FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter IX
For the full text of draft recommendations, see the accompanying document
Main Point of the Chapter
Chapter IX considers reforms to make Ontario’s external appointments (guardianships) more flexible, more tailored to the particular needs of individuals, and more truly a last resort.
One of the values underlying the current legislation is the avoidance of unnecessary intervention. Currently, this value is imperfectly achieved. In particular, significant concerns have been expressed about the inappropriate use of guardianship. Guardianship is the most significant and least flexible form of intervention available in Ontario’s legal capacity, decision-making and guardianship system. The Interim Report contains many draft recommendations that aim to reduce inappropriate or unnecessary interventions and to safeguard autonomy. Chapter IX focusses specifically on changes to external appointment processes to help ensure that guardianships are used only where and to the extent that no other alternative is available and appropriate.
Currently, guardians are appointed in two ways. Guardians for either property or personal care may be appointed by the court. Statutory guardianship, an administrative mechanism, is available for property matters. A statutory guardianship results in guardianship by the Public Guardian and Trustee: family members may then make an application to the Public Guardian and Trustee to replace it as guardian. The majority of Ontario’s guardianships are entered into through the statutory guardianship process. Personal guardianships may be for specific areas of personal care only, while property guardianships are plenary.
Concerns have been voiced that the inflexibility and relative inaccessibility of external appointment processes may contribute to overly broad use of guardianships. Individuals under guardianship may face many barriers when attempting to regain their legal ability to make decisions independently. Many of the available mechanisms for challenging guardianships are passive, in that they require the person who has been found legally incapable to understand and actively assert their rights.
Statutory guardianship processes are intended to be relative simple and low cost as compared to court-based appointments. However, they tightly tie together the assessment of legal capacity not only with guardianship, but with guardianship by the Public Guardian and Trustee. There is no clear avenue for considering whether there may be a less intrusive means of meeting the individual’s needs.
The LCO’s draft recommendations focus on three goals:
1. identifying means to divert individuals from guardianship where appropriate;
2. limiting the scope of guardianships to those areas where decision-making assistance is truly necessary; and
3. limiting guardianships to those time periods when they are truly required.
Here is a summary of the LCO’s draft recommendations in this area:
34. Adjudicators considering the appointment of guardians be empowered to request submissions from any of the parties to the application on the potential for a less restrictive alternative or a report from a relevant organization on the circumstances of the individual in question, including the nature of their needs for decision-making, the supports already available to them and whether there are additional supports that could be made available to them that would obviate the need for guardianship.
35. Statutory guardianship be repealed and replaced by applications to the Consent and Capacity Board.
36. Adjudicators be required, when appointing a guardian, to consider whether that appointment should be for a limited time, be subject to a review at a designated time, or subject to a requirement that the guardian submit an affidavit at regular intervals indicating whether the need for guardianship has changed.
37. Court appointed guardians be required, upon request by the individual, to assist with the arrangement of re-assessments of capacity, no more frequently than every six months.
38. Guardians be required, should they believe an individual has regained legal capacity, to assist the individual to have the guardianship order terminated.
39. Adjudicators be permitted to make appointments for limited property guardianships where appropriate.
40. Adjudicators be enabled to appoint a representative to make a single decision related to property or personal care.
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