A. INTRODUCTION AND BACKGROUND
1. The Importance of Powers of Attorney
One of the most important reforms included in the Substitute Decisions Act, 1992 (SDA) was the introduction of powers of attorney (POA). These instruments allow individuals to appoint one or more persons to make decisions for them, including during the legal incapacity of the grantor.
This created a process for personally appointing substitute decision-makers (SDM) in a way that was highly flexible and accessible. The POA was a considerable advancement for the autonomy of Ontarians, allowing them to choose for themselves who would make decisions for them if necessary, and to create tailored instructions or restrictions for those decision-makers.
Since these are personal documents, often self-created, there is little data on their use. However, there is no doubt that they are widespread. POAs are certainly far more widely used than guardianships, and are now common planning tools, often prepared in conjunction with wills. Because they provide appointees with extensive powers over the life of the grantors, they have significant implications for autonomy, security and dignity. And because they potentially affect so many areas of life, including finances, shelter decisions and health care, they affect the daily practices of a very wide array professionals and institutions.
Ontario’s legislation regarding POAs aims to make these tools widely accessible. As a result, there are relatively few practical or procedural barriers to their creation, as compared with other jurisdictions. The resultant risk is that those creating POAs may not fully understand the potential implications of doing so, and may put themselves at risk of abuse, neglect or exploitation by their attorneys. In practice, individuals may choose an attorney for reasons that have very little to do with who would best exercise that role, and more to do with family dynamics. Attorneys, particularly family members, may accept the role out of a sense of duty, without any sense of the extent or nature of the obligations that it entails.
As well, as private appointments, these powerful documents are currently amenable to very little scrutiny, so that abuse or misuse may be difficult to detect. Further, the very impairments in memory, ability to receive or assess information, or to evaluate the intentions of others that are reasons to activate substitute decision-making arrangements also make it harder for those individuals to monitor the activities of the persons acting under a personal appointment or to identify or seek help regarding inappropriate or abusive behaviour.
This Chapter focuses on the creation of powers of attorney and the responsibilities of those appointed, with a view to addressing these concerns. Although the proposed support authorizations are not a form of substitute decision-making, they are also personal appointments and pose risks that are in some ways similar. Therefore, some elements of the discussion in this Chapter are also applicable to these arrangements, should the government decide to add such arrangements to the legislation. These elements are discussed, albeit briefly, in Chapter 4.I.3.
- Chapter 7, which addresses rights enforcement and dispute resolution, discusses the available mechanisms and remedies where abuse or misuse arises: this Chapter focuses on the prevention and identification of such issues.
2. Distinguishing Abuse and Misuse
While definitions of abuse, elder abuse and abuse of persons with disabilities continue to be subjects of debate, it is clear that these are large issues with multiple dimensions and many aspects that fall beyond the scope of this project. In particular, this project is not intended to deal with abuse of persons whose decision-making abilities are not impaired and whose legal capacity is not at issue. Broader issues related to abuse of legally capable older adults were frequently raised during the consultations. While these form part of the context of the issues under examination in this project, the LCO does not intend to make recommendations on these more general issues and believes that it is important to maintain a distinction between the situations of legally capable and incapable persons with respect to abuse.
It is useful to distinguish abuse and misuse of powers of attorney. Although abuse and misuse may overlap and both may have significant negative consequences for those affected, they differ in their motives and in whether they are inadvertent or intentional, and therefore in strategies for prevention, identification and redress. For example, the provision of information and education is likely to be important in addressing misuse of statutory decision-making powers; it is likely to have less of an impact in shaping the behaviour of deliberate abusers.
Abuse carried out through statutory powers is just one aspect of the broader problem of abuse of older persons and persons with disabilities. Abuse may include physical, sexual, psychological or financial abuse, as well as neglect.248 Abuse may be perpetrated by institutions or by individuals – as the Vanguard Project notes, by “anyone who may be in a position of intimacy with or power over the vulnerable adult”. It generally includes an element of violation of trust and dependency.
Misuse of statutory decision-making powers is a more pervasive problem. A well- intentioned individual may be unaware of or misunderstand their role and obligations under an appointment, or may not have the skills to fulfil it. As a result, he or she may, for example, use a POA for purposes beyond those intended, fail to carry out important obligations such as consulting the person or keeping accounts, or inappropriately apply a paternalistic or best interests approach to decision-making where the legislation indicates another approach is required. As a result, the clear intent of the legislation may be subverted, and the autonomy, dignity and participation of the affected individual may be undermined.
B. CURRENT ONTARIO LAW
Current Ontario law includes a number of provisions intended as safeguards against abuse or misuse of the powers granted to SDMs under a POA.
Execution requirements: The SDA includes a number of requirements for the creation of a POA that are intended to ensure that those creating POAs understand the implications, and are not coerced into creating these documents. These include the requirements for two independent witnesses to the creation of the POA, and for a statement of intent in creating a continuing POA for property, among others.
Record–keeping requirements: All SDMs under the SDA are required to keep accounts of their activities on behalf of the person they are appointed to assist.
Procedural duties: The SDA includes a number of requirements that increase transparency and accountability for SDMs, including duties to explain their role to the person, foster supportive contact with family and friends, and to consult from time to time with family and friends in the discharge of their responsibilities.
Standard of care: SDMs for property are held to a fiduciary standard, while SDMs for personal care are required to act diligently and in good faith.
Clear requirements for decision–making: The clear requirements as to the principles and considerations to be taken into account in the discharge of the SDM’s role simplify determinations of whether the SDM is acting to benefit the person rather than his or herself.
C. AREAS OF CONCERN
Powers of attorney are powerful legal tools that advance autonomy rights in important ways. It is also true, however, that abuse and misuse of legal capacity and decision- making laws through POAs was a dominating concern at all stages of this project.
Concerns were expressed by legal professionals, families, health practitioners, advocates and community organizations, long-term care providers, financial institutions and other service providers – that is, across the full range of those consulted.
Misuse and Abuse of Powers of Attorney: Considering the Limited Evidence
The Challenge of Data Collection
We don’t know how many POAs exist:
- POAs are privately created, including through commercial “kits” that are widely available in stores and through forms made available through Ontario’s Ministry of the Attorney General.
- As there is no central repository for POAs, we can’t know how many have been creat
- Once a POA has been created, it may be many years until it comes into effect, or it may never come into effect at a The number of POAs in existence does not equal the number in use.
We don’t know how frequently POAs are misused or abused:
- While anecdotal reports of abuse of POAs, and particularly POAs for property, are widespread, it appears to be relatively rare for individuals to seek redress through legal processes, for a variety of reason
Some Data to Consider:
- A pioneering national survey on elder abuse indicated that 4 per cent of the approximately 2,000 respondents age 65 and older had experienced some form of abuse, with financial abuse being the most common type of abuse, suffered by 5 per cent of the sample. The sample included only older persons living in private dwellings and not those living in institutional settings. (Elizabeth Podnieks,“National Survey on Abuse of the Elderly in Canada” (1993) Journal of Elder Abuse and Neglect 4)
- A 1998 British Columbia study that focussed exclusively on financial abuse found a rate of eight per cent of older adults indicating that they had experienced financial abu The two most common forms of financial abuse in this study were concerted coercion, harassment and misrepresentation, followed by abuse via power of attorney. (Charmaine Spencer, Diminishing Returns: An Examination
of Financial Abuse of Older Adults in British Columbia (Gerontology Research Centre, Simon Fraser University: 1998))
- A 1999 Manitoba study on financial abuse of incapable adults under an order of supervision by the PGT found a rate of 5 per cent suspected financial abuse among subjects over age 60. The most common suspected abuser was an adult child of the subject. (John B. Bond et al, “The Financial Abuse of Mentally Incompetent Older Adults: A Canadian Study” (1999) 11:4 Journal of Elder Abuse and Neglect 23)
- Younger persons with disabilities have in general a higher risk of violence and victimization that is exacerbated for those who are living in institutional settings, have severe disabilities or have “mental disorders”. Persons with disabilities are particularly likely to be victimized by someone they know, whether it be family, friends, neighbours or care providers. Statistics Canada, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems by Samuel Perreault (Ottawa, Canadian Centre for Justice Statistics: 2009)
The general perception is that this is a significant and very troubling issue, and that demographics and economics indicate that it is only likely to grow in extent.
I live now in a full time practice where I only see those [POAs] that go wrong and I’m always mindful of the fact that I hope to think most of them go right, so that we’ve got to be careful before we cast a wide net that affects 100% of the situations. I’m not going to be blind to the fact that there is an ever growing number of situations of terrible abuse, talking about financial abuse ….Having said that, with an aging population, with what appears to be great inroads made in medical science to keep us alive longer but not necessarily keep our minds functional, we become more susceptible as we grow older and more vulnerable, and so there’s a lot of that grey area.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2014
The LCO received a number of very lengthy submissions from family members who felt that their loved ones had been mistreated through POAs and expressing frustration with the mechanisms for redress currently available. Service providers in particular often struggle with these issues. In many cases, abuse and misuse of powers only comes to light through interactions with service providers, for example when a long-term care provider notices that a resident cannot meet expenses, or a family member presses a financial institution to undertake what it believes to be an improper course of action. These individuals and institutions face challenging ethical and practical issues in addressing concerns about abuse.
It is important to keep in mind that the vast majority of appointees under POAs will be family members or close friends. These are the individuals who know the affected persons most intimately, and who might be expected to best understand their values and hopes, to have their well-being at heart, and to have the requisite dedication and commitment to carry out the often extensive responsibilities associated with this role. These are also the persons with whom the individual who lacks or who is preparing for the possibility of lacking legal capacity is likely to have multi-layered ongoing ties of interdependence. This area of the law is therefore almost always implemented within the complex dynamics of family relationships.
Many consultees pointed out that in most cases these family members are acting not for gain but out of love and duty. Most are not only carrying out this very significant responsibility as SDMs, but also themselves providing substantial care to their loved one, as well as attempting to meet other family or employment obligations. The task, while for the most part willingly accepted, is a heavy one. These individuals emphasized that they are already navigating multiple burdensome bureaucracies, filling out reams of paperwork, and making considerable personal sacrifices. In their view, it is unreasonable to expect more in this vein from them: they are at the limit of what they can manage. Many family members, like the one quoted below, expressed a desire for oversight and monitoring processes that would be meaningful in identifying and addressing abuse, but not burdensome on families doing the best that they can, as well as for an accessible complaints mechanism.
So that [any oversight processes] it’s not hard, it’s not so onerous I won’t participate in the process, but it might catch… because if you’re going to allow someone to go into a life-threatening situation, you’re probably taking them into their finances, too, right? And have it so that it’s a complaint base, too, so that if my neighbour thinks I’m taking advantage of [my adult child] or the organisations think I’m taking advantage of [my adult child], it could be reported by anybody, just like with the CAS. Anybody can make a report and there will be an investigation.
Focus Group, Family Members of Persons with Intellectual Disabilities, October 16, 2014
A few family members also expressed the feeling that “the government” should not be intruding into their personal family affairs, and that by and large families should be trusted to care responsibly for their members.
[I]t doesn’t make any sense for those of us, the majority who are taking very good care of their family, whether we have money or don’t have money. There are still lots of people without any that are taking very good care of their family members, and you’re always under threat of interference. … if you tried to come and walk in my door, you wouldn’t even get past the door, period, end of… I don’t care who you are. This is my family, this is my home, and nobody asked you to come here, and I didn’t say that you could, you know? You know, nobody sends anybody to see how I deal with my other children, and sometimes they need help making decisions, believe it or not, you know, like in the real world.
Focus Group, Family Members of Persons with Intellectual Disabilities, October 16, 2014
On the other hand, family members worry, often intensely, about the risks that their loved ones will face if they outlive them. They see their loved ones as vulnerable, and the current system as offering inadequate protections. One aging parent of an adult child with a disability commented that if, after her death, her family members failed to properly carry out their responsibilities to her loved one, her only recourse would be that, “I’ll haunt you every night”.
The issue of misuse of SDM powers was closely tied, in the view of consultees, with the widespread ignorance of the requirements of the legislation. Since persons creating POAs often have only a limited understanding of the implications of these documents, they may not give sufficient thought to whom they should appoint, or to whether they should include restrictions or further instructions in the document.
POAs may be selected, not based on who will best carry out the role, but to avoid unpleasantness or family disagreements. As a result, grantors may appoint individuals who do not have the skills or the temperament to carry out the role appropriately, or jointly appoint family members whose past history indicates a complete inability to work together.
In the same vein, most SDMs have only a limited understanding of their roles. There are no mechanisms for ensuring that SDMs understand their task: while some will take the initiative to research their responsibilities, many will not. As a result, it is not surprising that these roles are often imperfectly carried out.
Lack of institutional or professional understanding of POAs may add to these challenges. For example, long-term care homes or retirement homes may strongly encourage new residents to create these, without understanding or communicating the risks and requirements associated with these powerful documents. In a recent case where a POA for property created under such conditions led to significant financial abuse, Deputy Judge Michael Bay commented on a long-term care home’s practice of “strongly encouraging” POAs among new residents as follows:
The evidence indicates that an official of the centre suggested that the family simply print a power of attorney form off the Internet. There is no indication that any sort of independent legal advice was recommended for the grantor. Nor is there any indication that new residents receive guidance as to the pros and cons of granting a power of attorney for property, who they might chose and who they might wish to avoid, how to build in safeguards or limitations or otherwise customize the document so that it serves their needs and wishes.
Most importantly, it does not appear that the incoming resident was told how powerful and dangerous a power of attorney can be and that she was free not to grant one if she wished ….To put pressure on elderly vulnerable persons to do so without due contemplation; for that is what inevitably occurs when such a ‘strong suggestion’ is made by a person in authority at time of admission to a care facility and without independent professional advice; is nothing short of appalling. To then divert all of the resident’s mail to a third party without regard to the resident’s capacity and without their permission is to invite and facilitate the sort of financial victimization that occurred in this case.
Another concern is that there are no proactive monitoring mechanisms. While both POAs and guardians are required to keep records, it will be rare for either a guardian or a POA to be required to pass their accounts. Where abuse is detected, it is often because a service provider has encountered something problematic, whether it is a homecare worker witnessing an inappropriate interaction, a long-term care home provider finding that a resident can no longer pay his or her bill because the finances have been drained, or a financial service institution noticing a suspicious pattern of transactions. Often, by the time abuse comes to light, it has been ongoing for some time. Where the abuse is financial, it is very difficult to recover any funds: the damage is done. Of course, the impact of any type of abuse on the self-worth, happiness and overall wellbeing of the victim is a long-lasting one.
Balanced against concerns regarding abuse and misuse was the perceived importance of maintaining the accessibility and ease of use of POAs. Many consultees pointed to the importance of powers of POAs as tools for planning ahead and retaining some control over one’s future: in their view, people ought to be encouraged, not discouraged from creating these instruments. Requirements that make the creation of a valid POA too difficult or too costly would, in this view, defeat the fundamental goals of these instruments.
[T]he beauty of the power of attorney arrangement is its theoretical simplicity and the ease with which a person can make plans for their own incapacity and the ease with which somebody doing so can choose who it is they want to have control over their affairs.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2014
Balancing flexibility and accountability is an important challenge for law reform in this area.
D. APPLYING THE FRAMEWORKS
Concerns related to abuse and misuse clearly invoke the LCO Framework principles of security and safety, described in Chapter III. Importantly, the principles of security and of safety identified in the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities are linked to freedom from abuse and exploitation; the Framework for the Law as It Affects Older Adults also linked it to the ability to access basic supports such as health, legal and social services.252
The importance of safeguards against abuse of persons who fall within legal capacity and decision-making law is also explicitly identified in Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), which states that
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
Personal appointments, such as POAs and support authorizations, are expressions of and ways of protecting and promoting autonomy – unless of course they are created under conditions of ignorance, duress or manipulation. Powers of attorney (and potentially, support authorizations), as relatively unrestricted instruments for individuals to make choices about the conduct of decision-making in situations of actual or potential lack of legal capacity, can enhance autonomy for grantors.
However, if they are used without proper knowledge or care, these instruments can increase risks of abuse. Abuse and misuse clearly can undermine autonomy and independence, and certainly it is generally in the interests of abusers to exert maximum control over the person that they are abusing or exploiting. The institution of safeguards and remedies can protect and restore the autonomy and independence of a person who is at risk of or who is experiencing abuse.
Therefore, safeguards and interventions with respect to abuse and misuse must be weighed against the value of these instruments in promoting autonomy and independence. Safeguards and remedies for abuse and misuse can restrict the autonomy of affected individuals, by diminishing access to these instruments, or reducing the range of choices that individuals can exercise through them. Additional safeguards must therefore be designed in a way that keeps in mind the potential “cost” of each safeguard to individual autonomy.
One means of enhancing security in the context of personal appointments is to increase the degree to which they are implemented in the context of the grantor’s broader social networks – that is, to engage the community of interested individuals who may surround the grantor in monitoring and potentially intervening in cases of abuse or misuse. These social networks may not be as powerful or knowledgeable as institutions, but they may be seen as less intrusive on privacy and self-determination because these relationships have been chosen by the individual.
In addressing issues of abuse and misuse, there must be a nuanced understanding of the principles of autonomy and independence, and of safety/security. While the principles must be balanced, they must also be understood as closely connected: one cannot be achieved without the other.
E. THE LCO’S APPROACH TO REFORM
The lack of a meaningful evidentiary base regarding the use and misuse of substitute decision-making powers adds considerable difficulty to the task of law reform in this area. This is particularly true for POAs. Neither the LCO nor anyone else knows how many POAs are in operation in the province. Nor is there much in the way of quantitative evidence regarding the extent of the use, abuse or misuse of POAs. As a result, the LCO’s analysis necessarily relies heavily on the perceptions and experiences of the persons and institutions consulted during this project.
The LCO’s consultations on these issues emphasized two messages: 1) the value of POAs and the corresponding importance that they continue to be accessible to Ontarians across all income levels; and 2) the widespread perception that these
instruments, and potentially to a somewhat lesser degree guardianships, are poorly understood, are easily misused, and are in fact misused (and outright abused) with considerable frequency.
When the current legislative scheme was in development, considerable attention was paid to the balance between accessibility and accountability in the creation of personal appointments and guardianships. The SDA includes a number of important safeguards, outlined above, but the overall balance has been towards accessibility and ease of use.
Now that the legislation has been in place for some two decades, the experience of the legislation, together with shifts in technology and demographic trends, suggests to the LCO that while accessibility of these instruments remains as important as ever, some adjustments must be made to address issues of misuse and abuse.
There appear to be three key issues underlying concerns about misuse of POAs:
- the widespread lack of knowledge or understanding of the responsibilities associated with these instruments on the part of those who are appointed under them;
- a lack of transparency about the contents or existence of these documents, making it difficult to ensure that they are being implemented as intended; and
- a lack of meaningful mechanisms for accountability when these documents are misused.
The LCO has adopted the following four goals for reforms related to abuse and misuse of decision-making powers:
- maintaining reasonably straightforward and low-cost access to planning tools;
- promoting better understanding of these personal and external appointments among both grantors and those exercising powers:
- as resources are limited at all levels, giving preference to reforms that are not unduly complex, burdensome or costly either for government or for individuals and families; and
- making it easier for those who are already involved with and have concern for populations that are particularly vulnerable to raise concern
These issues are closely connected to concerns related to dispute resolution and rights enforcement, which are addressed in Chapter 7.
Given the current shortfalls in information about the use and misuse of POAs, the reforms proposed below would be enhanced by an accompanying strategy for researching and monitoring abuse, and evaluating the impact of reform.
1. Promoting Understanding of Duties and Responsibilities
The need for education and information regarding powers of attorney was raised consistently during the LCO’s consultations. The discussion for the purposes of this Chapter focusses on means of providing standard basic information about statutory responsibilities either at the time of creation of a POA or at the time it is activated. The LCO received a number of suggestions for improving understanding of roles and responsibilities under POAs.
- General concerns regarding education and information are addressed comprehensively in Chapter 10.
At present, there are many high quality educational and information resources regarding POAs in Ontario. The Ministry of the Attorney General provides helpful online information on POAs, guardianships and the role of the Public Guardian and Trustee (PGT), as well as a series of paper handouts,253 and there is a considerable amount of valuable information contained in the government Power of Attorney Kit. Organizations such as ARCH Disability Law Centre, Elder Abuse Ontario, the Advocacy Centre for the Elderly, and Community Legal Education Ontario all provide information to a range of audiences and in a variety of formats. The difficulty, however, is that these resources rely on persons creating or acting under a POA to seek them out, and these individuals may not know where or how to find this information, or even that they need to seek out information.
Requiring legal counsel for the creation of a valid power of attorney
As was noted above, Ontario currently includes a number of execution requirements intended to safeguard against abuse, including a requirement for two witnesses. These witnesses must be over 18 years of age and may not be under guardianship, and they may not include the attorney named in the document, the attorney’s spouse or partner, the grantor’s spouse or partner, or a child of the grantor.254 Some jurisdictions have much more stringent requirements related to witnessing: Manitoba restricts witnesses to a list of certain professionals,255 and Saskatchewan requires that witnesses each sign a witness certificate attesting to their opinion that the grantor could understand the nature and effect of the enduring power of attorney at the time that it was signed.256
Canadian jurisdictions generally do not require legal advice to create a valid POA. The exception is Yukon, which requires that enduring POAs be accompanied by a certificate of legal advice.257 Saskatchewan offers the option of either having two witnesses for the POA, or having a lawyer provide legal advice and a certificate of witness.258
There was some support during the LCO’s focus groups for requiring a certificate of legal advice either for all POAs or for POAs for property management only – notably, one of the two 2014 focus groups with trusts and estates lawyers strongly endorsed such a requirement, as a method of ensuring validity of POAs and understanding of their ramifications among donors, and thus as a measure to prevent abuse and misuse.
However, many others, including a second group of trusts and estates lawyers, were very hesitant about such an approach. The additional cost and trouble of securing legal advice would, in this view, make POAs inaccessible for lower income individuals, and would act as a deterrent even for those who could afford the legal fees.
The LCO believes that such a requirement would be unduly burdensome and would in fact deter some significant number of individuals from completing a POA, thereby pushing individuals either into arrangements that are very difficult to monitor and do not carry the same legal obligations (such as sharing PIN numbers for bank accounts or the creation of joint accounts), or into the much more restrictive guardianship system. Accordingly, the LCO does not recommend a requirement for legal advice for the creation of a personal appointment.
It is the view of the LCO that improving access to information can improve the quality of personal appointments without creating the kind of undue barriers associated with a requirement for legal advice.
- The LCO has proposed a number of recommendations in Chapter 10 aimed at increasing the reach, accessibility and reliability of the information and education available to individuals regarding legal capacity and decision-making:
A mandatory standard form for powers of attorney
The Ministry of the Attorney General has created a standard form for creation of powers of attorney, which includes valuable and extensive information about the nature of these documents, the attendant responsibilities, and some practical considerations.
This form is not mandatory, and it is difficult to know how widely it is used.
There was discussion in some focus groups about making this form or some version of it mandatory. Some participants believed that this would ensure that all individuals creating a POA would at minimum have access to a basic level of correct information. This view has been adopted in a number of jurisdictions, including the Australian state of Victoria, and England and Wales. Other participants suggested that this approach would create a risk that some significant number of individuals would inadvertently create invalid POAs, because they were unaware of the requirement to use the standard form.
The LCO does not recommend the introduction of a mandatory form for powers of attorney. The use of a standard form could reduce the flexibility of these instruments, one of their major benefits. Significant public education resources would also be required for the transition to a mandatory form.
Statements of commitment
One means of promoting a clear understanding of the responsibilities of persons acting under a personal appointment would be to require them to formally acknowledge these responsibilities as part of the appointment process. This acknowledgement is called a statement of commitment.
Statements of commitment have been used in other jurisdictions and were widely supported during the LCO’s public consultations.
British Columbia requires that an attorney sign an acknowledgement of the appointment prior to acting.259 The Victorian Law Reform Commission (VLRC), in its review of capacity and guardianship laws in that Australian state, recommended that legislation require all decision-makers to undertake in writing to act in accordance with their statutory responsibilities and duties.260
Kerri Joffe and Edgar-André Montigny of ARCH Disability Centre recommend the adoption of statements of commitment in Ontario, adding that they should be available for use in any legal or administrative proceedings regarding failure to comply with a particular duty or obligation.261
Support for some form of acknowledgement was also voiced during a focus group with lawyers practicing in the area.
But maybe further when the power’s actually invoked, maybe you need on the form some kind of reference to, for further information about your obligations under this appointment, go to such and such. And then you actually need a tick, you know, kind of like the… I have read and I agree, right… I mean, if the prescribed form, does it have attached to it basic educational information about the obligations and information about where you can find out more about your obligations. Powers of attorney for dummies, or, you know, create a nice little private seminar or whatever.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2015
Similarly, the Ontario Caregiver Coalition stated that,
[B]y far the majority of family caregivers act in good faith under POAs and … being able to appoint someone you trust to make decisions on your behalf must remain a simple thing to do. However, the above- mentioned changes [Statements of Commitment and Notices of Attorney Acting] could deter those who might abuse their powers, thus protecting those who become incapable and are vulnerable. These requirements would be reasonable and beneficial changes to the law. Another beneficial aspect of these requirements would be that an opportunity would be provided at this time to educate the person accepting the appointment about the responsibilities of the role.
Finally, the Mental Health Legal Committee (MHLC) commented in their submission that in the Statements, “[e]mphasis should also be placed on the autonomy enhancing aspects of the SDA”. The MHLC further stressed that these Statements of Commitments should be linked to oversight mechanisms.
The LCO agrees that Statements of Commitment would provide some means of informing SDMs about the nature of their responsibilities, that these are serious and significant obligations, and that they can be held to account for how they carry out their responsibilities. It also ensures that they clearly indicate their acceptance of these responsibilities and accountability. While such a requirement does add some burden to the process of putting a POA into effect, the LCO believes that on balance, the requirement to complete a statement of commitment upon activation of a POA is not an unduly onerous requirement in view of the potential benefit. Statements of Commitment may be effectively paired with Notices of Attorney Acting, described below.
There are three options for when Statements of Commitment (and Notices of Attorney Acting) should be completed:
- when the POA is created,
- when the appointed person begins to act, or
- when the grantor loses legal capacity.
It is important to remember that while a power of attorney for personal care only comes into effect when the grantor loses legal capacity, a continuing power of attorney for property may, at the option of the grantor, come into effect immediately and endure into the grantor’s incapacity, or “spring” upon a finding of incapacity.
The first option has been enacted in British Columbia, where section 17 of the Powers of Attorney Act requires the person appointed to sign the document in the presence of two witnesses before “exercising the authority” granted in the document: that is, the ability to act hinges on this signing. The statute further clarifies that the authority of other attorneys is not affected by the failure to sign of one of the attorneys.262 While this has the benefit of simplicity, it reduces the educational opportunity, as many years may pass between the creation of a POA and any need for its use. There are also practical challenges in assembling all of the necessary parties at the time of creation of the POA, as the Nova Scotia Law Reform Commission has highlighted in its review of powers of attorney.263
The Western Canada Law Reform Agencies Report on enduring powers of attorney adopted the second option. It recommended that an acknowledgement of responsibilities be required at the time that the grantor becomes incapacitated, as part of the Notice of Attorney Acting.264 To require the completion of a Statement of Commitment or Notice of Attorney Acting upon the incapacity of the grantor would essentially turn all continuing powers of attorney into “springing” POAs. This would not only reduce the flexibility of these documents, a feature much appreciated by stakeholders, but would also exacerbate the current difficulties surrounding assessments of capacity, which were highlighted in Chapter 5.
The third option is to require the completion of these documents upon the activation of a POA. Trusts and estates lawyers have pointed out that this approach does not differentiate the agency and fiduciary aspects of the POA role. As noted above, this double role is inherent in the nature of these documents. However, it would avoid forcing assessments of capacity, and would be more closely in line with the educative and transparency purposes of these reforms than requiring them at the time of creation. The LCO therefore believes that it would be most effective to require the signature of a Statement of Commitment at the time that an attorney begins to use the powers granted by the document.
Another concern raised was with respect to fluctuating capacity. In many cases, a person may have lost legal capacity with respect to some, but not all matters within the scope of a POA. As well, it is not uncommon for individuals to have capacity at some times and not at others. The LCO proposes that the Statement (and the Notices of Attorney Acting) be required only at the first instance and that the attorney be clearly discharged in the legislation from any requirement to undertake repeat these steps should, for example, a POA for personal care be activated by loss of legal capacity, then capacity be regained and lost again.265 That is, the Statement and Notices would only be required upon a single occasion.
Finally, concerns were raised that failure to complete the Statement of Commitment (or Notices of Attorney Acting) might result in inadvertent invalidation of actions taken under a POA, to the disadvantage of the grantor. It should be noted that the SDA already contains a comparatively liberal saving provisions for non-compliance with execution requirements in sections 10(4) and 48(4), stating that “the court may, on any person’s application, declare the [power of attorney for property or personal care] to be effective if the court is satisfied that it is in the grantor’s interests to do so.” The LCO suggests that this be extended to include the requirements for Statements of Commitment and Notices of Attorney Acting.
THE LCO RECOMMENDS:
25: The Government of Ontario
a) develop a standard form, mandatory Statement of Commitment, to be signed by persons accepting an appointment as an attorney under the Substitute Decisions Act, 1992, prior to acting for the ﬁrst time under such an appointmen The Statement of Commitment would specify:
i.the statutory responsibilities of the appointee,
ii. the consequences of failure to fulﬁl these responsibilities, and
iii. acceptance by the appointee of these responsibilities and the accompanying consequences.
b) where appropriate, include this acknowledgement as part of the Notice of Attorney Acting described in Recommendation 26.
2. Increasing Transparency
One of the repeated concerns voiced about POAs is the lack of transparency associated with these documents. It may be difficult to determine whether a POA exists, whether it is valid, and whether it should be in operation. This lack of transparency may be connected to risks of abuse.
Several service providers pointed out the difficulties of ascertaining who is entitled to act on behalf of a person whose legal capacity is lacking, whether because of difficulties in locating POAs, or in determining their validity. They often connected this to shortfalls in monitoring of SDMs, because without this basic information, it is very difficult to know how many POAs are in existence and are active, who they are for, and who is acting under them.
The LCO heard troubling stories from some family members who had suspected that their loved one was being abused, exploited or neglected by a person claiming to hold a POA, but who had been unable to force that person to provide a copy of the POA to verify its contents without resort to expensive legal steps. They felt that it should be much easier to verify whether a POA actually existed and the scope of its authority, without the necessity to take legal action.
During the consultations, there was considerable discussion of some form of POA registry from a broad range of participants, including family members, service providers, legal professionals and persons directly affected. Many consultees felt that a registry would advance transparency and accountability, and reduce risks of abuse.
The Ontario Brain Injury Association commented in their submission that,
POAs who are chosen by the individual themselves can create barriers for stakeholders trying to provide support. It can be difficult to ascertain if there is a POA and, depending on who they are, can create challenges when delivering safe, confidential services. A registry system would be something to explore for the purposes of the service providers supporting the individual and also serve to help mitigate potential abuse. This way a POA can register as such and provide the basic demographic information so that a service provider can ‘look up’ the client to ensure that the right person is supporting them and that as organizations they are collecting the right signatures for consent for services. By having the POA name and information registered formally this could potentially act as a means to reduce the risk of abuse.
A properly implemented, mandatory registry is likely to be a costly endeavour, which raises the issue of how it would be operated, maintained and resourced. Would those registering a POA (or, potentially, a support authorization) be required to pay a fee? If so, how large of a fee would be necessary, and would it reduce access to POAs for individuals of modest means? Or would family members and service providers be required to pay to access information in the registry? As well, the additional administrative requirements associated with registration would likely be seen as a burden – and additional disincentive – by grantors and attorneys,
More complex yet are issues related to privacy and access to the information in the registry. A registry moves POAs, to some extent, from the private realm into the public. The benefit is that this potentially increases the amenability of these instruments to scrutiny; the downside is that the private information of the person creating the POA would also be more accessible to scrutiny. Would the effect on the privacy of the grantor affect the likelihood that POAs would be created?
Nor would a registry conclusively answer questions surrounding the validity of a POA. Who is to say that a grantor had legal capacity at the time of creation of a continuing power of attorney for property? Where there are multiple competing POAs (a surprisingly common experience, according to many service providers) which should be accepted and acted upon? A registry office does not imply the power to investigate a POA, but only to take note of its existence. Regardless of a registry, service providers will still be left with the dilemma of determining whether it is appropriate to act on a particular POA, where circumstances raise concerns.
Given these challenges and limitations, the LCO believes that some of the aims of a registry can be more flexibly and cost-effectively met through the mechanism of Notices of Attorney Acting, as described below. While this mechanism would not resolve concerns about the validity of POAs, or simplify access to personal appointments by service providers, they would increase transparency about the activation of personal appointments, and permit some individuals access to information about the content of the appointment and how it is being exercised, thereby improving accountability and transparency. The LCO therefore does not recommend the creation of a registry for POAs.
Notices of Attorney Acting
The concept of Notices of Attorney Act has been considered by several Canadian law reform agencies. These Notices are intended to bring greater transparency to POAs, by ensuring circulation of the document to a pre-determined list of interested parties.
The Western Canada Law Reform Agency Report on Enduring Powers of Attorney recommended the adoption of a statutory provision requiring the attorney under a continuing POA to serve a “Notice of Attorney Acting”. This notice would follow a determination that the grantor lacks legal capacity to manage her or his affairs and the commencement of the attorney’s exclusive responsibility to manage the grantor’s affairs. At this point, the grantor no longer has the ability to monitor the use of the POA or to rescind it. The grantor may designate by name in the POA the person or persons to receive the Notice, or may designate persons who are not to receive the notice. Where no person is named, the attorney must make reasonable efforts to provide notice to the immediate family members of the grantor. If there is no person to whom the attorney can give notice, the Notice must be provided to the appropriate public official.
This Report also recommended that the Notice include information about the duties of attorney and legal remedies for abuse or misuse of these instruments, in order to promote transparency and accountability. This is a practical suggestion.
The LCO believes that Notices of Attorney Acting can provide a reasonably low-cost and flexible means of increasing transparency and accountability for persons acting under a POA. A careful balance must be struck among the differing needs of grantors. Not everyone will want to have family members notified, whether for good reasons or bad. Automatic notification schemes risk alerting abusers or creating unnecessary conflict. Not all family members are close and not all play a positive role, and a default notification may create risks of conflict or misuse, as well as violations of privacy, that on balance outweigh the additional transparency created by default notifications.
The Nova Scotia Law Reform Commission has recommended that grantors ought to be able to explicitly opt-out from the notice requirement, because of the significant privacy issues at stake.266 Ontario’s Mental Health Legal Committee raised concerns about opt-out provisions. Opt-outs could become standard language for POAs and so could reduce the effectiveness of Notices. The MHLC, along with some others, argued that Notices should be mandatory in all cases.
The LCO proposes a balanced approach, in which certain individuals with a significant stake in the validity and the appropriate implementation must receive a Notice. These would include the grantor him or herself, any monitor named in the instrument, any person who has previously been acting as an attorney for the grantor, and, because the spouse would almost always be directly affected, the spouse of the grantor (if that person is not the attorney). Other persons to receive the Notice may be identified by the grantor.
Where a POA names one or more individuals to receive a Notice of Attorney Acting, that Notice ought to be accompanied by the Statement of Commitment recommended above.
Notices of Attorney Acting, like Statements of Commitment, raise important questions about timing. The Law Reform Commission of Nova Scotia recommended tying issuance of the notice to the initial onset of incapacity, on the basis that the law does draw a bright line between capacity and incapacity, and protects the autonomy of the donor so long as capacity exists: it is only upon a declaration of incapacity that protection interests come into play.267
In the view of the LCO, the time at which the attorney begins to exercise authority, and therefore assumes liability under a continuing POA is the appropriate point in time at which to circulate a Notice of Attorney Act. In the case of Zonni v. Zonni Estate, the grantor of a continuing power of attorney for property retained capacity until her death: while the POA was effective, the appointed attorney was never active, and the Court rejected an effort to hold the attorney liable for property transactions undertaken subsequent to the effective date of the POA. In other cases, persons acting under a power of attorney have been found responsible for all transactions undertaken once some duties have been assumed, even if the grantor continues to attend to some functions.
The considerations discussed for Statements of Commitment with respect to fluctuating capacity and to risks of good faith non-compliance with this requirement, apply also to Notices of Attorney Acting. As with Statements of Commitment, the LCO proposes that Notices be required only at the time the attorney first acts, and that the provisions for technical non-compliance in sections 10(4) and 48(4) of the SDA be extended to the completion of these documents.
THE LCO RECOMMENDS:
26: The Government of Ontario amend the Substitute Decisions Act, 1992 to require that a person exercising authority under a power of attorney be required to deliver a Notice of Attorney Acting at the time the attorney ﬁrst begins to exercise authority under the instrument. Notices would include the following characteristics:
a) the Notice must always be provided to:
i. the grantor,
ii. any monitor named in the instrument,
iii. any attorneys previously acting for the grantor, and
iv. the spouse, if any, of the grantor;
b) the grantor may specify any other individual or individuals to whom the Notice must be delivered, and the attorney must make reasonable efforts to provide the Notice to that person or persons;
c) the Notice of Attorney Acting be in a standard and mandatory form as developed by the government, and be accompanied by the Statement of Commitment.
3. Enabling Monitoring
As the brief review of Ontario law indicates, the mechanisms available for monitoring the activities of attorneys are limited, with the onus falling on grantors to carefully consider potential appointees and to exercise caution in their appointments. The mechanisms that exist for addressing abuse or misuse are largely “passive” rather than proactive; for example, while the duty to maintain accounts is important, those acting under a POA may never be required to share those accounts with anyone. As a result, it may be difficult to detect abuse when it is occurring. For this reason, there was considerable interest during the consultations in how to increase oversight or scrutiny of attorneys.
Annual Reporting Requirements
Ontario requires both guardians and attorneys (whether for property management or personal care) to keep records of their activities. The Court may, on application, order that the accounts of a guardian or attorney for property be passed, in the same manner as the passing of executors’ and administrators’ accounts. The Court may, upon the passing of accounts, take a variety of steps, including directing the PGT to bring an application for guardianship of property, ordering a capacity assessment of the grantor of a POA, or suspending or terminating the POA or guardianship.270
In some jurisdictions, guardians and in some cases attorneys for property are required to submit accounts annually.271 Joffe and Montigny advocate for a broad reporting requirement for all decision-makers:
Decision-makers’ reports should indicate what they have done to promote the autonomy and decision-making capacity of the ‘incapable’ person, and how they have encouraged the person to be involved in the community. Reports should include any efforts the decision-maker has made to involve supportive family or friends of the ‘incapable’ person in enhancing the person’s quality of life.
Decision-makers should also report any concerns expressed by the ‘incapable’ person along with an account of what steps were taken to address those concerns.
Currently, under the SDA, ‘incapable’ persons may request a passing of accounts. Instead, under the new legal capacity regime, the obligation for a decision-maker to pass accounts should be made mandatory and included in all decision-making appointments or orders, regardless of whether anyone has expressed concerns about the decision-maker’s actions or requested a passing of accounts. Decision-makers must be required to pass their accounts at regular intervals, such as annually or more often, depending on the circumstances of the ‘incapable’ person. Accounts may be submitted with reports, in order to minimize the incidences of monitoring.272
Regular reporting requirements were discussed in a number of the LCO’s focus groups. While there was some feeling that regular reporting requirements would induce SDMs to take their responsibilities more seriously and could deter some abuse, there was concern that annual reporting requirements would be too onerous for SDMs. To be meaningful and amenable to review, the formatting and precise content of accounts would have to be standardized, requiring SDMs to master the details of these requirements.
As well, for reporting requirements of this sort to be more than an administrative burden for SDMs, there would have to be some meaningful scrutiny of the accounts submitted, as well as the ability to provide some information and support to SDMs attempting to meet this requirement.
In the LCO’s view, an annual reporting requirement would raise several of the issues discussed earlier respecting a POA registry. Accordingly, the LCO believes that, given limited resources, available resources would be better deployed to the priorities of preventing misuse of powers through education and information, and of enabling more effective response to abuse through enhanced complaints mechanisms, rather than devoting extensive resources to oversight of the majority of compliant SDMs. The LCO therefore does not recommend the institution of regular reporting requirements for SDMs.
It has been suggested that Ontario’s legal capacity and decision-making systems would benefit from some form of a random audit program.
Joffe and Montigny, for example, recommend the establishment of a Monitoring and Advocacy Office with broad powers that include monitoring and overseeing of decision-makers, addressing situations in which decision-makers are abusing or misusing their powers, and dealing with complaints from persons lacking legal capacity. In their vision, this Office would receive and review reports from decision- makers, and would have the power to launch investigations or issue compliance orders in response to those reports. The Office would also manage a “Visitor” system, and would be empowered to investigate and address concerns raised by a Visitor.273Visitors would consist either of trained volunteers or professionals who provide rights advice to persons whose legal capacity is lacking or in doubt.
A number of common-law jurisdictions outside of Canada have Visitor programs of varying scope and powers. For example, under the Mental Capacity Act, 2005 (MCA), England and Wales have a system of “Court of Protection Visitors”. These Visitors, some of whom are designated “Special Visitors” with expertise in capacity-related disabilities, may be ordered by the Court of Protection to visit deputies (who are the equivalent of Ontario’s guardians), attorneys or the individuals for whom these persons are acting and to prepare reports for the Public Guardian on issues as directed.274 The MCA’s Code of Practice describes their role as follows:
The role of a Court of Protection Visitor is to provide independent advice to the court and the Public Guardian. They advise on how anyone given power under the Act should be, and is, carrying out their duties and responsibilities. There are two types of visitor: General Visitors and Special Visitors. Special visitors are registered medical practitioners with relevant expertise. The court or Public Guardian can send whichever type of visitor is most appropriate to visit and interview a person who may lack capacity. Visitors can also interview attorneys or deputies and inspect any relevant healthcare or social care records. Attorneys and deputies must co-operate with the visitors and provide them with all relevant information. If attorneys or deputies do not co-operate, the court can cancel their appointment, where it thinks that they have not acted in the person’s best interests.275
In addition to investigating abuse, Visitors can assess the general wellbeing of the individual and provide advice and support to attorneys and deputies.
The Visitor program in England and Wales has a broader function within that jurisdiction’s legal capacity and decision-making system than auditing for compliance, and indeed is closely tied to the operation of the specialized Court of Protection and its dispute resolution and rights enforcement mechanisms.
The “Community Visitors” system in the Australian state of Queensland is focussed on persons in congregate settings, such as long-term care homes and mental health facilities. This system has both oversight and complaints functions. As part of their oversight functions, they regularly visit mental health facilities and other sites (other than private homes) where individuals with diminished capacity reside or receive services276 to review and provide reports on the adequacy of services, respect for rights, provision of rights information and the accessibility of complaints procedures, among other matters.277
Visitors have a responsibility to inquire into and seek to resolve complaints, and where complaints cannot be resolved, to refer them promptly to the appropriate body for investigation or resolution or both.278 They have broad powers to “do all things necessary or convenient to be done to perform the community visitor’s functions”, including entering visitable sites without notice, requiring the production of information or documents, and meeting with consumers alone.279
The Visitor program adopted in Queensland is very broad, with implications far beyond legal capacity and decision-making. It addresses issues of both systematic and individual advocacy within a wide range of congregate settings. It responds to similar concerns and in many ways parallels the Health Care Commission proposed by the Advocacy Centre for the Elderly in a 2009 paper commissioned by the LCO as part of the project on Law as It Affects Older Adults.280 While there are many interesting aspects to Queensland’s Visitor system and to the proposed Health Care Commission, in the LCO’s view they raise issues that go beyond the scope of this current project and would require considerable additional research and consultation.
A comprehensive random auditing program would be both resource intensive and intrusive on the privacy both of families and persons directly affected, and therefore the LCO does not recommend such a program.
- The applicability and viability of a limited type of Visitor program focused on identifying least restrictive alternatives is addressed in Chapter 8, as part of the discussion of reforms to external appointment processes.
Under the British Columbia Representation Agreement Act, a person creating a representation agreement must name a monitor, unless the representative is the Public Guardian and Trustee, a spouse or a trust company or credit union, or the person has named two or more representatives who are required to act jointly.281 A monitor must make reasonable efforts to determine whether the representative is complying with the statutory requirements. The monitor is entitled to visit and speak with the represented adult and to access records and accounts. If the monitor has reason to believe that the representative is not complying with the requirements of the Act, he or she must promptly inform the Public Guardian and Trustee.282
Manitoba has similarly provided attorneys with a duty to provide an accounting either to a person named in the POA, or, where no person is so named, to account annually to the nearest relative.283 The person receiving the accounting has no duty or liability with respect to the accounting. New York State enables grantors to appoint a monitor or monitors when creating a power of attorney. These monitors have the authority to require the attorney to provide receipts and records of transactions, to request and receive relevant records from third parties, and to receive a copy of the power of attorney document.
There was considerable interest during the focus groups in the concept of a monitor, particularly in those focus groups with persons directly affected and with family members. It was felt that this could provide a relatively simple and low-cost reassurance of some oversight of the activities of individuals acting under a personal appointment, as well as an incentive to take more seriously the requirements of the legislation.
But the idea of that monitor is excellent, it’s like in your treatment plan, that one that you’ve decided, I want to be in this hospital and no other, and all this, your monitor can look, yes, he’s in that hospital, yes he’s being treated only by this doctor, that’s great, that’s been taken care of, okay, this person’s been activated, so we’re going to water the plants and we’re going to take care of the pets, that’s great, this has been done, and that really seems really valuable.
Focus Group, Individuals with Mental Health Disabilities, August 21, 2014
Feedback on the Interim Report indicated broad support for the concept of a monitor. The Advocacy Centre for the Elderly (ACE) noted that when abuse through a POA is suspected, it is often very difficult to support the allegations because of inability to obtain records; a rogue attorney may even prohibit family, friends or others from accessing the individual to prevent complaints from being investigated or pursued.
The appointment of a monitor authorized to view accounts and visit the person would, in the view of ACE, “vastly improve the situation”.
It was pointed out that many individuals do not have a large circle of trusted friends and family: it may be sufficiently difficult to find anyone to act under a POA, let alone a second person to act as a monitor. Even where a person does have family, those family may not play a positive role in the life of the grantor, and so it would be risky to automatically entitle them to access the highly personal information of the grantor, through a default such as that incorporated in Manitoba’s legislation.
Therefore, it was felt that monitors should not be mandatory for POAs. However, it was recommended that public information, including the standard POA form prepared by government, provide information about and strongly encourage grantors to designate a monitor, and that there be clear legislative requirements surrounding the role of a monitor. A participant in the focus group for persons with mental health disabilities commented that while monitors could be implemented in a way that is helpful, they also run the risk of being overly adversarial and interventionist, and therefore unhelpful, suggesting that “if you’re going to have that … put into practice, there again needs to be some ethical guidelines around that”.
The LCO heard concerns that monitors could simply be another means of perpetuating family conflict. The LCO agrees with the comments of the Nova Scotia Law Reform Commission on this point:
We acknowledge the potential for family members to cause problems for the attorney with unwanted questions, and the potential intrusion upon the donor’s privacy. In our view, however, these concerns do not outweigh the need for a stronger system of safeguards – including monitoring – around the use of EPAs, for the benefit and confidence of those who use them. The Act would not give those family members any authority over the attorney’s decisions. Whether those family members would be more inclined, or less, to cause difficulty for the attorney with a proper accounting in hand is open to question. Finally, our recommendation is that the donor who is concerned about privacy, or putting the attorney under an undue burden, should be permitted to opt out by appointing someone else to act as monitor, or waiving the duty entirely.
For monitors to be an effective option, they should have not only clear statutory duties, but also the powers necessary to be able to perform their appointed role. A monitor must have the right, for example, to access the information necessary to carry out the role and to meet with the person who has created the appointment.
However, it is important that the liability and responsibilities on monitors be calibrated to their actual abilities and influence, as they will in most cases be private citizens acting for family and friends. Legislation should be clear that the monitor should bear no liability for failure to take action, except in cases of gross negligence or willful misconduct.
In considering the potential role and responsibilities of monitors, it may be helpful to look to the experiences with “trust protectors”, both in Ontario and in other jurisdictions. Trust protectors may be appointed in a trust document, and given a range of powers to ensure that the purpose of the trust is fulfilled.286 Trust protectors typically do not interfere with the daily running of a trust, but rather ensure that there is no abuse by the trustee, and can provide additional professional expertise. Depending on the contents of the trust instrument, trust protectors may have powers to:
- monitor the lifestyle of the beneficiary to ensure that the trust is distributing sufficient funds,
- demand an accounting from the trust,
- settle disputes between the trustee and the beneficiaries,
- request an annual report from the trustee on accountings,
- advise the trustee on matters concerning the beneficiaries,
- interpret the terms of the trust at the request of the trustee or beneficiary, as a neutral third party,
- and many others.
Standardly, trust protectors have standing to go to court and raise issues so they can be quickly and efficiently resolved.288 Trust protectors may be family members or professionals, and may be able to receive compensation from the trust, depending on the terms of the instrument. Whether or not a trust protector is considered a fiduciary appears to be a contextual analysis, depending on the powers that have been allocated in the trust instrument.289
In its response to the Interim Report, the MHLC noted that there could be significant difficulty in identifying suitable monitors, and suggested that allowing a POA to authorize compensation for a monitor could encourage corporate or other types of independent monitors. The LCO believes this is a valuable suggestion, but it raises a number of practical challenges: the duties of a monitor are likely to vary significantly, depending on the complexity of the grantor’s circumstances. As well, the monitor would be dependent on the attorney for property to provide compensation: where the monitor raises concerns about the activities of the attorney, this could well result in a hold back of compensation to the monitor. The LCO believes that the provision of compensation should be dependent on the specification of the grantor, and that, as with powers of attorney for property, where compensation is taken, the monitor will be held to a higher standard of conduct.
At a focus group of Trusts and Estates Lawyers, it was suggested that adjudicators be enabled to appoint monitors in certain types of disputes:
[O]ne place I think the, sort of, monitor role would be useful for the court anyway would be personal care power of attorney disputes. It would be I think useful for the court to have the authority to effectively appoint the monitor. So, you know how in child custody access fights you can have a Section 30 Assessment… But really to put all the parties in a position where some third party was going to see how they were behaving other than the courts – you can’t get access to the court fast enough. And the difficulty is there’s no authority to do that, right. The idea being where we got the idea was, kind of, importing the idea of parenting coordination for what are effectively adult custody disputes. So, I think, like, that’s one area where I thought this would be useful. It doesn’t address the who will pay for it problem. But we’ve got problem on the child’s side as well anyway, right. So, it would be nice for the court to be able to do that.
Focus Group, Trusts and Estates Lawyers, April 11, 2016
The LCO believes that this may be a valuable and practical suggestion.
Chapter 4 discussed the issue of monitors in the context of personal support authorizations. Because of the differences in the roles of supporters and substitutes, the risks of abuse and misuse associated with supported decision-making arrangements differ in some (although certainly not all) ways from those associated with substitute decision-making. The success of a supported decision-making arrangement depends entirely on the quality of the decision-making process employed, rather than on the outcomes, making it more difficult to evaluate these arrangements objectively. These differences would also affect the role of a monitor in a supported decision-making arrangement. Because a supporter is not intended to make decisions, supporters are not required to keep the same kind of records of their activities that an SDM is: a monitor would be focussed on ensuring that the decision- making process was appropriate and that the supported person continued to find that the arrangement met his or her needs. Because an assessment of the success of supported decision-making arrangements is a qualitative endeavour, the LCO believes that the inclusion of a trusted monitor in the actual supportive arrangement, thereby permitting on-going knowledge of the process, is a vital safeguard.
THE LCO RECOMMENDS:
27: The Government of Ontario amend the Substitute Decisions Act, 1992 to:
a) provide grantors of a power of attorney with the option to name at least one monitor;
b) specify the following duties of a monitor:
i. make reasonable efforts to determine whether the attorney is complying with the statutory requirements for that role;
ii. keep records of their activities in this role;
iii. maintain the conﬁdentiality of the information accessed as part of this role, except as necessary to prevent or remedy abuse or misuse of the role by a person acting under a power of attorney; and
iv. to promptly report concerns to the Public Guardian and Trustee or other appropriate authority where there is reason to believe that:
the person appointed under a power of attorney is failing to fulﬁl their duties or is misusing their role, and
serious adverse effects as deﬁned in the Substitute Decisions Act, 1992
are resulting to the grantor;
c) enable the grantor of a power of attorney to authorize compensation for the monitor;
d) specify that monitors will not be liable for activities taken or not taken in the course of their duties, short of gross negligence or willful misconduct, unless they are receiving compensation for their duties;
e) give monitors the following rights, with appropriate recourse to adjudication in cases of non-compliance:
i. to visit and communicate with the person who has appointed them as monitors; and
ii. to review accounts and records kept by the attorney.
4. Enable Individuals to Exclude Family Members from Acting under the HCCA Hierarchy
HCCA’s automatic hierarchy of appointments in general provides an effective means of providing for substitute decision-making in situations where a flexible and rapid response is required. Individuals who wish to opt out of the automatic hierarchy can, in most cases, address such concerns by creating a POA for personal care that identifies a decision-maker of their choice for treatment or other HCCA issues. The legislation also allows for the PGT to consent to be appointed under a power of attorney; however, this is a rare occurrence.
However, the LCO has heard concerns that individuals with only one family member, or who are unable to trust any of their available family members, may nonetheless find themselves with someone they object to or who is abusive as their default decision-maker under the HCCA.
I think certainly that [HCCA] list needs to be looked at, and how it’s sort of like enshrined into law, that there needs to be some kind of process by which, you know, I’m not going to say it’s always possible for somebody to sort of direct who is going to be the best decision maker…. But yes, there needs to be something so that we don’t have this sort of like enshrinement of your spouses… because if you look at women who have been abused or people have been in sort of relationships in this sort of thing, like where I’ve seen that, they’re hostile, they keep them …
Focus Group, Individuals with Mental Health Disabilities, August 21, 2014
Similarly, the Advocacy Centre for the Elderly (ACE) has commented that
ACE has seen numerous cases where seniors are being abused by their lone family member. In these cases, even where the senior revokes a power of attorney for personal care, the abusive family member remains the lone willing and available person to act as SDM for the senior for decisions governed by the HCCA. The senior often does not know anyone who is trustworthy, willing, and legally able to act as their power of attorney for personal care. It is ACE’s experience that, where the PGT is asked to consent to being named as the senior’s attorney for personal care under the SDA, this consent is refused. As such, under the HCCA hierarchy, the abusive family member remains the highest ranking SDM – and the senior is required to rely on informal arrangements in which health practitioners are asked to skip over the abusive family member and proceed directly to ask the PGT for a treatment decision in the event the senior becomes incapable in the future.
Expanding the options for SDMs to allow a broader role for professional representatives and community organizations, as is discussed in Chapter 9, may reduce the number of situations in which this occurs. However, the problem is integral to the structure of the HCCA.
In its 2014 submission to the LCO, the Advocacy Centre for the Elderly has recommended that the issue be addressed by allowing individuals to create a document excluding one or more individuals from the HCCA hierarchy.
The HCCA already permits individuals to revoke a POA for personal care.291 Revocations must be in writing and meet the same execution standards in terms of witnesses as those for the creation of a POA for personal care.292
The LCO believes that allowing individuals who have legal capacity to make a POA for personal care to create a document that excludes particular individuals from appointment under the HCCA hierarchy would be a simple and effective means of empowering individuals to ensure that decisions about their treatment, placement in long-term care, or personal assistance services are not made by persons with whom they have a negative relationship. The effect would be to limit the list to those the individual implicitly approves or to allow the PGT to make HCCA decisions where necessary, without requiring it to consent to act in the broader role of a POA for personal care. This recommendation received strong support during the feedback to the Interim Report.
It was emphasized in submissions that for this recommendation to be effective, the standard for legal capacity for the creation of this document should be set quite accessibly. Given that the potential negative effects associated with excluding a person from the decision-making hierarchy is very low, the LCO agrees.
THE LCO RECOMMENDS:
28: The Government of Ontario amend the Health Care Consent Act, 1996 to enable individuals to create a binding statement in writing to speciﬁcally exclude a particular individual or individuals from acting under the hierarchy set out in section 20 of that Act,
a) through a written document which meets the same execution requirements as a revocation of a power of attorney for personal care under section 53 of the Substitute Decisions Act, 1992 and which
b) requires a standard for legal capacity similar to that for creating a power of attorney for personal care.
This statement could not be used to exclude the Public Guardian and Trustee from acting.
Recommendations for reform of Ontario’s mechanisms for addressing abuse and misuse of decision-making powers require a careful balancing of a number of objectives, including the effective use of limited resources; maintaining the accessibility of planning tools; avoiding over-burdening well-intentioned family members and friends who take on statutory responsibilities; promoting understanding of rights, risks and responsibilities among all those involved; and reducing the incidence of abuse and misuse and improving the means for identifying and addressing it.
The LCO’s recommendations have focused on identifying practical options that can be implemented at low-cost, and without adding unreasonable burdens on attorneys, while still promoting greater clarity, transparency and oversight. In particular, the LCO recommends that those appointed under a POA be required to complete a Statement of Commitment at the time that they take up their responsibilities under the appointment, and that grantors be encouraged to identify individuals who must be notified at the time an attorney begins to act. As well, the LCO recommends that the role of monitor be formalized and that use of this mechanism be encouraged for a POA. Finally, the LCO recommends that individuals be empowered to identify individuals whom they do not wish to act for them under the Health Care Consent Act’s automatic appointments.
The LCO’s proposals are intended as practical steps to improve understanding, strengthen transparency and accountability, and ultimately reduce misuse and abuse of powers of attorney, while preserving the flexibility and accessibility of these instruments.
As was noted at the outset of this Chapter, concerns regarding abuse and misuse of POAs have been attributed, to a significant degree, to pervasive misunderstanding and ignorance about these important documents. Some of the reforms proposed in this Chapter, such as the Statements of Commitment, are intended in part to ameliorate this problem. Chapter 10 addresses problems of information and education in the broader context of this area of the law.
This Chapter focused on the creation and contents of personal appointments: the following Chapter, Chapter 7, examines Ontario’s current institutions and processes for enforcing rights and resolving disputes. Where there are disputes about the validity of a power of attorney or the actions of an attorney, for example, these are the institutions and processes to which families resort for redress and resolution. The reforms proposed in this Chapter should therefore be considered also in the context of the recommendations set out in Chapter 7.