In general, laws benefit from the inclusion of mechanisms to ensure accountability, transparency and effectiveness. Often there is a lack of monitoring and oversight mechanisms for systems disproportionately or exclusively affecting older persons; as a result, it is difficult or impossible to determine whether these systems are operating effectively or the degree to which older adults are subject to abuses or violations of their rights. Monitoring of the law and regular evaluation of its effects provides a strong foundation for meaningful law reform, and mechanisms for monitoring and evaluation should be built into the law from the outset. This section considers the mechanisms within laws for accountability, transparency, monitoring and evaluation.
Applying the Principles to Step 7
Note: “Law” here refers to law, policy and practice, as appropriate.
Monitoring and accountability mechanisms relate to the principles in a general way, in that without them, we cannot determine whether or ensure that a particular law is respecting or advancing the principles. As well, accountability mechanisms can promote the principle of participation and inclusion by giving older persons the opportunity to have a voice in the operation and reform of laws that affect them, and of security by ensuring that laws are not negatively affecting the wellbeing of older adults.
For information on the principles and monitoring and accountability mechanisms see the Final Report, Chapter V.C.7.
QUESTIONS FOR CONSIDERATION IN APPLYING STEP 7
Does the law include a mechanism to allow those affected, including older adults, to provide feedback on the effectiveness of the law and on any unanticipated negative consequences for older adults?
Does the law include provisions that require meaningful information about its impact and effectiveness to be systematically gathered and documented?
Does the law require that information about its operation and effectiveness be made publicly available?
Are those charged with implementing and overseeing the law required to regularly report on their activities and the effectiveness with which the law is administered?
Where the law provides significant discretion to those charged with its implementation, does it include additional reporting and monitoring mechanisms to ensure that this discretion is exercised consistently, fairly, transparently and in a principled manner?
Does the law require regular review of its goals, to determine whether they are still meaningful and appropriate?
Does the law require regular review of the effectiveness of its implementation, and whether the aims of the law are being achieved?
If the law was developed as a partial response to an issue because of resource or other constraints, are there mechanisms in place to ensure that the issue is regularly reviewed and that progress is made towards better fulfilment of the law’s aims?
Are the resources allocated to the law regularly reviewed to ensure that they remain adequate and appropriate for its effective implementation?
Where reviews are carried out, are steps taken to act on the results of the review? Has consideration been given to making the results of significant reviews available to the public?
APPLYING THE FRAMEWORK: EXAMPLE OF THE RELATIONSHIP OF THE PRINCIPLES TO MONITORING AND ACCOUNTABILITY MECHANISMS
Monitoring Enduring Powers of Attorney
Individuals designated as substitute decision makers through enduring powers of attorney have very broad powers. Their decisions have the potential to radically affect the security, dignity, independence and autonomy, and participation and inclusion of the person granting the power of attorney. Significant concerns have been raised about abuses through powers of attorney, particularly financial abuse of older persons. However, there are no substantial mechanisms for monitoring enduring powers of attorney. It is impossible to know even how many of these powers of attorney are currently in effect in Ontario, let alone how they are being exercised. While it was hoped that enduring powers of attorney would enhance the security and autonomy of older persons by allowing individuals to plan for the future, it is impossible to tell how well this legal regime is operating and whether the principles are being enhanced or undermined. That is, it is possible that current laws, although well-intended, are undermining rather than promoting the principles.
The Alberta Law Reform Institute, in its recent review of laws related to enduring powers of attorney, has recommended that transparency and accountability for the exercise of powers of attorney be strengthened by including provisions requiring attorneys, upon commencing responsibilities for a legally incapable person, to issue a formal notice in which they formally acknowledge and accept a specified list of duties as an attorney, as well as provisions enabling persons concerned about misuse to report concerns to a designated public official who will have discretion to investigate.
See Alberta Law Reform Institute, “Enduring Powers of Attorney: Safeguards Against Abuse” (2003).
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