This Chapter provides a very brief overview of the key elements of Ontario’s systems for legal capacity, decision-making and guardianship. It is not intended as a guide to the system, but rather to orient readers who may not be as familiar with this area of the law to the key elements of Ontario’s approach and how each aspect fits into the entire scheme, as well as some of its core strengths and shortcomings. Further details of key provisions are set out in the relevant chapters.
A. Description of Ontario’s Legal Capacity and Decision-making Laws
Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Three separate law reform initiatives undertaken during this time profoundly influenced Ontario’s current laws. The Committee on the Enquiry on Mental Competency (“Weisstub Enquiry”) was given the task of developing a set of recommended standards for determining the mental competence of individuals to make decisions about health care, management of financial affairs and appointment of a substitute decision-maker: the Final Report concluded that the process for testing legal capacity must respect both the principle of autonomy and that of best interests, as well as reflecting the importance of proportionality, administrative simplicity and relevance. The Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (“Fram Committee”) was appointed by the Attorney General to “review all aspects of the law governing, and related to, substitute decision making for mentally incapacitated persons and to recommend revision of this law where appropriate”, and its Final Report (“the Fram Report”) identified as underlying values for this area of the law freedom from unnecessary intervention; self-determination; and community living through access to support. The Review of Advocacy for Vulnerable Adults (“the O’Sullivan Report”), while ultimately having a more limited legislative impact, identified a number of important goals associated with this area of the law, including, among others, providing safeguards against unnecessary guardianship; promoting independence; encouraging self-advocacy (self-determination) where possible; enhancing the role of family and friends; and educating, delabeling and destigmatizing.
Ontario’s resulting statutory framework for legal capacity, decision-making and guardianship is extensive, intricate and nuanced. At its core are two statutes: the Substitute Decisions Act (SDA), which addresses decisions related to property management and personal care, and identifies the appointment processes and the duties of guardians and those acting under powers of attorney (POA); and the Health Care Consent Act, 1996 (HCCA), which addresses consent to treatment, admission to long-term care homes and personal assistance services for residents of long-term care homes. In addition, the Mental Health Act (MHA) addresses examinations of capacity to manage property upon admission to or discharge from a psychiatric facility. There are other laws related to legal capacity, including those related to access to personal health information, and the common law, which are not addressed in this project. Although the project focuses on this particular area of the law, of course laws related to legal capacity and decision-making must be understood within the broader context of laws related to health services, long-term and community care, elder abuse, income support programs and others.
To understand the actual implementation of these laws, it is important to keep in mind that they are delivered through multiple ministries and organizations in a very wide range of contexts. The Ministry of the Attorney General, the Ministry of Health and Long-Term Care, the Ontario Seniors Secretariat, the Ministry of Community and Social Services, and the Public Guardian and Trustee (PGT) all play important roles in the delivery of this legislation. Persons directly affected by these laws may be living in long-term care homes, retirement homes, group homes, hospitals, psychiatric facilities or the community. Those affected may have temporary acute illnesses or chronic conditions. They may be living with addictions, mental health disabilities, acquired brain injuries, dementia, aphasia, developmental or intellectual disabilities, or many other types of disabilities. The complexity of implementation adds immensely to the complexity of the laws themselves.
Approach to Legal Capacity
In Ontario, the approach to legal capacity is functional and cognitive. The focus is on the functional requirements of a particular decision, not a medical diagnosis, the probable outcome of the person’s decisions, or an abstract assessment of abilities. Tests for legal capacity are based on the ability to understand and appreciate the information relevant to a particular decision or type of decision, and the consequences of making that decision (or of not making a decision).
Determinations of legal capacity are domain or decision-specific, recognizing that a person can have the ability to make some decisions and not others. There are specific tests of capacity for different types of decisions. It is also understood that the ability to understand and appreciate may vary over time.
Because determinations of legal capacity affect the autonomy interests of individuals, the legislation codifies a clear presumption of capacity for the ability to contract, make decisions about personal care, and to make decisions about treatment, admission to long-term care and personal assistance services. Legal capacity in these areas can only be removed through specific mechanisms outlined in the legislation: these mechanisms differ for these decision-making areas, in part because treatment and admission to long-term care involve the provision of necessary services for which the provider has an affirmative duty to obtain consent.
Assessing Legal Capacity
Ontario has an extremely elaborate system for assessing legal capacity, in part deriving from its domain specific approach to capacity. The type of assessment of capacity carried out depends on the nature of the decision at issue. In addition to the informal assessments of capacity that are carried out by service providers, there are four formal, statutorily regulated mechanisms:
1. Examinations of capacity to manage property upon admission to or discharge from a psychiatric facility: under the MHA, when a person is admitted to a psychiatric facility, an examination of capacity to manage property is mandatory, unless the person’s property is already under someone else’s management through a guardianship for property under the SDA or there are reasonable grounds to believe that there is a continuing power of attorney which provides for the management of property. These examinations are carried out by a physician. While individuals do not have the ability to refuse an examination, there are a number of important procedural protections, such as access to independent, specialized rights advice upon a finding of incapacity.
2. Assessments of capacity to manage property or personal care: under the SDA, assessments of legal capacity to manage property or personal care may be carried out for a variety of reasons, such as to trigger statutory guardianship for property or to activate a continuing power of attorney for property or personal care. To trigger a statutory guardianship for property, a Capacity Assessment by a designated Capacity Assessor is required. If a continuing power of attorney for property is one that comes into effect upon the grantor’s incapacity, if the power of attorney does not specify otherwise, the determination of incapacity must be made under the MHA, as described above, or by a designated Capacity Assessor. For a power of attorney for personal care, the assessment is that of the appointed attorney, unless the document requires otherwise. A professional designated as a Capacity Assessor under the SDA must meet particular requirements related to education and training and comply with guidelines developed under the statute. A list of Capacity Assessors is maintained by the Capacity Assessment Office: it is the responsibility of those seeking a Capacity Assessment to select and pay for this service.
3. Assessments of capacity to make treatment decisions: under the HCCA, these assessments are carried out by the health practitioner who is proposing the treatment, as part of the process of obtaining valid consent to treatment. Guidelines for these assessments are provided by the health regulatory college for the various professions. Patients found to be incapable are entitled to the provision of basic rights information by the treating practitioner.
4. Evaluations of capacity to make decisions regarding admission to long-term care: Capacity evaluators are responsible for assessing legal capacity to make decisions regarding consent to admission to long-term care and personal assistance services. Capacity evaluators must be members of a limited number of health regulatory colleges, but do not have any statutorily mandated training or guidelines related to their activities. As with assessments related to treatment, rights information (rather than independent rights advice) must be provided to a person who is found incapable following an evaluation.
Where a decision is necessary and an individual has been found legally incapable with respect to that decision or that type of decision, a substitute decision-maker (SDM) will be appointed to make that decision. The methods of appointment are described in the following sections.
Once appointed, the SDM is held responsible at law for his or her actions in this role, and may be liable for damages for breach of duties. The SDM is to act on the individual’s behalf and for that person’s benefit. An SDM for property is a fiduciary, and must carry out his or her duties diligently, with honesty and integrity, and in good faith, for the benefit of the individual.
The legislation sets out criteria for decisions made by SDMs. In managing the property, the SDM shall make those expenditures that are reasonably necessary, in order of priority,
· for the individual’s support, education and care;
· for the support, education and care of the individual’s dependents; and
· that are necessary to satisfy the individual’s legal obligations.
For personal care and treatment decisions, the SDM must respect the prior capable wishes of the individual. If no prior wishes or instructions were expressed, the SDM is to be guided by the best interests of the individual, taking into consideration the following variables:
· the individual’s values and beliefs held while capable, and that the SDM believes the individual would still act on if capable;
· the individual’s current wishes, if they can be ascertained; and
· whether the decision is likely to improve the individual’s quality of life, prevent its deterioration, or reduce the extent or rate of any deterioration; and whether the benefits of the decision will outweigh the risk of harm from an alternative decision.
In general, the SDM must choose the least intrusive and restrictive course of action available and appropriate in the circumstances.
SDMs for property and personal care must keep records of their activities, and have a number of important procedural duties, such as:
· explaining their powers and duties to the individual;
· encouraging the participation of the individual in decisions related to property;
· fostering regular personal contact between the individual and her or his supportive family members and friends; and
· consulting from time to time with supportive family members and friends who are in regular personal contact with the individual, as well as those from whom the individual receives personal care.
Powers of Attorney
In Ontario, individuals may use a power of attorney (POA) to personally appoint a continuing SDM for property. Such a POA for property may be drafted to come into effect immediately upon the creation of the document, or at the time when the granter loses legal capacity. As well, a POA for personal care (POAPC) may be created: these only come into effect upon the grantor’s incapacity.
POAs are extremely powerful instruments. A POA for property, for example, enables the holder to do anything that the grantor could do, except to make a will. A person exercising a POA for property can make or cash-out investments, buy or sell property (including the grantor’s home), make purchases both large and small, and transfer financial assets between accounts. The holder of a POAPC has considerable control over the most intimate details of daily life, including where the grantor lives, what kind of health care he or she receives, as well as decisions about hygiene, nutrition and safety. This flexibility allows the attorney to act effectively on behalf of the grantor. It also gives the attorney considerable control over the well-being of the grantor. That is, the POA can be exercised either for good or for ill; the quality of the attorney will have a considerable impact on the life of the grantor. Notably, once an individual has lost legal capacity, she or he may also lose the ability to revoke the POA.
The tests for capacity to create powers of attorney for property or personal care are set out in the SDA. The test for capacity to create a POA for property is relatively rigorous, while that for a POAPC is much more accessible.
There is no required form for these POAs, although individuals may use the form that has been made available through the Ministry of the Attorney General. Two witnesses to the execution of the POA are required. The SDA lists a number of types of individuals excluded from acting as witnesses, including persons under age 18, spouses or partners of either the attorney or the grantor, the attorney, a child of the grantor, or a person who has a guardian for property or of the person.
SDMs may also be externally appointed through two means: a statutory guardianship or a court appointment.
Statutory guardianship is intended to provide an expeditious, relatively low-cost administrative process for entering guardianship. It is available only in relation to property management decisions. Statutory guardianships are triggered automatically through a finding of a lack of capacity, either through an Examination for Capacity under the MHA, or through a Capacity Assessment under the SDA, as described above.
Initially, the statutory guardian for property is the PGT. However, designated individuals (family members) may apply to the PGT to become replacement guardians of property, and where the applicant is suitable and has submitted an appropriate management plan, the PGT may appoint the person. If the PGT refuses an application to act as a replacement statutory guardian, it must give reasons in writing for its decision. If the applicant contests the decision of the PGT in writing, the PGT must apply to the Court to resolve the matter. If it is found that the individual under statutory guardianship had previously created a POA for property which provides authority over all of the individual’s property, the statutory guardianship is terminated.
Any person may apply to the Superior Court of Justice to be appointed as guardian either of property or the person. Guardianship of the person may be either full or partial, and a full guardianship may be ordered only if the court finds the person incapable with respect to all issues related to personal care, including health care, nutrition, hygiene, safety, shelter and clothing. The court may only appoint a guardian where the individual has been determined to lack capacity to make decisions for property or personal care and as a result needs decisions made on her or his behalf, and the court is satisfied that there is no alternative course of action that would not require a finding of incapacity and would be less restrictive of the person’s decision-making rights.
Appointments under the Health Care Consent Act
Under the HCCA, where a decision is required with respect to treatment, admission to long-term care or personal assistance services, and the individual does not have the legal capacity to give consent, an SDM for that decision is automatically appointed, according to a hierarchical list which priorizes existing appointments such as a guardianship or POA for personal care, and then members of the individual’s family, such as the spouse, children, parents or siblings. SDMs appointed in this way must be at least 16 years old, themselves legally capable to make the decision, available and willing to assume the responsibility. If no SDM can be identified through the hierarchical list, then the PGT will make the decision.
The HCCA also makes provision for an individual to apply to the Consent and Capacity Board (CCB) to be appointed as a “representative” to make a decision or set of decisions for an individual under the Act.
Advance Care Planning
Issues related to advance care planning and the final stages of life are currently the subject of considerable discussion and debate. The HCCA strikes a careful balance on these issues. In brief, except for emergencies, informed consent to treatment must always be obtained from a patient or his or her SDM. Consent to treatments must relate to the patient’s current health condition. Where a patient is legally incapable, an SDM is required to determine whether the patient has expressed applicable prior capable wishes and where they exist, to follow them. If no prior capable wishes can be ascertained, the SDM must consider other wishes, values, and beliefs in giving or refusing informed consent. This emphasis on the role of the SDM in conveying and interpreting the prior capable wishes and in providing consent as particular issues arise differs in important ways from the status in other jurisdictions where “advance directives” may bindingly speak directly to the treating health practitioner.
The Role of the Public Guardian and Trustee
Responsibility for the administration of Ontario’s legal capacity and decision-making legislation falls under multiple statutes and government ministries. There is no single, central body with responsibility for all aspects of these laws. However, the PGT plays a very important role in this area of the law, performing the following statutory functions:
· acting as a decision-maker of last resort under both the SDA and HCCA, and as statutory guardian for property;
· appointing replacement guardians for property;
· conducting “serious adverse effects” investigations and applying to the court for temporary guardianships as appropriate, as is briefly described below;
· reviewing applications for court appointments of guardians, and making submissions or appearances as appropriate;
· reviewing accounts of guardians for property when they are submitted to the Court for approval;
· maintaining the registry of guardians; and
· at the request of the court, arranging for counsel (generally referred to as “section 3 counsel”) for individuals whose legal capacity is at issue in a proceeding under the SDA and who do not have legal representation.
Dispute Resolution and Rights Enforcement
There are three venues through which abuses of the law, violations of the provisions of the statutes or disputes may be addressed.
Serious adverse effect investigations: One of the responsibilities of the PGT is to undertake an investigation where there is an allegation that a person is incapable of managing either property or personal care, and that incapacity is resulting or may result in serious adverse effects. Notably, this provision is not restricted by whether or not a substitute decision-making arrangement is already in place. The PGT has broad investigative powers within this mandate. Where a PGT investigation provides the PGT with reasonable grounds to believe that a person is legally incapable and that prompt action is necessary to prevent serious adverse effects, the PGT must apply to the court for temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order (thereby terminating any existing power of attorney in that area).
Consent and Capacity Board: The Consent and Capacity Board (CCB) is established under the HCCA as an independent, expert administrative tribunal, with jurisdiction over issues raised by the HCCA, the MHA and determinations of capacity under the SDA. In particular, the CCB may hear applications:
· to review a finding of incapacity, whether by a health professional with respect to treatment, an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home, or by a Capacity Assessor with respect to property;
· to appoint a decision-making representative with respect to decisions to be made under the HCCA;
· for permission for an SDM to depart from the prior capable wishes of a person who lacks capacity;
· to determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made;
· for directions when the appropriate application of the HCCA with respect to a required decision is not clear; and
· for review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility.
Superior Court of Justice: In addition to its duties with respect to the appointment, variance and termination of guardianships, the Superior Court of Justice also has an important role in providing oversight of the activities of SDMs and resolving questions of interpretation. Notably, the Court may hear applications for the passing of all or part of the accounts of either a guardian or attorney for property. The Court also has broad powers to “give directions on any question arising in connection with the guardianship or power of attorney” [emphasis added] for either property or personal care. The Court has broad remedial powers when addressing applications for directions or for the passing of accounts. For example, upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian, or terminate the guardianship.
In understanding Ontario’s current systems in this area, it is important to know that they were originally designed in the context of an elaborate system of advocacy supports for persons who were affected by these laws. The Advocacy Act was intended to provide advocacy services to assist vulnerable individuals to express and act on their wishes, ascertain and exercise their rights, and speak on their own behalf. These advocacy supports would have acted as counterbalance to the relatively easy entry to substitute decision-making through powers of attorney, statutory guardianships, and automatic appointments under the Health Care Consent Act, 1996, assisting individuals to access the otherwise largely passive statutory mechanisms for asserting rights and reducing needs for monitoring and oversight functions.
B. Core Strengths and Shortcomings
The core strengths and shortcomings of Ontario’s laws are discussed in greater depth in each of the Chapters of this Interim Report, but are briefly summarized here to provide a sense of the overall functioning of these systems.
1. Strengths of the Ontario Approach
As is described briefly in the introduction to this Chapter, Ontario’s current law related to legal capacity, decision-making and guardianship is the result of an extensive and thoughtful law reform process spanning a number of years during the late 1980s and early 1990s. The result was legislation which was progressive and innovative in its approach to the issues, largely philosophically consistent and reasonably well coordinated. There are a number of aspects of Ontario’s current law which were far-sighted at the time, continue to be valuable, and should be preserved in any reforms.
Nuanced approaches to legal capacity: As noted above, Ontario has adopted a nuanced concept of legal capacity, with a domain and time-specific approach, and a presumption of capacity to contract as well as with respect to treatment, admission to long-term care and personal assistance services.
Emphasis on the importance of self-determination: Underlying the legislation as a whole is an effort to avoid unnecessary intervention in the lives of individuals, and to respect the right of individuals to make choices that others disagree with or that may be risky or unwise.
Accessible powers of attorney: In Ontario, powers of attorney are very simple and low-cost to create, making them a very easily accessible planning tool for Ontarians. They allow individuals to plan ahead, choose their own SDMs, and limit or direct how substitute decision-making powers are exercised.
Clear and appropriate duties for substitute decision-makers: Ontario’s approach to substitute decision-making is based for the most part in a “substituted judgment” approach, in which the SDM is required to stand in the shoes of the individual and to take into account their goals and values when making decisions. SDMs are required to support participation in decision-making by the individuals on whose behalf they act, and to encourage support from others who care for individuals. This approach attempts to avoid paternalism and to respect the individuality and goals of the individual to the greatest degree possible in the circumstances.
Balanced approach to advance care planning: As was noted above, Ontario’s approach to advance care planning differs in some important respects from that adopted in other jurisdictions. While these differences are sometimes a source of confusion, the balance struck in the Ontario regime between the importance of allowing individuals to express their values, beliefs and wishes and the risk of inflexibly binding individuals to poorly expressed or inapplicable directives had general (though not universal) support during the LCO’s public consultations, and appears to the LCO to appropriately address the competing needs of various stakeholders and on a sound principled basis.
Attention to procedural rights for persons lacking or perceived to be lacking legal capacity: The legislation makes provision for procedural rights whenever legal capacity is removed, a recognition that removal of the right to make one’s own decisions is a serious infringement on autonomy and an attempt to ensure that rights are removed only where justified and only where the individual has had an opportunity to challenge that decision.
Accessible adjudication by the Consent and Capacity Board: The CCB is unique in Canada, and overall provides accessible, timely and expert adjudication that attempts to balance the competing needs in this area of the law.
Important roles performed by the Public Guardian and Trustee: The PGT performs a range of important functions in the legal capacity and decision-making system, including its investigative powers in situations raising concerns of serious adverse effects, its role as a last-resort decision-maker, its review of guardianship applications and the maintenance of a register of guardians.
2. Shortfalls in the Current Ontario Approach
The LCO’s research and consultations also revealed a number of challenges in the Ontario approach to legal capacity and decision-making laws. In some cases, these result from implementation challenges; in others, they are shortfalls in design.
Confusion within a complex system: As the brief description above reveals, Ontario’s legal capacity, decision-making and guardianship regime is extremely complicated, with multiple layers, pathways, tests and institutions. Tests for capacity and mechanisms for assessment vary depending on the type of decision to be made, as do procedural protections and avenues for recourse. There are multiple types of appointment mechanisms, and considerable variance even within the processes for the appointment of a guardian. There is no central repository for knowledge about the system, and relatively little in the way of navigational supports. As a result, not only individuals and families but also service providers often find the system extremely confusing and difficult to navigate.
Misunderstandings and lack of knowledge about the law: Connected to the previous point, misunderstandings of the law are widespread among all sectors, and have a significant effect on the implementation of the law. Despite the important role played by SDMs, there is little in the way of structured information, tools or supports easily accessible to this group. Stakeholders have reported that misunderstandings of the law are widespread among health practitioners, and that there are shortfalls in assessments of capacity under the HCCA as a result.
Lack of clarity and standardization with respect to assessments of capacity: The nuanced approach to legal capacity that is foundational to this legislation means that assessments of capacity will necessarily differ somewhat depending on the nature of the decision to be made. However, the very different training and standards applicable to the different types of assessments result in the processes and quality that vary greatly, both between and even within a particular decision-making domain, adding to the confusion for people accessing the system and in the operation of the system.
Lack of oversight and monitoring mechanisms for substitute decision-makers: There are few means of monitoring the activities of SDMs once they are appointed. This is true for all SDMs, but particularly for those acting under a POA, who may be exercising a broad range of powers over a long term, with effectively no supervision. Combined with the lack of understanding of the law, this creates a situation where misuse of SDM powers or even abuse may be undetected, with negative effects on the lives of those individuals whom they are meant to assist.
Barriers to Capacity Assessments under the Substitute Decisions Act, 1992: In certain circumstances, the creation of or challenge to a guardianship under the SDA, requires a Capacity Assessment by a designated Capacity Assessor. These Capacity Assessments are provided on a consumer model, in which individuals seeking an assessment must locate and pay for an appropriate Capacity Assessor. This approach can result in considerable barriers either to entering guardianship or to exiting it, whether because individuals have difficulty in navigation, or because of cost.
Lack of meaningful procedural protections under the Health Care Consent Act, 1996: While the HCCA contains procedural protections for persons found to lack legal capacity with respect to treatment or admission to long-term care, these protections are largely ineffective. Provisions regarding rights information are poorly understood and unevenly implemented, so that individuals may have their rights to decide for themselves removed without being informed or having any meaningful recourse.
Inflexible appointment mechanisms under the Substitute Decisions Act, 1992, resulting in overly intrusive measures: While the underlying intent of the SDA appears to be to ensure that guardianship, as a very intrusive measure, is applied only where no less restrictive alternative exists, in practice the costly and relatively inflexible mechanisms surrounding guardianship mean that this goal is not consistently achieved: to avoid subsequent applications, guardianships sought and granted may be broader than actually needed.
Inaccessible rights enforcement and dispute resolution mechanisms under the Substitute Decisions Act, 1992: Most of the remedies available under the SDA to access rights or resolve disputes require application to the Superior Court of Justice, a costly, complicated and intimidating process that is practically inaccessible to many individuals and their families, so that the rights under the legislation often go unfulfilled.
The role of families: The current legislation gives priority to family members as the most appropriate substitute decision-makers, for example through the HCCA automatic appointment list, or the provisions regarding replacement statutory guardians. The requirements of this challenging role may be seen in many ways as naturally suited to the family, particularly since most substitute decision-makers carry out this role without compensation. However, as families change, decrease in size and become more geographically dispersed, the assumption that families can be consistently available or appropriate for this role increasingly comes into question. Further, despite the many challenges of the role, the current system provides very little information or supports to the family members who are expected to carry it out.
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