LIST OF RECOMMENDATIONS: SHORT, MEDIUM AND LONG-TERM TIMEFRAMES
In accordance with the concept of progressive realization, and recognizing both the challenges associated with some of the LCO’s recommendations and the constraints on law reform in the current environment, the LCO has identified recommendations which can be implemented over short, medium and longer timeframes. In identifying time frames, consideration has been given to the complexity of implementation, the likely cost of the recommendation, and whether the reform requires legislative change or can be implemented at the level of policy or practice.
Short Term
Short–term recommendations are ones that could be implemented immediately, or very soon. They include recommendations that are relatively straightforward, for example, involving clarification of legislation. They can be implemented at a relatively low cost, and either do not require legislative amendments or the necessary amendments to the legislation could be made without significantly opening up the relevant statute.
1: The Government of Ontario include in reformed legal capacity, decision-making and guardianship legislation provisions that are informed by the LCO Frameworks for the law as it affects persons with disabilities and the law as it affects older adults, and which set out
a) the purposes of the legislation; and
b) the principles to guide interpretation of the legislation.
2: The Government of Ontario
a) initiate a strategy to reform legal capacity, decision-making and guardianship law;
b) collect, review and publicly share information and data related to this area of the law;
c) publicly report on the progress of its strategy for reform; and
d) commit to ongoing review and evaluation of this area of the law and the effect of reform
5: The Government of Ontario amend the statutory requirements for decision-making practices related to property management to:
a) clarify that the purpose of substitute decision-making for persons with respect to property is to enable the necessary decisions to provide for the well-being and quality of life of the person, and to meet the financial commitments necessary enable the person to meet those ends; and
b) while retaining the existing list of priorities for property expenditure, require that when resources are allocated to the first priority of the individual’s support, education and care, that consideration be given to prior capable wishes regarding the individual’s well-being and quality of life, or where these have not been expressed, to the values and wishes currently held.
6: The Government of Ontario
a) develop pilot projects that evaluate autonomy-enhancing approaches to decision-making among persons with impaired decision-making abilities and their families;
b) in developing these pilot projects, work in partnership with a broad array of stakeholders and account for the specific needs of a range of communities, including persons with a range of disabilities and decision- making needs, those who are socially isolated as well as those with existing networks, and members of various linguistic and cultural communities; and
c) broadly circulate the results of these pilot project
9: The Government of Ontario commit to an ongoing program of research and evaluation of national and international developments in positive decision-making practices and legal and social frameworks for capacity and decision-making, with a view to identifying and implementing approaches that:
a) promote the Framework principles;
b) address considerations related to appropriate legal accountability; and
c) address the needs of third parties for clarity and certainty.
11: The Government of Ontario
a) amend the Substitute Decisions Act, 1992 to provide a clear statement as to the appropriate purposes of Capacity Assessment; and
b) review forms under the Substitute Decisions Act, 1992 to ensure that the forms promote the use and conduct of Capacity Assessments in accordance with the purposes and principles underlying the statute.
12: Consistent with the presumption of capacity, the Government of Ontario amend section 54 of the Mental Health Act with respect to examinations of capacity to manage property, to require physicians to conduct such examinations only where there are reasonable grounds to believe that the person may lack legal capacity to manage property.
13: The Government of Ontario amend section 54(6) of the Mental Health Act to clarify that a physician may only dispense with an examination of capacity to manage property that would be otherwise required if the existing continuing power of attorney covers all of the patient’s property.
15: The Government of Ontario review the list of professionals eligible to conduct Capacity Assessments under the Substitute Decisions Act, 1992.
16: The Government of Ontario create official Guidelines for assessments of capacity under the Health Care Consent Act, 1996, incorporating basic principles, procedural rights, and guidance for appropriate assessments of particular populations, including the provision of accommodation.
17: The Government of Ontario create official Guidelines for examinations of capacity to manage property under Part III of the Mental Health Act, including in addition to matters listed in Recommendation 16, guidance on the appropriate application of section 54(6).
20: To improve the quality of assessments of capacity in health care settings, Health Quality Ontario:
a) Within the scope of its mandate, take the following steps to encourage the improvement of the quality of assessments of capacity in accordance with legal standards in health care settings:
i. encourage health care organizations to include issues related to assessment of capacity and the accompanying procedural rights in their Quality Improvement Plans;
ii. encourage the inclusion of issues related to the assessment of capacity and the accompanying procedural rights in patient surveys conducted by health care organizations;
iii. assist partners in the health care sector in the development or dissemination of educational materials for health care organizations related to the assessment of capacity and the accompanying procedural rights; and
iv. consider bringing specific focus to monitoring of the quality of consent and capacity issues in health care through the production of a dedicated report on this issu
b) promote approaches to quality that include respect for patient autonomy, a thorough understanding of the legal foundations of capacity and consent, and the promotion of patient
21: The Ministry of Health and Long-Term Care further promote the ability of long-term care homes to better address their responsibilities under the Bill of Rights regarding consent, capacity and decision-making by:
a) including information related to these issues in their annual resident and family satisfaction surveys;
b) working with and strengthening the capacities of Residents and Family Councils to develop educational programs for residents and families on these issues; and
c) developing a thorough and specific focus on issues related to consent, capacity and decision-making in their staff training.
22: Within the scope of their mandates and objects, the Local Health Integration Networks use their roles in improving quality, setting standards and benchmarks and evaluating outcomes to
a) support and encourage health services to improve information, education and training for professionals carrying out assessments of capacity under the Mental Health Act and Health Care Consent Act, 1996;
b) ensure effective provision of rights information; and
c) support the provision of information and resources to substitute decision-makers regarding their roles and responsibilities under the Health Care Consent Act, 1996.
23: The Ministry of Community and Social Services consider whether, within its oversight functions under the Supports and Services to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 there are ways in which it can support and encourage the use of positive and autonomy-enhancing approaches to decision-making.
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.
30: The Government of Ontario and any court or tribunal addressing issues of legal capacity, decision-making and guardianship develop programs and policies that expand alternative dispute resolution options, including mediation and emerging approaches, for appropriate cases. These programs/policies would:
a) be clear that a determination of a person’s legal capacity cannot be made through mediation;
b) identify matters that are appropriate for mediation or other forms of alternative dispute resolution;
c) develop professionals with core competencies necessary to effective mediation and dispute resolution in this area of the law, including:
i. knowledge and skills in capacity and guardianship law and any other specific law at issue;
ii. the principles and values underlying capacity and guardianship law and of human rights;
iii. the needs and circumstances of individuals who are affected by this area of the law; and
iv. alternatives to the use of guardianship or substitute decision-making; and
d) create a code of ethics and of standards for mediation and other forms of alternative dispute resolution in this area, including guidance on capacity and consent to engage in mediation.
31: The Government of Ontario consider clarifying the application of Rule 7 under the Rules of Civil Procedures regarding the approval of settlements for persons under disability in the specific context of the consideration of expanded mediation and alternative dispute resolution of matters under the Health Care Consent Act, 1996 and the Substitute Decisions Act, 1992 by the Consent and Capacity Board or other tribunal.
32: The Government of Ontario amend the Substitute Decisions Act, 1992 to specify that it is an offence for a person to impede or interfere with the ability of counsel appointed under section 3 to carry out their statutory function, and to codify a right for Section 3 Counsel to meet privately with their clients.
33: The Government of Ontario, working with the Law Society of Upper Canada, lawyer organizations and others, develop a range of supports for lawyers appointed as Section 3 Counsel under the Substitute Decisions Act, 1992.
34: The Law Society of Upper Canada consider whether clarification of the Rules of Professional Conduct with respect to the appropriate relationship between a lawyer and counsel for persons who lack or may lack legal capacity is required, and if so, that it amend the Rules accordingly.
35: Legal Aid Ontario consider:
a) expanding funding of matters under the Substitute Decisions Act, 1992 and in particular of additional supports to:
i. enhance access to Section 3 Counsel;
ii. enhance access to legal representation for persons who wish to challenge the appointment or choice of a guardian and are not the subject of a Section 3 appointment;
iii. enable individuals to challenge the compliance of substitute decision-makers appointed under the Substitute Decisions Act, 1992 with their responsibilities under that statute
b) enhancing the supports available to promote the knowledge and skills of lawyers who provide services in this area of the law.
37: In order to promote understanding and ease of navigation, the Government of Ontario take steps to clarify the interpretation of the Public Guardian and Trustee’s ‘serious adverse effect’ investigation mandate.
41: The Government of Ontario
a) amend the Substitute Decisions Act, 1992 to require an adjudicator, when appointing a guardian either of the person or of property, to make the appointment:
i. for a limited time,
ii. subject to a review at a designated time, or
iii. subject to a requirement for the guardian at specified intervals to submit an affidavit with particulars to all parties, indicating that the individual has not regained legal capacity, that the need for decision- making remains, and that there are no less restrictive alternatives available, unless the adjudicator believes that the circumstances warrant an unlimited appointment; and
b) provide adjudicators with the authority necessary to enable the necessary oversight.
42: The Government of Ontario amend the Substitute Decisions Act, 1992 to require all guardians, upon request by the individual, to assist with the arrangement of assessments of capacity, no more frequently than every six months.
43: The Government of Ontario amend the Substitute Decisions Act, 1992 to require guardians, should they have reason to believe that the individual has regained legal capacity, to assist the individual to have his or her guardianship order terminated.
44: Consistent with the current approach to the appointment of guardians for personal care, the Government of Ontario amend the Substitute Decisions Act, 1992 to permit adjudicators to make appointments for limited property guardianships, where an assessment of needs for decision-making indicates that a partial guardianship would meet the needs of the individual within the time limits of the order.
45: The Ontario Government amend the Substitute Decisions Act, 1992 to permit an adjudicator to appoint a representative to make a single decision related to property or personal care.
49: The Government of Ontario
a) assume a dedicated statutory mandate to:
i. identify strategies and priorities for outreach, education and information;
ii. coordinate and develop ongoing outreach, education and information initiatives;
iii. develop and distribute materials regarding legal capacity and decision-making;
b) delegate this mandate to an appropriate institution.
50: The education and informational materials referred to in Recommendation 49 address the information and education needs of:
a) persons directly affected by the law;
b) family members and substitute decision-makers and supporters;
c) professionals who advise on and apply the law; and
d) service providers who interact with the law.
54: The Government of Ontario amend the Health Care Consent Act, 1996 to create a clear and specific duty for health practitioners to provide information to substitute decision-makers regarding their roles and duties under the Act, as part of the process of seeking consent; the creation of a standard, statutorily mandated form may support health practitioners in carrying out this responsibility.
56: Institutions responsible for educating lawyers, health practitioners, social workers and other professions involved in this area strengthen their activities with a view to devoting greater focus to issues related to legal capacity, decision-making and guardianship, as they affect their particular profession, and in particular:
a) Professional educational institutions re-examine their curricula in order to strengthen coverage of issues related to legal capacity, decision-making and consent, particularly in the context of training in ethics and professionalism; and
b) Professional regulatory bodies examine their educational offerings and consider developing further practice guidelines or standards.
57: Health regulatory colleges falling under the Regulated Health Professionals Act include issues related to legal capacity and consent as a priority in their quality assurance programs, including identification and assessment of core competencies in this area.
58: The Ministry of Health and Long-term Care support and encourage the health regulatory colleges in developing quality assurance programs related to legal capacity and consent that promote legal rights and advance best practices.
Medium Term
Medium-term recommendations include those that either require some investment of resources, or involve sufficient complexity that some significant further work is required to draft effective legislative provisions. Medium-term recommendations therefore cannot be implemented immediately, but should be undertaken as soon as resources or time permit.
3: In order to clarify that a person has legal capacity where the test can be met with appropriate accommodations and to assist service providers in providing such accommodations, the Government of Ontario:
a) define the scope and content of the human rights duty to accommodate in this area of the law, as it applies to service providers,
b) and in doing so, consult broadly with individuals; community agencies; a wide range of service providers, including in the health, financial and private sectors; and other key stakeholders.
4: The Government of Ontario amend the Health Care Consent Act, 1996 and Substitute Decisions Act, 1992 to clarify
a) that legal capacity exists where the individual can meet the test for capacity with appropriate accommodations, and
b) the requirement that assessments of capacity be carried out in accordance with the approach to accommodation developed under domestic human rights law.
7: The Government of Ontario enact legislation or amend the Substitute Decisions Act, 1992 to enable individuals to enter into support authorizations with the following purposes and characteristics:
a) The purpose of the authorizations would be to enable individuals to appoint one or more persons to provide assistance with decision-making;
b) The test for legal capacity to enter into these authorizations would require the grantor to have the ability to understand and appreciate the nature of the agreement;
c) These authorizations would be created through a standard and mandatory form;
d) Through a support authorization, the individual would be able to receive assistance with day-to-day, routine decisions related to personal care and property;
e) Decisions made through such an appointment would be the decision of the supported person; however, a third party may refuse to recognize a decision or decisions as being that of the supported person if there are reasonable grounds to believe that there has been fraud, misrepresentation or undue influence by the supporter;
f) Support authorizations must include a monitor who is not a member of supported person’s family and who is not in a position of conflict of interest, with duties and powers as set out in Recommendation 26, and supporters must complete a Statement of Commitment, as described in Recommendation 25;
g) The duties of supporters appointed under such authorizations would include the following:
i. maintaining the confidentiality of information received through the support authorization;
ii. maintaining a personal relationship with the individual creating the authorization;
iii. keeping records with regards to their role;
iv. acting diligently, honestly and in good faith;
v. engaging with trusted family and friends; and
vi. acting in accordance with the aim of supporting the individual to make their own decisions;
h) Persons appointed under such authorizations would have the following responsibilities as required:
i. gather information on behalf of the individual or to assist the individual in doing so;
ii. assist the individual in the decision-making process, including by providing relevant information and explanations;
iii. assist with the communication of decisions; and
iv. endeavour to ensure that the decision is implemented.
8: The Government of Ontario conduct further research and consultation towards the development of a statutory legal framework for network decision-making. This framework would:
a) permit formally established networks of multiple individuals including non-family members, to work collectively to facilitate decision-making for individuals who may not meet current tests for legal capacity;
b) identify formal requirements for the creation of networks, including accountability documents, decision- making processes and record-keeping requirements;
c) create a registration process for networks as well as annual filing requirements; and
d) determine the legal authority and accountability of these networks, including signing authority.
10: The Government of Ontario design and implement a statutory process for decision-making with respect to detention for those who lack legal capacity, do not fall within the Mental Health Act and whose detention is required in order to address vital concerns for security or safety. This statutory process would:
a) balance the competing considerations of safety and fundamental liberty rights, in keeping with a least restrictive approach to issues related to legal capacity and decision-making;
b) provide meaningful procedural protections, taking into account the significant barriers to access to justice experienced by those directly affected;
c) consider the potential for conflicts of interest on the part of substitute decision-makers;
e) take into account the reasonable needs of those administering the law, so as to avoid unnecessary or ineffective administrative burdens; and
e) include a strategy for data collection, public reporting, and monitoring and evaluation.
14: The Government of Ontario develop and implement a strategy for improving access to Capacity Assessments under the Substitute Decisions Act, 1992. Such a strategy would consider how to remove informational, navigational, communication and other barriers for persons in remote and First Nation communities; newcomer communities; youth in transition from care; persons facing communications barriers, including among others those who are Deaf, deafened or hard of hearing and persons for whom English or French is a subsequent language; low-income individuals; and others identified as facing barriers.
18: To strengthen Ontario’s rights information regime,
a) The Government of Ontario amend sections 17, 1 and 62.1 of the Health Care Consent Act, 1996 to include clear and effective common standards for the provision of rights information to the individual who has been found to lack legal capacity, which will protect fundamental rights and will ensure that:
i. notice is provided of the determination of incapacity, the consequences of the incapacity, the identity of the substitute decision-maker who will be making the decision with respect to treatment, and the right to challenge the finding of incapacity;
ii. the information is provided in a manner that accommodates the needs of the affected individual, including alternative methods of communication; and
iii. the health practitioner provides the individual with information or referrals regarding the means of pursuing an application to the Consent and Capacity Board to challenge the finding of incapacit
b) Consistent with Recommendations 57 and 58, the health regulatory colleges strengthen their role of supporting and educating their members about how to meet these minimum standards through guidelines and professional education as appropriat
c) To assist in the implementation of this Recommendation, the Ontario Government amend the Health Care Consent Act, 1996 to require health practitioners and Capacity Evaluators, upon a finding of incapacity, to complete a simple regulated form, analogous to Form 33 “Notice to Patient” under the Mental Health Act, which would indicate the requirements for informed consent and rights information, and the practitioner’s confirmation that these requirements had been adhered to.
24: The Government of Ontario
a) actively monitor, evaluate and report on the success of initiatives to:
i. improve the quality of assessments of capacity and
ii. strengthen meaningful access to procedural rights,
b) should significant improvement not be apparent, undertake more wide-ranging initiatives.
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 appointment. 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 consequen
b) where appropriate, include this acknowledgement as part of the Notice of Attorney Acting described in Recommendation 26.
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.
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
i. to review accounts and records kept by the attorney.
36: The Government of Ontario consider conducting further research and consultation towards developing fair and appropriate processes that provide the Public Guardian and Trustee with the discretion, upon completion of an investigation that does not warrant an application for temporary guardianship but that raises concerns related to misuse of decision-making powers, to forward a written report to an adjudicator who would be empowered to order training, mediation, regular reporting for a substitute decision-maker or other remedies as appropriate.
38: The Government of Ontario amend the Health Care Consent Act, 1996 to
a) enable individuals to bring applications under sections 37, 54 and 69 to determine whether their substitute decision-maker is in compliance with their decision-making obligations;
b) enable monitors appointed under a power of attorney to bring applications under sections 35, 37, 52, 54, 67 and 69 to determine whether an attorney is in compliance with decision-making obligations and to seek directions with respect to wishes;
c) enable other parties to bring applications under sections 35, 37, 52, 54, 67 and 69:
i. to determine whether a substitute decision-maker is in compliance with decision-making obligations and to seek directions with respect to wishes;
ii. only with leave of the tribunal, and in such cases the tribunal is required to take into account the views of the allegedly incapable person in granting leave;
d) enable
i. health care practitioners proposing treatment, persons proposing admission to a care facility, or staff member responsible for personal assistance service
ii. a monitor appointed under a power of attorney, or
iii. third parties with leave of the tribunal
to bring applications to determine whether a substitute decision-maker meets the requirements of sections 20(2) of the Health Care Consent Act, 1996 including whether the substitute decision-maker is capable with respect to the decision.
39: The Government of Ontario promote effective consideration of the “least restrictive alternatives” under the Substitute Decisions Act, 1992 by giving adjudicators who are considering the appointment of a guardian for matters related to property or personal care the authority to:
a) request submissions from any party regarding the least restrictive alternative;
b) request, with appropriate processes and safeguards, a report from a relevant expert or organization, such as the Public Guardian and Trustee, Adult Protective Services Worker, Developmental Services staff or other body, on the circumstances of the individual in question, including
i. the nature of their needs for decision-making,
ii. the supports already available to them, and
iii. whether there are additional supports that could be made available to them that would obviate the need for guardianship,
and provide these experts or institutions with appropriate powers and responsibilities for the preparation of such reports.
51: In developing education and information strategies and materials, the responsible institution:
a) take into account the needs of diverse communities affected by the law, including provision of materials in plain language, in multiple languages, in a variety of disability-accessible formats, and in non-print formats (such as, for example, in-person or telephone information) and digital formats;
b) address the needs of linguistic and cultural communities;
c) give specific attention to the needs of persons living in settings such as long-term care homes, psychiatric facilities, hospitals and other settings where access to the broader community may be limited;
d) consult persons directly affected by the law, families, and those who work with or represent these individua
e) work in partnership with other institutions and stakeholders with interests or expertise in this area;
f) identify opportunities to work with and build on the strengths of community institutions, including religious and cultural institutions; and
g) develop and maintain a central clearinghouse for education and information materials.
52: Information provided in materials for those acting as substitute decision-makers or supporters include instruction on the legislation, statutory duties and the rights of the affected individual, effective and autonomy- enhancing decision-making practices, tools (for example, for maintaining records) and resources where further information and supports can be found.
53: The Government of Ontario include appropriate information materials on the standard forms for personal appointments.
55: Adjudicators be empowered, in a matter before them with respect to the Substitute Decisions Act, 1992, to require a guardian or person acting under a power of attorney or support authorization to obtain education on specific aspects of her or his duties and responsibilities.
Long Term
Long-term recommendations are those that involve complex or novel issues. Their implementation may be predicated on the prior implementation of other recommendations or may require further research or consultation. Work towards these recommendations should begin, but with the recognition that some time may be required to identify effective approaches to implementation.
19: In order to strengthen the protection of legal rights under the Health Care Consent Act, 1996, the Government of Ontario develop a strategy to expand and evaluate the provision of independent and expert advice about rights to individuals who have been found to lack legal capacity; considerations in developing such a strategy include:
a) building on partnerships with organizations in the justice sector;
b) focusing on those most vulnerable or whose rights are most gravely at risk, including persons subject to evaluations of capacity with respect to admission to long-term care; and
c) developing and evaluating pilot projects in a range of settings.
29: Building on the accomplishments of the Consent and Capacity Board, the Government of Ontario work towards the creation of a tribunal to strengthen dispute resolution and rights enforcement under the Substitute Decisions Act, 1992 Health Care Consent Act, 1996, and Part III of the Mental Health Act.
a) The tribunal would have the following characteristics:
i. broad jurisdiction over issues related to legal capacity, decision-making and guardianship;
ii. an approach that recognizes the fundamental rights affected by this area of the law, the vulnerability of the persons at the centre of these disputes, and the ongoing relationships that are frequently involved;
iii. expertise in this area of the law, as well as in the needs and contexts of those directly affected by this area of the law;
iv. strong adjudicative powers, to deal with the range of issues before it;
v. flexible and tailored policies and procedures, to promote proportionate, responsive and user-centred access to the law;
vi. services and supports, whether provided by the tribunal or in partnership with other organizations, to provide information and referral services, assist with navigation, and connect parties to accommodations and supports necessary to effectively access tribunal processes;
vii. administrative structures and supports to enable it to effectively address time-sensitive issues;
viii. the ability to expand the evidence base relevant to its mandate; and
ix. broad remedial power
b) In defining the jurisdiction of the tribunal, consideration be given to:
i. the appropriateness of granting jurisdiction to consider constitutionality of its enabling statute and to grant remedies under the Constitution Act, 1982; and
ii. the desirability of enabling the tribunal to refer specified matters to the Superior Court of Justice for determination, or other measures to address needs for expertise and proportionality .
40: In order to promote transparent and consistent consideration of less restrictive alternatives in the context of guardianship appointments, and to enable the Public Guardian and Trustee to focus its mandate,
a) the Government of Ontario conduct further research and consultations towards replacing statutory guardianship with an accessible adjudicative process, in which assessments of capacity under the Mental Health Act and Substitute Decisions Act, 1992 result not in deemed applications for guardianship rather than automatic appointment
b) in designing this adjudicative process, consideration be given to:
i. ensuring that applications are heard in a timely fashion;
ii. providing a mechanism for urgent applications in appropriate cases;
iii. providing the adjudicators with appropriate powers to gather the requisite information to make a determination as to the appropriateness of guardianship and the choice of a guardian; and
iv. providing a mechanism for identifying situations where the Public Guardian and Trustee should exercise its mandate as a substitute decision-maker.
46: The Government of Ontario conduct further research and consultation towards the goal of establishing a dedicated licensing and regulatory system for professional substitute decision-makers that includes the following attributes and safeguards:
a) Licensing and oversight focus on those in the business of providing these services for multiple individuals;
b) Licensing and oversight be provided by the provincial government or through a government agency potentially funded through fees;
c) Licensed professional substitute decision-makers be permitted to make both property and personal care decisions, and to be appointed either personally or externally;
d) The oversight regime address the following safeguards and assurances of quality:
i. Ongoing requirements for skills and training;
ii. Ongoing professional development requirements;
iii. Requirements for credit and criminal records checks;
iv. Quality assurance and conduct standards, including prohibitions on conflicts of interests;
v. Record keeping requirements;
vi. Annual filing requirements; and
vii. Requirements for bonds or insurance.
47: The Government of Ontario conduct further research and consultations towards the goal of enabling community agencies to provide substitute decision-making for day-to-day decisions, such as basic budgeting, bill paying and accessing supports and services, through a program which includes:
a) a process for identifying appropriately qualified community agencies;
b) clear standards for quality assurance, accountability, avoidance of conflicts of interest, and responding to abuse;
c) oversight mechanisms, including reporting and audit requirements; and
d) dispute resolution mechanisms.
48: Subject to the implementation of Recommendations 40, 46 and 47, the Government of Ontario work towards focusing the mandate of the Public Guardian and Trustee on sustainably providing its expert, trustworthy, professional substitute decision-making for those who do not have access to appropriate alternatives.