO’s website.
  • We released a Discussion Paper and Summary of Issues for Consultation in June 2014, which launched the public consultation phase of this project. The deadline for feedback on the Discussion paper was October 17, 2014.
  • In June 2014, we released two questionnaires; one for persons directly affected by this area of the law and one for their families, friends, supporters and substitute decision-makers. Prior to the final submission date of December 31, 2014, we received approximately 212 completed questionnaires.
  • Beginning in August 2014, we held approximately 30 focus groups across Ontario with a wide variety of affected individuals, professionals and organizations, as well as carrying out  a number of in-depth interviews. and met with stakeholders from various interest groups.
  • On October 30, 2014 we held an all-day Consultation Forum which brought together academics, government ministries and agencies, services providers from a variety of sectors, members of the legal community, as well as representatives of community, advocacy and self-advocacy organizations. The Forum deepened the understanding of the issues in this project, promoted understanding among stakeholders of the varying perspectives on the issues, and identified areas where there are potential common interests, as well as areas where the law must take into account genuine differences in needs and contexts.


Next Steps

In 2015, the LCO will release an Interim Report with draft analysis and recommendations. Following an opportunity for public response, the LCO will develop and release a Final Report on this project.


Project Documents

Discussion Paper and Summary of Issues for Consultation - May 2014

Call for Papers - April 2013

Commissioned Papers

Project Scope - April 2013



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