X. Expanding Choice of Decision-making Representative

X. Expanding Choice of Decision-making Representative 2017-03-03T21:54:14+00:00

A.    Introduction and Background

Under current Ontario law, where a person does not have the legal capacity to make a particular decision or type of decision and a substitute decision-maker (SDM) must be identified, in the vast majority of cases that SDM will be a member of the individual’s family or a close friend. There are a relatively small number of individuals who have as their SDMs a professional (such as a lawyer, for example), an organization (such as a trust company) or the government (through the Public Guardian and Trustee (PGT)). 

The Discussion Paper, Part Three, Ch II, raised the question of whether, in light of changing economics, family structures and demographics, Ontario ought to expand the range of options for appointments as SDMs available to individuals. This Chapter examines that issue. 

It should be emphasized that this discussion does not include supported decision-making arrangements, in which the individual makes the final decision with assistance from others. It is the view of the LCO that supported decision-making requires close, trusting personal relationships. While many persons granted powers of attorney (POAs) or appointed as guardians are in trusting relationships with the individual for whom they make decisions and may be selected for such reasons (as discussed below), this is not necessarily the case. Furthermore, where no such relationships exist or they are not appropriate as a basis for decision-making, the more formal accountability mechanisms associated with substitute decision-making are essential.
 

B.    Current Ontario Law

1.     Legislative Overview

The provisions of Ontario law regarding who may act as a substitute decision-maker are outlined at length in the Discussion Paper, Part Three, Ch. II.  This section is therefore intended only as a brief review, and not a comprehensive discussion.
 

Powers of Attorney

The grantor of a power of attorney (POA) under the Substitute Decisions Act, 1992 (SDA) faces only minimal restrictions on whom he or she may appoint in that role. These include requirements that the holder of the POA be of a minimum age, be legally capable, that the PGT may only be appointed with permission in writing, and, in the case of a power of attorney for personal care (POAPC) that certain conflicts of interest be avoided.[437] The SDA explicitly contemplates either a guardian or a power of attorney for property taking compensation for those services, in accordance with a prescribed fee scale; no such specific provision is made for compensation for SDMs for personal care.[438]

As was described in Chapter VII, as personal appointments, there is no oversight of persons acting as POAs per se. Where a professional such as a lawyer or accountant or a trust company takes on this role for compensation, the oversight mechanisms are those associated with the profession or institution, to the degree that they are considered applicable to the activity of providing substitute decision-making.

 

Court-Appointed Guardians

Guardians for property or personal care may be appointed through an application to the Superior Court of Justice. The court must consider the following statutory directions:

·       The court shall not appoint a person who provides health care or residential, social, training or support services to the incapable person for compensation, with limited exceptions, such as if the individual providing services is the person’s spouse or partner, or the attorney under the POA.

·       The court shall not appoint the PGT unless the application proposes the PGT as guardian, the PGT consents, and there is no other suitable person who is available and willing to be appointed.

·       The court shall consider whether the individual being proposed as guardian is already acting under a POA for the person, the wishes of the person involved if they can be ascertained, and the closeness of the relationship between the proposed guardian and the person.[439]

·       A guardian for property must reside in Ontario, unless the out-of-province resident provides security in a manner approved by the court for the value of the property to be managed.[440]

The Court does, in some situations, appoint trust companies to act as guardians for property, generally in cases where there are significant assets that require skilled management and often where there is discord within the family. 

 

Replacement of Statutory Guardians for Property

The process by which the PGT may be appointed as a statutory guardian for property is described in Chapter IX. Where the PGT is the statutory guardian for property, an application may be made to replace the PGT as guardian by the following persons:

·       the person’s spouse or partner;

·       a relative of the person;

·       an individual holding a continuing POA for property for that person, if that POA was completed prior to the certificate of incapacity and did not give the attorney authority over all of the person’s property; or

·       a trust company, if the person has a spouse or partner who consents in writing.[441]

The PGT reviews the application, and if the PGT is satisfied that the management plan submitted by the applicant is appropriate and that the applicant is suitable, the PGT shall appoint the applicant as the replacement statutory guardian. The SDA directs the PGT to consider, in reviewing the application, the legally incapable person’s current wishes if they can be ascertained and the closeness of the relationship between the applicant and the person.[442]

 

The Health Care Consent Act, 1996

The Health Care Consent Act, 1996 (HCCA) sets up a simple system for determining the identity of the SDM where one is required. The statute lists, in descending order of preference, those who may act as decision-makers where a person has been found to lack capacity for a particular necessary decision, as follows:

1.     the person’s guardian of the person, if the decision required falls within the guardian’s scope of authority;

2.     the person’s attorney for personal care, if the decision required falls within the attorney’s scope of authority;

3.     a representative appointed by the Consent and Capacity Board (CCB), if the decision falls within the representative’s scope of authority;

4.     the person’s spouse or partner;

5.     a child or parent of the person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of a parent;

6.     a parent of the person who has only rights of access;

7.     a sibling of the person;

8.     any other relative of the person (including those related by blood, marriage or adoption).[443] 

An SDM appointed through this hierarchical list must be

1.     capable with respect to the decision to be made;

2.     at least 16 years of age, unless he or she is the parent;

3.     not prohibited by court order from having access to or giving or refusing consent on behalf of the person;

4.     available; and

5.     willing to assume the responsibility.[444] 

If no person identified through the list meets the requirements, the PGT shall make the decision.[445]

 

2.     The Preference for Family and Friends

A review of the legislation quickly indicates a strong preference for family as SDMs. This is not surprising: the role is a difficult and demanding one which not infrequently spans many years and may be closely entwined with caregiving choices and responsibilities. Families can bring a deep personal knowledge of the individual to guide them with decision-making and assist with the practical and emotional aspects of the task. As well, they can often bring the profound commitment to the wellbeing of the individual that the role requires. It is a role imbued with trust and responsibility, and for many people, families are where they are most comfortable placing that trust and responsibility. 

Nonetheless, some individuals either do not have family or friends who are appropriate, willing or able to take on this role, or would prefer that the role be carried out by someone with professional skill and objectivity. Trust companies will act as POAs for property for some existing clients, and will also sometimes be appointed as guardians for property in court proceedings. Lawyers and accountants will also sometimes agree to act under a power of attorney for property for their clients. Trust companies are, of course, heavily regulated institutions. Lawyers and accountants are guided by their professional standards and are subject to the oversight of their regulatory bodies, although not necessarily with respect to this role. 
 

 

3.     The Role of the Public Guardian and Trustee

The PGT may become guardian for a person who lacks legal capacity in two ways:

1.     Statutory Guardianships for property: where a statutory guardianship results from a finding of legal incapacity to manage property under Part III of the Mental Health Act (MHA), or by a Capacity Assessor under section 16 of the SDA, the PGT will automatically become the guardian of property, unless there is an SDM already in place through a valid POA or guardianship.[446] The PGT will continue as guardian so long as one is required, unless a replacement is approved, as described above. 

2.     Appointment by the court: This Interim Report deals at greater length in Chapter VIII with powers of the PGT to conduct investigations where there are concerns that a person lacks capacity and serious adverse effects may or are occurring as a result. The important point here is that if, as a result of the investigation, the PGT has reasonable grounds to believe that the person is legally incapable with respect to property or personal care, and that the prompt appointment of a temporary guardian is necessary to prevent adverse effects, the PGT must apply to the Court for an order appointing it as temporary guardian.[447] More broadly, the Court is empowered to appoint the PGT as guardian either of property or personal care where the application proposes the PGT as guardian, the PGT consents, and there is no other suitable person who is available and willing to be appointed.[448]

The PGT will also act as a decision-maker of last resort under the HCCA, as described above, and may consent (in rare circumstances) to appointment under a POA. 

What is important to note from the above is that the PGT acts as decision-maker in two broad circumstances: where there is no other appropriate, available and willing person to act, and where, as with statutory guardianships and guardianships resulting from investigations, there is perceived to be a need for an entity that can act quickly to prevent dispersal of property (as with statutory guardianships) or to end ongoing abuse, neglect or exploitation. The appropriateness of having the PGT act as, essentially, an SDM of first resort through its automatic appointment through statutory guardianship is addressed in Chapter VIII. This Chapter will focus on the PGT’s role as an SDM of last resort. 

In 2013-2014, the PGT was acting for 21 clients under personal guardianship (3 on a temporary basis).[449] The PGT notes that the court will appoint it to make personal care decisions only “very occasionally” and in most cases to “remove the individual from a situation of harm or to prevent access by third parties who are abusing the person”.[450] 

It is more common for the PGT to act as guardian of property, most frequently through statutory guardianships. In 2013-2014, the PGT was a court-appointed guardian of property for 318 individuals. It was a statutory guardian for property for 4,881 individuals who had received certificates under the MHA, and for 5,567 individuals who had received a certificate of incapacity through a Capacity Assessment in the community. As well, it was acting for a small number of individuals (31) where a replacement statutory guardian had died, resigned or become legally incapable with respect to property management.[451] In 2013-2014, the PGT opened 1,888 new property guardianship files, 841 through MHA certification and 1,032 through Capacity Assessments.[452]

In 2011-2012, the PGT made 4,664 treatment decisions, under its responsibility to do so where there is no one who meets the HCCA requirements. 

The Annual Reports of the PGT point to a steady and significant increase in the caseload of the PGT since 2000, both in absolute numbers and the number of clients as a percentage of Ontario’s adult population,[453] likely reflecting Ontario’s aging population, as well as other demographic shifts such as smaller family sizes and increased family mobility. The PGT’s Annual Reports also point to increased complexity in the client files handled.[454]

 

C.    Areas of Concern

The LCO heard a number of concerns about the options for potential SDM appointees available to individuals.

The complexities and challenges of the role: The role of an SDM can be extremely challenging. Some lawyers commented to the LCO that if people really understood what they were taking on when they agreed to act under a POA, far fewer people would be willing to do this. In addition to the demanding legal requirements, SDMs often face many practical, emotional and ethical challenges. Decisions may be high-stakes, involve complicated information and require rapid response. Decisions may well need to be made over the objections of the person who is intended to benefit over the long-term, so that the emotional costs may be high: for example, while admission to long-term care may be necessary, it is very often not a welcomed decision. Not infrequently, despite the guidance of the legislation, it will be far from clear what the “right” thing is to do in a particular circumstance. And as discussed in Chapter XI, there are relatively few practical supports for those taking on the role of substitute decision-maker. 

In conversations with trust companies that act under POA for property or as guardians for property, these professionals also emphasized the challenges of the role, despite their expertise in financial management and the benefit of accumulated experience. The shifting nature of legal capacity, the complexity of the law, the difficulties of family dynamics and the challenging nature of some individuals’ needs all combine to make this a demanding role, even in the best circumstances. 

Individuals who are socially isolated: It is difficult to tell how many individuals there are who have no family members or friends who would both be appropriate SDMs and who are willing to act as such. Because of the PGT’s role as statutory guardian, one cannot conflate the PGT caseload with the population of individuals who require “last resort” decision-making. Throughout the consultations, the LCO repeatedly heard concerns about growing numbers of individuals who are socially isolated and have no appropriate person to act as an SDM if necessary. Families are more often geographically separated as work and individuals become increasingly mobile. Families are smaller, divorce is more frequent, and fewer individuals have children. As lifespans lengthen, older people may find themselves outliving their families and friends. As well, the challenges and stigma associated with certain types of disabilities may tend to leave these individuals at greater risk of social isolation. One long-term care home administrator with whom the LCO spoke indicated that she was aware of a long-term care home in which approximately one-third of the residents were having their property decisions made by the PGT.  

Constrained options: Powers of attorney offer individuals the opportunity to choose for themselves who will act for them, should such assistance become necessary. It seems reasonable that individuals, knowing their own needs and their social circle, will be in the best position to make good choices about SDMs. 

However, it was pointed out these are, in most cases, constrained choices. Few of us have a wide circle of support from which to choose. The people who are closest to us, or who we most trust, may not have the skills to manage complex property issues or the temperament to make high stakes treatment decisions, or may live too far away to be able to effectively fill the role. Or the family dynamics or dependency relationships may be such that the person creating the POA may not be comfortable to name the person(s) who would be most effective, because others would be hurt or upset by the choice. In some cases, the individual must make the least inappropriate choice within a set of suboptimal options. These kinds of constrained choices may contribute to problems once the POA comes into effect, whether in the form of attorneys who exercise their duties poorly or abusively, or conflicts within the family regarding the exercise of the POA functions. 

There are, therefore, individuals who are looking for SDM options beyond their family and friends, not because they are socially isolated, but because they simply have no one in their social circle with the necessary skills or temperament to fill this role, or because family dynamics make it impossible to fill the role without serious conflicts arising. 

At a focus group with persons with mental health disabilities, some participants noted that the HCCA, with its priorizing of family relationships, means that even if they do not feel that their family members would be appropriate decision-makers and have decided not to appoint them, those family members are automatically granted authority to make treatment decisions should they become legally incapable with respect to treatment. Individuals whose behaviour contributed to their mental health disability are then given authority over treatment of that disability, and considerable power over the individual. 

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.[455]

Many lawyers who work in this area told the LCO that they are very frequently asked to act as POAs. Some lawyers will take on this role, but many will not. Some trust companies reported being asked by clients to act as POAs for personal care, a role which they cannot take on, and which they would view as inappropriate for them even if it was permitted. 

The role of the Public Guardian and Trustee: Consultees appreciated the role of the PGT as a guardian of last resort, while also recognizing the natural limitations of that role, in that the PGT is not, as presently constituted, naturally placed to develop the kind of ongoing, intimate relationships that are the best foundation for acting in a substitute decision-making role. It was generally felt that there was a better fit between property decision-making and the nature of the PGT, than other types of decisions. 

The personal care decisions gap: As was noted above, while the PGT does regularly make treatment decisions where no person on the automatic HCCA list is willing and available, it is quite rare for the PGT to be appointed as guardian of the person: at the time of the last annual report, the PGT was acting in this role for only 21 individuals in the province of Ontario. This likely reflects the deeply personal nature of this type of decision-making and an understandable reluctance to have government involved in this type of role. 

A number of service providers identified a gap in personal care decision-making. Trust companies pointed out that they not infrequently found themselves acting as a property decision-maker without anyone at all to consult regarding personal care issues, and identified this as a significant challenge in achieving the overall goals of the legislation. Long-term care home providers identified a similar gap, with residents of long-term care homes who had no one to engage on their behalf in any kind of broader care planning. Both types of service providers emphasized the importance of having someone who knows the person, cares about them, and can advocate on their behalf when necessary. As one long-term care home service provider put it, it is not just that there is no one to make decisions, but that there is no one who cares about the individual to make decisions. 

The kind of caring that families can provide at their best is difficult to replicate. While the options discussed later in this Chapter may not be able to completely fill this gap, they may be able to provide some skill and knowledge to guide personal care for those individuals who currently lack any supports at all in this area. 

The LCO was pointed to the growing number of businesses providing “elder care planning”, “transition planning” or “seniors care management” services as to some degree informally moving into this gap. These businesses may assist individuals or their families in developing and monitoring care plans; navigating the health, long-term care or community services systems and assisting with accessing services; providing counselling or advice where difficult choices must be made (for example, whether to move to long-term care or remain in the community); and providing practical supports to carry out decisions. 

Abuse, Neglect and Conflicts of Interest:  Chapter VII dealt at length with concerns about abuse and misuse of substitute decision-making powers. Where there is vulnerability and an opportunity for personal gain, there will always be a risk of abuse. This is true whether the SDM is a family member, a friend or a professional. It is therefore always important, when considering who may act in a substitute decision-making role, to take into account conflicts of interest and the risk of abuse. 

The PGT and trust companies are obviously heavily regulated institutions, which reduces the chances of misuse of power for personal gain. Current legislation already prohibits the Court from appointing as a guardian any person who provides health care or residential, social, training or support services to the incapable person for compensation, unless that person is also the incapable person’s spouse, partner or relative, and there are similar restrictions on who may be appointed to act as a power of attorney for personal care.[456] Comments on potential options for expanding who may act in a decision-making role frequently focussed on risks of abuse or neglect arising from economic motivations. While the current situation results in shortfalls in the provision of decision-making for those who need it, there was a high degree of confidence that the PGT and trust companies perform their roles in a trustworthy fashion, and commentators felt that new options ought to be structured to fill the gap without substantially comprising the safety of affected individuals.

 

D.   Applying the Frameworks

Both of the LCO Frameworks for the law as it affects older adults and the law as it affects persons with disabilities identify a principle of promoting participation and inclusion. The definition of the principle in the Framework for the Law as It Affects Older Adults emphasizes the “right to be actively engaged in and integrated in one’s community”, as well as the importance of removing barriers of all kinds to such involvement, particularly for those who have experienced marginalization and exclusion. The Framework for the Law as It Affects Persons with Disabilities identifies the importance, not only of designing inclusively and removing barriers to participation and inclusion, but also of actively facilitating involvement. 

The Final Report for the project on the law as it affects persons with disabilities noted,

Persons with disabilities have often experienced physical or social exclusion or marginalization, whether arising from attitudinal, physical, social or institutional barriers…. [P]ersons with disabilities continue to be pushed to the margins in a variety of social areas, including employment, education and community life. The principle of inclusion aims to redress this exclusion, and make persons with disabilities full members of their communities and society at large.[457]

The Report accompanying the Framework for the Law as It Affects Older Adults makes a similar point, drawing on the WHO’s Active Ageing Policy Framework’s broad approach to participation as including a right to be active in all aspects of community life.[458]

Continued shortfalls in the inclusion of persons with disabilities and older adults in social and community affairs lie at least partially at the root of the lack of social networks and supports that some older adults and persons with disabilities face, and which manifest in a lack of willing, available and appropriate family and friends to act as SDMs. 

The principle of fostering autonomy and independence includes, for older adults, “the right of older persons to make choices for themselves”, and for persons with disabilities “the creation of conditions to ensure that persons with disabilities are able to make choices that affect their lives”.[459] In general, the principle of autonomy and independence points to the importance of promoting the ability of persons with disabilities and older persons to have and make meaningful choices about the appointment of an SDM. The current legislation reflects this principle in a number of ways. The emphasis in the legislative scheme on personal appointments reflects the importance of individuals choosing their SDMs for themselves. The SDA directs the PGT, when reviewing applications to replace it as statutory guardian, to consider the legally incapable person’s current wishes if they can be ascertained,[460] and the Court is directed to a similar consideration in the case of court-appointed guardians.[461]

For isolated and marginalized individuals, the connection between the principle of participation and inclusion and that of independence and autonomy becomes very clear. Without inclusion in the community and the social supports and networks that provides, these individuals have no meaningful choice as to who will assist them with decision-making if that need arises, something that is central to their autonomy. 

Consultees have raised grave issues regarding individuals who have no one to ascertain and speak for their personal care needs. Without a person who has a duty to pay attention to their needs and wants, encourage their participation in decision-making to the greatest degree possible, and ensure that necessary decisions are made and communicated, these individuals are at risk of being not only misunderstood but of having their needs disregarded because there is no one to understand and communicate them. This is an affront to the dignity of individuals who are not able to make decisions independently, but who nonetheless retain the right to be treated with respect and to have their values and preferences ascertained and taken into account. 

As discussed above, issues related to choice of legal representative are not of concern only to those who are socially isolated or marginalized. Because of the complex and challenging role of SDMs, even individuals with thriving social networks may find it difficult to identify someone with the requisite skills, temperament and time to undertake this responsibility. For these individuals, expanding options for who may act as an SDM may also contribute to greater autonomy. 

It is important to remember as well that even with expanded options, some individuals are always likely to have few choices – persons whose financial means are too limited to be of interest to for-profit service providers, and who are, through their circumstances or the nature of their disability, hard to serve and who require careful and compassionate attention. A “market-based” approach to increasing choice of SDM may have an unintended side effect of reducing service to these most vulnerable individuals, unless appropriate attention is paid to ensuring that their needs are met in a professional and ethical way. 

As many have pointed out, any expansion of options must pay careful attention to the principle of recognizing the importance of security or facilitating the right to live in safety. Expanding options may promote safety and security, as individuals may not be constrained to appoint persons who they are aware may not have the skills or temperament to perform the role well, for lack of other options – or worse yet, have their decision-making default to inappropriate persons under the HCCA hierarchy. However, as there is always risk associated with decision-making arrangements, it is important that options to be made available to individual be identified and designed in a way that carefully balances the benefits of increasing choice with risks of abuse or misuse. In particular, issues related to conflicts of interest and of oversight are important.

 

E.     The LCO’s Approach to Reform

The LCO has identified the following five foundations for law reform on this issue.

All those who lack legal capacity and require a substitute decision-maker to make necessary decisions should have meaningful access to this type of assistance. Those individuals who lack legal capacity and require substitute decision-making assistance to make decisions that are necessary to their wellbeing should have access to someone who can take the time to ascertain their needs and goals, has the ability to make and communicate decisions as needed, and has the skills and knowledge to do so in compliance with Ontario’s laws. 

The needs of individuals who lack or may lack legal capacity are diverse, and can be best met by providing a range of options. The substitute decision-making needs of a wealthy senior with a complicated family structure, of a widow with a fixed income living in long-term care with her surviving family members half a continent away, or of a socially marginalized low-income person with a significant mental health disability are likely to be very different. All may have difficulty identifying someone with whom they have a close personal relationship and who is willing and appropriate to act as an SDM if needed, but the type of arrangement that would meet their needs may differ significantly. Currently, the PGT may be the default option for all of them, but a wider range of options may better serve their needs. 

While family remains important, family members are not always the best choices for SDMs. As has been emphasized throughout this Interim Report, the role of SDM is a demanding one. Even loving family members may not be suited to this role. The common conflation of caregiving with substitute decision-making is often unhelpful: while the two roles may go together, it is not necessary or even always best that they do so. The preference for family in the current legislative scheme is understandable, and it is likely that for most individuals, family members will remain the first choice for SDMs. However, the current tacit assumption that family members can adequately fill this role in the overwhelming number of cases, with only a few isolated cases falling within the purview of the PGT, is not likely to bear up under current social and demographic trends, and fails to meet the needs of a not insignificant minority of Ontarians. 

The PGT has a vital role in providing professional, ethical and expert substitute decision-making for individuals for whom other options are not appropriate or available. As something of a corollary to the previous point, there will likely always be some set of individuals for whom other options are not appropriate or available – for example, because they do not have funds to pay for services, or because the nature of their needs is too complex or demanding for most service providers. It is important that the PGT remain available to provide the decision-making services that they need to such individuals.  

There are always risks of abuse and misuse of powers associated with substitute decision-making: an expansion of options for who may act must take careful account of these risks. This includes considering the incentives that are built into a particular type of SDM arrangement, the risks associated with conflicts of interest, power imbalances, and the availability of meaningful oversight and accountability mechanisms.  

 

F.     Draft Recommendations

1.     Enable Individuals to Exclude Family Members from Appointment 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. 

As was noted above, 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. Expanding the options for SDMs to allow a broader role for professional representatives and community organizations may reduce the number of situations in which this occurs. However, the problem is integral to the structure of the HCCA. 

In its 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.[462] 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.[463] 

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. 

DRAFT RECOMMENDATION 41:
The Ontario Government amend the Health Care Consent Act, 1996 to enable individuals who meet the standard for legal capacity to create a power of attorney for personal care to exclude a particular individual or individuals from appointment under the hierarchy set out in section 20 of that Act, through a written document meeting the same execution requirements as a revocation of a power of attorney for personal care under section 53 of the Substitute Decisions Act, 1992.

 

2.     Focusing the Public Guardian and Trustee’s Substitute Decision-making Role

The LCO believes that the government maintains a responsibility to ensure that Ontarians have access to trustworthy and competent substitute decision-making when they require it. While relatively few Ontarians would identify government as their ideal choice for a substitute decision-maker, preferring that role to be filled through a more personalized relationship, participants in the LCO’s consultations recognized the value of the PGT as an expert, professional and trustworthy decision-maker for those whose needs cannot be appropriately met elsewhere. There are individuals who, because of their social isolation and low-income do not have access to any other options when it comes to substitute decision-making. There are other individuals who do have family members, but where the family dynamics are so negative or skill levels so low as to put the wellbeing of the individual at risk. There are others whose needs are so challenging that other options are not viable and the expertise and professionalism of the PGT is required to ensure the provision of appropriate substitute decision-making.  These individuals, who cannot be adequately served in a for-profit model or by those without considerable expertise in and dedication to addressing the challenging ethical and practical issues that may arise in substitute decision-making, should, in the view of the LCO be the core focus of the PGT’s substitute decision-making activities. It is in this sense that the LCO believes that a “last resort” role for the PGT should be understood: not solely as a backstop for situations where there are no alternatives at all, but as a provider of expert services for those whose needs cannot be appropriately served by other options. As referenced in Chapter IX, there may also be urgent situations where it may be appropriate for the PGT to step in on a temporary basis, while other options are put into place. 

A comprehensive review of American public guardianship programs pointed to both the importance and the challenges of this role:

Guardianship is not social work, although it involves important elements of social work. Conversely, guardianship, a product of the courts, is not completely law. Guardianship is an amalgam of many disciplines: law, medicine, social work, and psychology. Most importantly, guardianship deals directly with human beings, society’s most vulnerable human beings. Yet those under the care of the state often are still not afforded basic considerations. Living the decisional life for these unbefriended people is perhaps the most important and complex state function performed. Guardianship remains shrouded in mystery for most of the public, yet the public guardian performs a highly important state function for the most at-risk population, individuals who deserve no less than excellence from public servants. [464]

The LCO recommends that the PGT continue to fill the vital role of SDM of last resort, understood in the sense described above. The creation of other options for those for whom they are appropriate, together with the curtailment of the role of statutory guardianship in Ontario’s system, should reduce some of the pressures currently facing the PGT and enable a renewed and strengthened focus on the needs of those who truly require the assistance of the PGT.

Should statutory guardianship be abolished, as the LCO has recommended in Draft Recommendation 35, to enable this focus for the PGT, it would be important for the legislation to include clear statements of the purpose of the PGT with respect to guardianship, and the criteria under which it should be appointed. 

DRAFT RECOMMENDATION 42:
Government amend the Substitute Decisions Act, 1992, to clearly identify the role of the Public Guardian and Trustee providing expert, trustworthy, professional substitute decision-making for those who do not have access to options that will appropriately meet their decision-making needs, and to set out criteria and processes to enable the Public Guardian and Trustee to fulfil this mandate. 

 

3.     Regulated Professional Decision-making Representatives 

Should Professional Decision-making Representatives Be Encouraged? 

As was noted above, individuals or institutions can act as SDMs for profit under POAs for property. Many trust companies provide a highly regulated and expert SDM service to small numbers of clients. Individuals do appoint various professionals, most commonly lawyers and accountants, to act as their POAs for property. 

Individuals may see professional decision-making representatives as an appealing source of substitute decision-making in two circumstances.  Where individuals have no trusting relationship with an appropriate person who is willing and able to act on their behalf, professional decision-making representatives might be an alternative to the PGT. As well, some might find the idea of a professional decision-making representative appealing because their specialized focus gives professional decision-making representatives the opportunity to develop experience and expertise in fulfilling this role, and they are independent of negative family dynamics. However, there are currently a number of factors limiting the use of such professional services. 

Individuals who are seeking to appoint a professional as SDM have no easy way of finding such services. Trust companies generally offer their services as POA for property to only a limited range of existing clients, and so are not available to many individuals who might see professional decision-making representatives as a desirable option. While some lawyers or accountants will act as POA for property, many will not, and so individuals may have to conduct extensive searches to find one that will act, and will have to determine for themselves whether that professional has the requisite skills and ethical compass.  

Further, there is no clear provision for professional SDM services with respect to personal care. As was noted above, several consultees identified a troubling gap in the provision of substitute decision-making assistance in the realm of personal care for individuals who do not have a relationship with someone who is willing and able to take on this role. 

Perhaps most importantly, there are significant risks associated with for-profit substitute decision-making. The risks include not only substantial financial loss and life-long impoverishment, but also significant violations of the fundamental rights of individuals, carried out to maximize profit and minimize risks of detection of misuse of power. For-profit substitute decision-makers will of course seek to make meaningful profit from their work: the natural incentives to do so are to reduce the amount of service provided and to increase fees. The risks are particularly high because the client does not have the ability to terminate the arrangement or to effectively supervise the substitute decision-maker. For those individuals seeking for-profit substitute decision-making because they are socially isolated or have no family members nearby, there are effectively no eyes on the activities of the professional. In the United States, where professional fiduciary programs are very common, there have been repeated concerns about unethical behavior on the part of some subset of providers.[465] 

The lack of oversight of professional decision-making representatives may quite validly deter potential clients from pursuing such a route: whatever the limitations of family or of the PGT, it may well be preferable to rely on the ethical and affective bonds of the one or the fundamental guarantees associated with services provided by government, as opposed to the unknown and potentially grave risks associated with unsupervised individuals motivated solely by profit. 

Finally, it should be acknowledged that professional decision-making representatives are likely to appeal to a relatively small segment of those who require substitute decision-making: those with the financial means to make it reasonably remunerative for a professional to provide this type of service. Notably, for both trust companies and lawyers, these types of services are just one part of a larger business plan. Outside of larger centres, it may not be feasible for professionals to specialize in this work. This is particularly true given that any type of regulatory scheme would inevitably increase the costs of running such a business. 

It is important to keep in mind that substitute decision-making for profit exists in Ontario now. Professionals such as lawyers, accountants and others take on this role, and are guided in it by the professional ethics, standards and oversight mechanisms associated with their profession, to the extent that they are applicable. The issue under consideration is whether steps should be taken to increase the ease of access and to make such services more appealing to the public by provision of oversight and standards. 

On balance, the LCO believes that a well-supervised and regulated program for professional decision-making representatives could support a broader range of trustworthy options for persons to act as SDMs. Such a program could meet a need for expert and professional SDM services for those who have the means to pay for such services and who either do not have appropriate trusted others to fill this role or who prefer to have such assistance provided by a neutral and expert third party. It would provide individuals with a practical alternative between the appointment of family and friends, and the use of the PGT, and help to ensure that the resources of the PGT can be focussed on those who most truly need its services.

However, the LCO strongly believes that it is essential that such a program be, in fact, well supervised and regulated. Otherwise, such a program could easily amount to a dereliction of care and a license to abuse a population that is by its very nature vulnerable. The LCO’s draft recommendation to this effect must be understood in this context: the associated safeguards should be regarded as a minimum level of oversight. Without such safeguards, the status quo, even with its acknowledged limitations, is preferable for individuals directly affected. Further, it is unlikely to provide a sufficiently appealing option for many individuals considering their alternatives. Therefore, government may wish to conduct further research to determine whether the benefits of increased options for the public and of increased focus for the PGT would be outweighed by the cost of adequate safeguards. 

 

Appropriate Form of Regulation

A preliminary question is whether regulation should take the form of a licensing regime, in which professional decision-making representatives could not legally practice without meeting specified requirements, or a certification approach, in which professionals may voluntarily seek certification from a self-governing entity, with certification providing reassurance to the consumer that the person meets certain qualifications and is subject to the code of conduct, rules, and other guarantors of safety and quality provided by the certifying agency.   

The Manitoba Law Reform Commission (LRC), in its report on Regulating Professions and Occupations[466] proposes a cost-benefit analysis when considering whether to regulate an occupation, weighing the need for protection of the public from the improper performance of the service against the costs of regulation.[467] 

It must be recognized that there are incremental “costs” associated with any form of regulation, whether it be licensing, certification or some other form of regulation.  There are obvious costs, such as the resources required to administer the regime (for example, the costs associated with operating the regulatory office) that will have to be borne either by the taxpayer or indirectly by the purchasers of the service depending on the regulatory model. The Manitoba LRC also pointed to less often considered costs, such as increased prices for consumers: a requirement that no one but a licensed professional can perform a service limits competition and essentially creates a monopoly of those who can offer the service, thereby adversely affecting the pricing for the service.[468]  This can create a barrier to access for those less financially able. A certification regime will limit competition less than licensing and thereby be less costly, as consumers are able to hire either a certified or uncertified person to do the work. The Manitoba LRC therefore recommended that licensing should be used “sparingly and cautiously”, and only where the threatened harm to the public from inadequate performance of the service is serious.[469]

The LCO believes that a professional decision-making representative regime should be subject to licensing, rather than simply certification. As has been highlighted throughout this Interim Report, there are significant and substantial risks of harm that are intrinsic to substitute decision-making, due to the combination of the population being served, the basic rights at issue, and the access substitute decision-making provides the SDM to financial or other benefits of the individual served. This recognition underlies the very existence of Ontario`s legal framework in this area, and the role allocated to the PGT. The combination of these attributes with the profit motive indicates a need for great caution and care. Further, without regulation and oversight, professional representatives are not likely to be taken up to any great degree, due to valid consumer concerns about abuse. While regulation may increase costs of access, the LCO proposes that the PGT remain responsible for service for those who are not best served by other means: the regulated profession should not be the sole means of access to these kinds of services, but part of a mix that will continue to include families, the PGT and trust companies, which are already thoroughly regulated. 

The question that follows is who should be responsible for oversight. The two main options are government, either through a government Ministry or an agency such as the Financial Services Commission, or self-regulation, such as the Law Society of Upper Canada or the regulated health professions provide. 

It should be noted that while self-regulatory entities are funded by the members that they regulate, direct oversight by government or a government agency may be funded by, for example, the levying of fees to regulated individuals. That is, a choice between models is not automatically a choice between self-funding or taxpayer funding. 

While all models of regulator have government oversight, self-regulatory models are one step removed from this oversight compared to situations where the government or one of its agencies is directly regulating the activity.  The Manitoba LRC in its 1994 report examined the advantages and disadvantages of the self-regulatory model. It identified that in some circumstances, the profession itself may be in the best position to create the rules that would govern the profession, saying, “Compliance [with those rules] may also be more likely if self-government results in a sense of community among practitioners which strengthens a commitment to high standards of competence and ethical conduct”.[470]  This more clearly applies to professions that are relatively “mature” in the sense of there being an established community of persons practising the particular activity, a history of ethical conduct and a well-understood and established standard of practice, than to a situation such that under consideration, where a new profession is essentially being created.    

As well, the Manitoba LRC notes that for self-regulation to work, there must be a “critical mass” of practitioners to pay for and take on the tasks necessary for a self-regulatory entity to function.  The Health Professions Regulatory Advisory Council, which provides advice to the Minister of Health and Long-Term Care if so requested on whether unregulated professions should be regulated,[471] considers whether “the practitioners of the profession are sufficiently numerous to support and fund, on an ongoing basis, the requisite number of competent personnel to enable the regulatory body to continue to discharge its functions effectively.”[472]  

A key disadvantage of self-regulation identified by the Manitoba LRC is the potential for the regulator to experience conflict between the self-serving interests of the profession versus the broader public interest.  In this regard, the Health Professions Regulatory Advisory Council examines whether “the profession’s leadership has shown it will distinguish between the public interest and the profession’s self-interest.  Regulatory colleges are mandated to privilege the former over the latter”.[473]   

In examining the American experience in the larger states, most have some type of direct government oversight of professional guardians. The state of California has established a Professional Fiduciaries Bureau, to license, oversee and regulate professional fiduciaries.[474]  In Florida, the Statewide Public Guardianship Office is responsible for registration of Professional Guardians and for receipt and review of annual reports and Guardianship Plans. In Texas, oversight of professional guardians is carried out through a branch of the judiciary, the Judicial Branch Certification Commission, which is also responsible for oversight of other professions associated with the courts, such as court reporters, process servers and court interpreters.[475]

Overall, it appears to the LCO that in this situation, where the intent of regulation is essentially to establish and support the development of a relatively new or little considered service or profession, a self-regulatory approach is not particularly practical, at least not at this point in time, and that some form of direct regulation, perhaps similar in some key aspects to that developed for Capacity Assessors, should be developed.

 

Safeguards of Quality and Against Abuse

Finally, careful consideration must be given to the establishment of safeguards for this service, both as a means of protecting users and to develop this as a credible alternative to the status quo in the minds of potential users. 

As was briefly referenced above, it is very common in the United States for guardianship to be exercised by corporate employees or by other professionals or practitioners.[476] The LCO has examined the experience in the United States for lessons learned in this respect. The regimes for regulating professional guardians/professional fiduciaries vary considerably from state to state, from very informal to highly regulated. Some of the common safeguards and structures associated with these programs, as operated in larger states with populations more comparable to those of Ontario, are identified below. 

American regulatory regimes for professional guardians tend to be designed to capture those individuals and organizations that are carrying out these roles as a primary business, and to exclude family members or friends who are receiving some compensation for their responsibilities or lawyers or other professionals who may occasionally take on this responsibility. Generally, regulation applies to those who are providing services for compensation to multiple individuals.  

The National Guardianship Association (NGA), founded in 1988, plays an important role in this area,[477]  with a mission to “advance the nationally recognized standard of excellence in guardianship”. The NGA has developed national practice standards for individuals and for agencies. It has advocated for guardianship certification and has created a Centre for Guardianship Certification, through which individuals may be certified as a National Certified Guardian or a National Master Guardian. It provides considerable professional development opportunities for guardians. Should government decide to proceed with the development of professional fiduciaries, the NGA may be of considerable assistance, for example, as a source of standards. 

Pre-certification requirements: While small jurisdictions may treat professional guardianships relatively informally, relying on court supervision and informal networks as safeguards, larger states where there are many professional guardians acting tend to have relatively thorough pre-certification requirements. 

Education, training and certification:  Many states require completion of education or training, completion of a certification exam, or both. For certification of a professional guardian, Florida requires guardians to complete a minimum of 40 hours of training, and to score a minimum of 75 per cent on a Professional Guardian Competency Examination, which is administered by the University of South Florida, or receive a waiver from the Statewide Public Guardianship Office. In California, applicants must complete 30 hours of education in approved education courses.[478] In Texas, applicants are required to have at least two years of relevant experience or have completed an approved course, and to successfully pass an approved exam after no more than four attempts.[479]

Credit and criminal history checks: For certification, guardians may be required to undergo a criminal records check, a credit check or both. Florida requires all professional guardians to provide credit and criminal records checks at their own expense, as part of their requirements for practice.[480] California stipulates that the Professional Fiduciaries Bureau not issue a license to any person who has  been convicted of a crime that is “substantially related to the qualifications, functions, or duties of a fiduciary”, who have “engaged in dishonesty, fraud, or gross negligence in performing the functions or duties of a fiduciary”, who have been removed as a fiduciary by a court for breach of trust committed intentionally, with gross negligence, in bad faith, or with reckless indifference, or who have “demonstrated a pattern of negligent conduct”.[481] Texas includes criminal record provisions, but not credit checks.[482]

Bonds or insurance:  Some states require guardians to have insurance or to post bonds. For example, in Florida, all professional guardians must post a blanket bond of a minimum of $50,000 that covers all wards under the guardians care.[483] In Washington State, the professional guardian must post a bond in an amount determined by the court for each ward, though that bond may be waived for clients with very low levels of assets.[484]

Registration: Where certification is required, a registry of certified guardians is generally maintained. For example, in California, licensing is carried out by the Professional Fiduciaries Bureau. The PFB maintains a list of qualified, licensed private professional fiduciaries, which can be found on their website.[485] It is also required to provide information regarding any sanctions imposed on licensees, including, but not limited to, information regarding citations, fines, suspensions, and revocations of licenses or other related enforcement action taken by the bureau relative to the licensee.[486] 

Ongoing duties and responsibilities: In addition to pre-certification requirements, states may also impose ongoing duties to ensure standards and enable monitoring. 

Continuing education: Following the completion of the initial 40 hours of mandatory training, professional guardians in Florida must complete 16 hours of continuing education every two years. The Florida Guardianship Association approves continuing education activities for this purpose.[487] Similarly, in California, to renew a license, applicants must complete 15 hours of continuing education,[488] in an education course approved by the Professional Fiduciaries Bureau.[489]

Regular reporting:  Professional guardians in Florida must register annually with the Statewide Public Guardianship Office. As part of this registration, they must provide regular credit and security checks for themselves and their employees, and evidence that they have completed their required continuing education requirements.[490] For each individual to whom they provide services, both an Initial Guardianship Report and an Annual Guardianship Plan must be filed. The Annual Guardianship Plan includes an Annual Accounting Report, as well as information about the residence, social condition and mental and physical health of the ward. [491]

In California, licensees are required to keep complete and accurate records of client accounts, and to make those records available for audit by the bureau.[492] They must also file an annual statement with the PFB, which provides a range of information, including whether the licensee has been removed as a conservator, guardian, trustee, or personal representative for cause;  the case names, court locations, and case numbers for all matters where the licensee has been appointed by the court; whether she or he has been found by a court to have breached a fiduciary duty; any licenses or professional certificates held by the licensee; any ownership or beneficial interests in any businesses or other enterprises held by the licensee or by a family member that receives or has received payments from a client of the licensee; and whether the licensee has been convicted of a crime.[493]

In Texas, guardians must file an annual report indicating the number of wards under their care, the aggregate fair market value of the property of all wards, money received from the State of Texas for guardianship services and the amount of money received from any other public source. Following certification, guardians must submit annual renewal applications.[494]

Professional standards: Florida sets standards for profession guardians through its statute. For example, guardians must visit each ward once every four months to ensure that their needs are being met.[495] In California, the Professional Fiduciaries Bureau is responsible for the development of a code of ethics for fiduciaries.[496] In Texas, the Judicial Branch Certification Commission is responsible for the creation of the Minimum Standards of Guardianship Services, with which guardians must comply.

These jurisdictions provide some examples of screening and oversight mechanisms for professional fiduciaries. These designation and oversight mechanisms are in many ways reminiscent of those employed for Capacity Assessors designated under the Substitute Decisions Act, 1992, as described in Chapter V. To be included in the list of designated Capacity Assessors maintained by the Capacity Assessment office, Capacity Assessors must meet minimum educational requirements, complete a qualifying course on which they are evaluated, complete regular continuing education courses, comply with government standards, and regularly submit copies of assessments for review and feedback. 

Minimum educational and training requirements for certification, together with ongoing professional development obligations are a sensible approach to ensuring that professional fiduciaries do indeed have the specialized skills which are one of the main proposed benefits of such a scheme. Clear standards are a basis for accountability: as was noted above, the standards created by the National Guardianship Association may form the basis for the creation of standards for an Ontario system. As well, recording and reporting requirements are a basic mechanism for oversight where professionals are handling funds for vulnerable individuals. 

DRAFT RECOMMENDATION 43:
Provided that the safeguards identified below or their equivalents are implemented, the Government of Ontario explore the feasibility of establishing a licensing and regulatory system for professional decision-making representatives, with the following characteristics:

a)     Licensing and oversight focus on those providing these services as a core business, and acting for multiple individuals.

b)     Licensing and oversight be provided, at least during the development of the profession, from within government or through a government agency potentially funded through fees.

c)      Licensed professional representatives be permitted to make both property and personal care decisions, and to be appointed either personally or externally.

d)     The oversight regime include the following safeguards and assurances of quality:

i.          Minimum requirements for skills and training;

ii.          Ongoing professional development requirements;

iii.          Requirements for credit and criminal records checks;

iv.          A set of standards of conduct and quality, including prohibitions on specified conflict transactions;

v.          Record keeping requirements;

vi.          Annual filing requirements; and

vii.          Requirements for bonds or insurance.

 

4.     Exploring a Role for Community Organizations

Should Community Organizations Act as Decision-making Representatives?

For-profit professional representatives may provide appropriate options for individuals with sufficient property to justify the expense. It has been suggested that community organizations could provide an additional non-profit option. As organizations that are close to the community, provide a range of supports, and that have the ability to develop a deep understanding of the contexts and needs of the particular populations they serve, community organizations may have the capacity to provide a more personal and holistic approach to the role of SDM for their populations, and to serve populations that would not be able to access for-profit services or that might be challenging for families to adequately support. 

Community organizations in Ontario do already act as trustees for benefits under the Ontario Disability Support Program,[497] as well as for Canada Pension Plan (CPP) and Old Age Security (OAS) benefit.[498] In some ways the function of these informal trustees are analogous to the duties that may be undertaken by a guardian for property or a person acting under a POA for property, although it should be noted that these trustees are dealing only with one relatively limited income source, and that the nature of the ODSP program creates some opportunity for monitoring and for reasonably timely corrective action should an informal trustee misuse funds. While concerns have been raised about various aspects of the ODSP informal trusteeship provisions, including insufficient oversight and a lack of effective recourse for individuals to challenge the appointment of a trustee, the LCO has heard that some community organizations are able to provide very good informal trusteeship services as part of a more holistic package of services that they provide to clients that they know well and regularly interact with. This is certainly the intent of the federal Supporting Homeless Seniors Program, which aims to assist vulnerable seniors in receiving their federal income benefits by expanding “the capacity of reputable organizations and municipalities already on the front-lines of service delivery to homeless seniors to help them apply for and administer their CPP, OAS and/or GIS benefits”.[499] It is also true, however, that community organizations may be reluctant to take on this role due to pressures on budgets or staff. 

The Bloom Group, operating in British Columbia as a provider of mental health and supportive housing, emergency shelters for women and children, and hospices, largely in Vancouver’s Downtown Eastside,[500] is an example of a community organization providing this type of day-to-day decision-making, as a trustee for federal pension programs. It receives referrals from the British Columbia Public Guardian and Trustee and from social services.[501] In the fiscal year 2013-2014, the Bloom Group managed the finances of 858 individuals, described as “seniors who are vulnerable to financial abuse and people who have physical and/or mental constraints”.[502] The organization does charge a fee for its services, but notes that it keeps its fees as low as possible, so that individuals with limited incomes can access these services, and that it invests the fees back into the program. The program’s Adult Guardianship Workers work with mental health teams, care facilities and other community groups as necessary. The Adult Guardianship Workers provide the following services, among others: 

·       development of a functional budget and plan for debt reduction, in co-operation with client, based on income, monthly expenditures, debts and saving for future needs;

·       bill payments such as rent, meals, utilities and pharmacy;

·       facilitation of income tax filing and filing back taxes;

·       liaison with community care workers to provide financial support to, and for, clients when appropriate;

·       monthly statements upon request; and

·       application to all possible income such as Guaranteed Income Supplement and the Disability Tax Credit.[503]

Some community organizations that the LCO spoke with during consultations indicated that they saw a role as SDM as confusing their mandate, and therefore inappropriate. Others expressed some interest in such a role, seeing it as beneficial to their clientele and an extension of work that they already do. One example pointed to was the Canadian Hearing Society’s General Support Services program, which provides advocacy services and life supports to individuals.[504] Others pointed to the evolution of person-centred service approaches. 

Thinking about that from our perspective, I won’t speak for the agency, but we have a really, you know, person-centred approach to providing services, and we build supports around people, and there is no stranger who supports anymore. I mean, relationship is developed and supports are quality, you know, based on what the person needs, so we already have, you know, the basis of what’s in the best interest of the person and we support people to make their own decisions already. … Helping them make decisions might, you know, be a conflict of interest, but in an agency like our size, we could put in checks and balances, you know, like, counter that…. Because we have that already built into our agency and services and supports that we provide for people and that, I think, is such an critical piece to recognize legally. Why do we have to branch off and go to a stranger for decision-making care when we have this wholesome, really positive approach to good outcomes?

Focus Group, Developmental Services Sector, October 17, 2014

Those organizations indicating interest in a role for community organizations did point out that careful thought would have to be given to conflict of interest issues and to the limits of their expertise. While a key potential benefit of appointing a community organization to serve as SDM for an individual is the holistic approach that such an organization might be able to bring to this role, the flip side of this is that a community organization that provides social services and also acts as an SDM may experience at least potential, if not actual, conflicts of interest between these two roles. There is a risk that the agency may make decisions that inappropriately take into account the needs of the agency as a service provider, in a way that may not be in the best interests of the person for whom they are acting. A review of American public guardianship systems, in which a “social service agency” model for the provision of last resort guardianship is very common, succinctly expressed this tension:

At first blush, the social service agency model might seem the most logical placement for public guardianship in that staff are knowledgeable about services and have networks in place to secure services. However, this model presents a serious conflict of interest in that the guardian cannot objectively evaluate and monitor the services provided. Nor can the guardian zealously advocate for the interests of incapacitated persons, including lodging complaints about the services provided. The filing of an administrative action or a lawsuit may be stymied or prevented entirely.[505]

There was a suggestion that community organizations could perhaps partner with the PGT, with the organizations making day-to-day decisions for their clientele, but with the ability to refer decisions that were beyond their expertise or raised conflicts of interest back to the PGT for determination. 

If I was going to invest some money into the system, I would invest it in helping the Guardian and Trustee clear some of the [unclear]. Like you know, they have so many people where they’re you know, managing finances for. And, like again, do you need a pair of pants or not? Like, that stuff can be done in the community. You know, surely there’s somebody that you have, like, say you have the mechanism through the ODSP trustee … So get those people and let them focus like they’ve done.

Focus Group, Service Providers for Individuals Living with Dementia, October 21, 2014
 

Another suggestion was that community organizations could perhaps partner with trust companies to serve some clients, to provide not only checks and balances but a more comprehensive set of skills. Clear standards for professionalism and ethics would also be of assistance.

I think it’s about professionalism and training. Yes, there can be a conflict, there’s no question, but typically if you’re looking for a power of attorney for property when it is being assigned to a bank you’re going to assume the conflict has been removed but the bank or trust company still needs direction from someone in terms of how it is done. That is a role that [our organization] plays often and again it needs to be bigger than that to be able to have professional guidance of what someone’s needs are…. So there’s a risk of conflict but I think it can come back to who is holding that role, by profession, by experience and by training.

Focus Group, Advocacy and Service Organizations, October 3, 2014
 

It should also be noted that the PGT, trust companies and the proposed professional fiduciaries all are in a position to develop expertise in the role of SDM, because it is a core area of focus for those who carry out it. While community agencies might bring deep knowledge of particular areas – for example, the needs of persons with mental health disabilities and the systems that they must navigate – they may not naturally develop a profound knowledge of the legislative scheme and their responsibilities under it, and how to best fulfil these. 

The LCO’s Final Report in its project on Capacity and Legal Representation for the Federal RDSP, considered the appropriateness of enabling community agencies to act as legal representatives for RDSPs. Noting that organizations are commonly named as trustees for ODSP, CPP and OAS, and that the Saskatchewan Powers of Attorney Act enables the appointment of corporations as attorneys under a POA, the LCO also recognized the risk posed by conflicts of interest and the significant responsibilities attendant on acting for multiple individuals. The LCO made the following recommendations:

6.      The Government of Ontario recognize that community organizations are eligible to act as RDSP legal representatives where they are approved to provide services to adults with disability through designated Ontario ministries.

7.      The Government of Ontario develop and implement a process for a designated government agency to approve the eligibility of community organizations to act as RDSP legal representatives, where they are not approved under Recommendation 6. The government agency be required to maintain a list of approved community organizations. 

8.      The Government of Ontario require that community organizations appointed as RDSP legal representatives under Recommendations 6 and 7 develop and implement a management policy with procedures to do the following:

a)      maintain separate records of transactions respecting each beneficiary’s RDSP;

b)      undertake periodic review of each beneficiary’s records; and

c)    ensure that a suitable employee has clear signing authority to represent the community organization in transactions with a financial institution at all times.[506]

The responsibilities of a community organization acting as an SDM for property or personal care would be considerably broader and more complex, as well as entailing more risk to the individual, than are roles as trustees or as legal representatives for the purposes of opening and holding an RDSP account. 

It is the view of the LCO that community organizations could perform a valuable role in relation to decision-making, given their specialized knowledge of particular communities and their ability to develop ongoing relationships with their clients. For example, community organizations with deep roots in particular disability communities may be well placed to understand the needs, options and circumstances surrounding common types of decisions, or  members of certain ethno-cultural communities, community organizations might aid in interpreting the concepts, practices and goals of decision-making in a culturally appropriate manner. However, the role of community organizations in decision-making should be tailored both to the expertise and to the existing responsibilities of these organizations. 

It would not be appropriate, for example, for community organizations to be making end of life or other major health decisions, or managing the investments of clients: these kinds of decisions lie beyond their roles and skill sets. However, community organizations, as a number of participants in the consultations noted, are well-placed to assist clients with day-to-day decision-making. They also may be particularly well place to address the personal care gap identified earlier in this Chapter, assisting individuals with identifying and accessing services and supports to meet their life goals and making decisions about lifestyle and day-to-day activities. Further, these community organizations may have considerable expertise in assisting individuals in identifying and accessing services and programs and in assisting with practical choices. Practically speaking then, the role of community organizations then might include basic budgeting and bill payment, assistance with application to government programs or services, arranging for support services, and personal care decisions related to nutrition, clothing, hygiene and daily activities.  

If, as the LCO has recommended, an accessible means is created for application to an administrative tribunal for appointment as a representative for single decisions, a system could perhaps be envisioned in which community organizations could manage day-to-day decisions related to personal care and property, with health care decisions defaulting to the PGT under the HCCA and the relatively rare major decisions related to finances or personal care or situations of conflict of interest managed through the single application process.
Alternatively, the suggestions regarding partnerships between the PGT or trust companies and community organizations could be explored.
 

Appropriate Form of Regulation

It is a challenge to develop an effective model to engage community organizations appropriately in substitute decision-making. In considering the best way to structure appointment of community agencies to act as SDMs, it is important to remember that most community agencies are relatively small, and are already operating at capacity. Because there is always a risk of abuse or misuse of substitute decision-making powers, there must be meaningful screening and oversight of organizations seeking to act as SDMs. However, community agencies may have considerable difficulty in complying with complex screening or oversight requirements, particularly if they are not intending to act for a significant number of clients and therefore do not develop deep knowledge of these systems. 

In the United States, there are many non-profit organizations that have qualified as professional representatives under the rules of their particular states, and provide this type of service to those that require it. Some organizations are dedicated entirely to this type of work,[507] while others carry out this role as one part of a broader mandate. This approach has the benefit of simplicity: rather than multiple approaches to identifying SDMs, there would be a single, consistent licensing approach. However, it may not be reasonable to require long-established non-profit organizations to undergo the same degree of process and scrutiny as a for-profit entity with no established track record of service or expertise. Further, the needs and concerns of a non-profit organization that wishes to include this role as one part of its supports to the community it serves will be different from those of a specialized for-profit entity. Certainly, while a specialized non-profit entity may appropriately seek licensing as a professional fiduciary, able to address the full range of decisions required for clients, this process may not be appropriate or necessary for community agencies that may wish to provide substitute decision-making only for daily decisions as part of its broader service role.  

Further, if, as suggested above, the substitute decision-making role of community organizations is limited to day-to-day decision-making, rather than major decisions about accommodation, health care, or investments, the type and extent of oversight will differ from that required for entities taking on more extensive roles. 

Three options for enabling community organizations to take on this more limited role while providing adequate screening and oversight are identified below. 

A statutory amendment could permit the appointment of community agencies to this role. In Saskatchewan, The Powers of Attorney Act permits the appointment of corporations other than trust corporations as attorneys under a power of attorney.[508] This provision was adopted in 2002, after the Law Reform Commission of Saskatchewan recommended that the appointment of corporate attorneys be permitted under the law, so that advocacy groups and “not-for-profit organizations dedicated to assisting vulnerable adults” would be able to act as attorneys.[509] In British Columbia, an exemption under the Financial Institutions Act allows the Bloom Group to act as a trustee for its clients, as described above.[510]

The Public Guardian may directly delegate responsibilities to one or more community organizations. The State of Florida, in addition to a professional fiduciary system, has a public guardianship program for those who cannot pay for guardianship services. The Statewide Public Guardianship Office (SPGO) delegates public guardianship responsibilities to a range of non-profit organizations operating in various locales. To receive a contract, organizations must meet a range of criteria related to professional training, registration, knowledge, staffing and avoidance of conflicts of interest. [511] A 2009 review of Florida’s public guardianship program concluded that it was highly cost-efficient,[512] but also noted that there was a conflict of interest inherent in the program in that the model “puts social services providers in the position of consenting to or refusing their own services”.[513]

The review of American public guardianship programs referenced earlier highlighted that it is increasingly common for public guardianship services to be “contracted out”, and expressed reservations about the practice:

Arguably, the “contracting out” approach allows states to experiment with various models of public guardianship service provision tailored to the needs of a particular region. However, this practice is not without peril and presents a service efficiency and effectiveness conundrum. Public administration literature indicates that contracting out for services is appropriate when the services of government are discrete (e.g., repairing potholes), yet, when the services of government are highly complex, as with public guardianship, services are best provided by a governmental entity. Under the “privatization premise”, contracting of this nature may pose a substantial threat to the provision of public guardianship services due to attenuated and unclear lines of authority, i.e. accountability.[514]

Delegation of the decision-making powers of the Public Guardian and Trustee would raise challenging questions of legal liability, oversight and risk management. Consideration would also have to be given to the funding of the services to be provided. 

Government may designate community organizations to act as SDMs. In Saskatchewan, The Adult Guardianship and Co-decision-making Act permits the Minister to designate corporations, agencies or categories of these as eligible applicants for the role of substitute or co-decision-makers, and non-governmental organizations such as the Saskatchewan Association for Community Living, have been appointed as co-decision-makers or guardians through this means.[515] In practice, such appointments are extremely rare.[516] Organizations may find it challenging to take on these demanding roles without additional supports, training and resources. 

England and Wales have adopted a similar approach on a broader scale. In that jurisdiction, the Public Guardian and Trustee does not act as a guardian (deputy) of last resort. Rather, the Public Guardian and Trustee is responsible for maintaining a “panel” of individuals and organizations who are willing and appropriate to serve as deputies where necessary. Where a “last resort” deputy is needed, the Court of Protection may select a deputy from this panel.[517] The panel at this point consists largely of lawyers, but does include some community organizations, and the Public Guardian and Trustee has indicated its commitment to “diversifying” its panel to include a wider range of skills and a broader set of options to meet the diversity of individual needs.[518] The Office of the Public Guardian has published “Deputy Standards”, for these professional deputies and public authority deputies.[519]  These standards do not have the force of law, but form part of the foundation of the Office’s supervisory function over the work of deputies, which is considerably more intensive than what is found in Ontario. 

DRAFT RECOMMENDATION 44:
The Government of Ontario explore the viability of enabling community agencies to provide substitute decision-making for low-stakes, day-to-day decisions, such as basic budgeting, bill paying and accessing supports and services, including the creation of appropriate mechanisms for selecting, overseeing, setting standards and addressing conflicts of interest for this function.

 

G.   Summary

The role of an SDM is a challenging one, requiring skill, sensitivity, dedication, knowledge of the law and a strong ethical sense. Because of the structural vulnerability of persons for whom an SDM has been appointed, SDMs who are unskilled, uncaring or unethical may have a devastating effect on the lives of persons whom they are appointed to serve. 

Ontario’s current system relies heavily on family and friends to undertake this role out of love and duty, with the PGT available as an alternative where necessary. Many are served very well by the current system, but it is also true that changing demographics and family structures are undermining the assumptions on which the current approach is based. There are a number of gaps and shortfalls. The growing need places pressure on the services provided by the PGT, and the PGT, as it is currently constituted, is not well-placed to make personal care decisions for individuals. In some cases, family members, while willing, do not have the necessary skills to carry out this difficult role. 

Community organizations may, in some circumstances, be able to provide decision-making on day-to-day, relatively low-risk decisions related to finances and personal care, as part of a more holistic set of services. The LCO also believes that it is worthwhile to explore the possibility of regulating professional representatives, as a means of expanding options for expert substitute decision-making. However, there are risks associated with such an approach, so that any program would have to be well-regulated to reduce opportunities for abuse and misuse.

 

 

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