VIII. EXPANDING CHOICE OF DECISION-MAKING REPRESENTATIVE

FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter X

For the full text of draft recommendations, see the accompanying document

Main Point of the Chapter
Chapter X examines the desirability and feasibility of expanding the options for professional or expert substitute decision-makers. Currently, the vast majority of substitute decision-makers are family members and close friends, with the Public Guardian and Trustee playing an important role where family or friends do not act. There are individuals who do not have meaningful or appropriate options in the current situation, and demographic and social changes suggest that challenges will continue to grow.

Background
Ontario laws give preference to family members to act as substitute decision-makers. 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, as well as often having a profound commitment to the wellbeing of the individual. 

In keeping with this legislative preference, currently the vast majority of those who act as substitute decision-makers in Ontario are family members or close friends of those receiving assistance. There are a relatively small number of individuals who have as their substitute decision-makers a professional (such as a lawyer), or an organization (such as a trust company). The Public Guardian and Trustee acts as substitute decision-maker where:

·       it has been appointed through a statutory guardianship for property and no replacement guardian has been appointed;

·       it has been appointed by a court, usually in the context of a “serious adverse effects” investigation;  and

·       no person is identified through the hierarchical list in the Health Care Consent Act.

Issues
Changes in demographics and family structure have left growing numbers of individuals without family or close friends who are willing and able to act: trends indicate that these numbers are likely to continue to grow. As well, the challenges and burdens of the role of a substitute decision-maker mean that for some Ontarians, choosing among family or friends leaves them choosing the “least bad option”, as lack of necessary skills or family dynamics leave them without good choices. Finally, the current system of statutory guardianship leaves Ontario’s Public Guardian and Trustee as often the guardian of first, rather than last, resort, a system which has been critiqued by some families and which may not make the most effective use of the Public Guardian and Trustee’s expertise and resources. 

The LCO has proposed as goals for reform in this area: 

·       ensuring that all those who lack legal capacity and require a substitute decision-maker to make necessary decisions have meaningful access to such assistance;

·       ensuring that a range of options with appropriate safeguards be available to address the diverse needs of those who lack or may lack legal capacity, including a broader range of options beyond the family; and

·       identifying a more effective focus for the vital role of the Public Guardian and Trustee.  

Licensed and regulated professional guardians (also sometimes referred to as professional fiduciaries or professional representatives) have been proposed as a means of expanding choices for substitute decision-makers among those who are looking for expert and professional services or who do not have appropriate and available friends or family members to act for them. Such services are widely used in some other jurisdictions, most notably the United States. Experience in those jurisdictions highlights the risks of abuse and the importance of strong safeguards. 

There may also be an appropriate role for community organizations. Community organizations already play a similar role as trustees for certain types of social benefits. These organizations are close to the community, provide a range of supports and have the ability to develop a deep understanding of the contexts and needs of the particular populations they serve. They therefore may have the ability to provide a more personal and holistic approach to the role of substitute decision-maker. They may also be able to serve populations that would not be able to access for-profit services or that might be challenging for families to adequately support. However, close attention must be paid to the potential for conflicts of interest and to the limitations in resources and expertise for these organizations.    
 

Here is a summary of the LCO’s draft recommendations in this area:

41.  The Health Care Consent Act be amended to allow individuals to exclude a particular individual or individuals from appointment under the hierarchy set out in that statute; 

42.  The role of the Public Guardian and Trustee be focussed on providing expert services for those who cannot be appropriately served by other options, whether because of their social isolation or family dynamics, or because their needs are so challenging that the expertise and professionalism of the Public Guardian and Trustee is required: this will require the implementation of a number of the other proposed draft recommendations;  

43.  Government explore the potential for community organizations to play a greater role in low-stakes, day-to-day decision-making, again with appropriate criteria and oversight;

44.  Government explore the feasibility of establishing a licensing and regulatory system for professional decision-making representatives, as a means of offering a greater range of trustworthy options for those who prefer expert and professional substitute decision-making services and have the means to pay for such services, contingent on the inclusion of appropriate safeguards and oversight.