A. Rationale for a Streamlined Process in Ontario
The LCO’s recommendations for a streamlined process to appoint an RDSP legal representative for beneficiaries primarily respond to the aspirations of adults living with disability and the family, friends and service providers who wish to establish a plan for them.
When the federal government asked the public for feedback during its review of the RDSP, it received hundreds of submissions, many expressing concerns with existing processes to appoint a plan holder. As mentioned previously, the RDSP program does not provide a means to name a plan holder for a beneficiary who has been found to be incapable of entering into a contract with a financial institution. This differs from government administered programs, where a procedure to designate a supporter or substitute decision-maker is embedded in the program.
For instance, a family member, caregiver or any other person can apply to Developmental Services on behalf of a person with a developmental disability who wishes to receive individualized funding for services and supports. The CPP, OAS and ODSP also all permit recipients and interested persons to request the designation of an informal “trustee” to manage monthly payments.
In the case of the RDSP, a plan holder must be appointed as a guardian or other person who is “legally authorized” under separate provincial laws. The existing provincial laws that apply in these circumstances, however, tend to address areas of property management that are broader than the RDSP, such as paying bills, buying and selling real estate, and covering daily expenses. With few exceptions, they are also very much focused on protecting adults from the serious harm that can occur when they are unable to make decisions for themselves, rather than on facilitating access to a benefit program, such as the RDSP. Therefore, depending on each province’s framework, these appointment processes can be rigorous.
The federal government has reported that in some provinces, opening an RDSP “can involve a considerable amount of time and expense on the part of concerned family members, and…may have significant repercussions for the individual”. During the LCO’s consultations with Ontarians, we heard personal accounts that confirmed these concerns, specifically regarding the necessity that a plan holder be an attorney or guardian appointed under the Substitute Decisions Act, 1992 – a law that was intended for broader application to property management.
We heard that an adult with disability wanted to grant a POA for property but was informed by his lawyer that he was unable to demonstrate sufficient capacity to do so under the SDA. Parents and siblings have declined to apply for guardianship to become plan holders in order to avoid their loved ones being declared “incapable” of property management. Other family members have been welcomed at the bank, informally at first, but experienced difficulties later when managing the RDSP or interacting with government administrators because they did not have legal authority under the SDA. One parent had decided to obtain a court order for guardianship in order to open an RDSP but had spent over six months without a resolution, incurring substantial legal fees along the way.
As these few examples show, no story that participants shared with the LCO was the same as the next. Nevertheless, common themes about the types of barriers that individuals face in Ontario did emerge as well as their aspirations for an alternative process that is specifically designed for RDSP beneficiaries. We discuss these in turn below.
1. Beneficiaries May Be Unable to Grant a Power of Attorney to Name a Plan Holder
Powers of attorney are a private, expedient and self-determined process that would be the first avenue of recourse for adults wishing to appoint a person as their plan holder. In Ontario, an adult can execute a POA to authorize another person to “do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will”. A POA takes effect immediately or upon the occurrence of an event that the adult can specify him or herself, and if it is a “continuing” POA, it will remain effective if an adult is found to be incapable of managing property.
Financial institutions told the LCO that POAs have functioned smoothly to designate RDSP plan holders. POAs do not always require a formal determination that an adult is “incapable” and staff may be willing to work collaboratively with the attorney together with the client, even after the appointment. One bank employee summarized her views on POAs as follows:
…[W]e try to educate our clients who are holders about the distinction between a person granting a power of attorney and a person needing to be declared incapable….We have clients who have powers of attorney in place to deal with travelling if they’re out of the country. It’s a very common tool and it in fact allows informally supported decision-making. If you [are an attorney] and are able to involve the person who gave the power of attorney in the decision making, it becomes a very easy thing for the financial institution to…have the discussion with both people in the group…. I do find that that’s perhaps a point of education for families…to say that “this can often be very valuable. It’s a relatively inexpensive process to consult a lawyer and have this put into place”.
There are certainly critiques of Ontario’s framework for POAs in the banking and other contexts, some of which we address in our Legal Capacity, Decision-Making and Guardianship project. However, the major challenge that was expressed during the LCO’s public consultations with respect to POAs was that adults who experience significant challenges with decision-making have been unable to meet the requirements of the SDA that would entitle them to grant one.
The test of capacity to give a POA for property in Ontario is more stringent than in many Canadian provinces. It consists of a detailed list of requirements that “entails actual knowledge of the kind of property the grantor has and its approximate value, as well as knowledge of the specific risks and duties of an attorney for property”. The SDA reads
Capacity to give continuing power of attorney
8. (1) A person is capable of giving a continuing power of attorney if he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her.
The threshold for capacity to give a POA for personal care does not apply to RDSP decision-making. However, it is illustrative of the relative stringency of the threshold for property management. It requires that an adult,
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person.
The LCO received submissions that the terms to grant a POA for property under the SDA reflect the risks that an attorney might misuse his or her authority for personal financial gain, and that they are appropriate where all of an adult’s property is at stake. Similar tests for continuing POAs for property management have been enacted in Nunavut, the Northwest Territories and British Columbia, and the Law Reform Commission of Nova Scotia recently recommended one for its jurisdiction.
Nevertheless, participants in our consultations acknowledged that the requirements under the SDA could be unattainable for the adults most affected by this project because of their special needs, coupled with the complexity of the RDSP as a financial investment vehicle. Consequently, beneficiaries may be unable to personally designate a plan holder, leaving an application for guardianship as their sole option to establish an RDSP.
2. Exigencies of Applying for Guardianship Are Disproportionate to Naming a Plan Holder
In Ontario, all adults are presumed to be capable of making decisions for themselves. Guardianship is an avenue of last resort that is reserved for circumstances where adults’ informal supports cannot meet their needs, they do not have or are not capable of granting a POA, or they have a POA that is inadequate. Only adults who are found to be legally incapable of property management by prescribed professionals are subject to guardianship, and the Superior Court of Justice has found that “mental capacity exists if the [person] is able to carry out her decisions with the help of others”. Indeed, the SDA prohibits courts from appointing a guardian where an “alternative course of action” meets an adult’s needs in a manner that does not require a finding of incapacity and “is less restrictive of the person’s decision-making rights”.
The target users of the streamlined process that the LCO has recommended in this project are adults who do not currently have an attorney or guardian to act as their plan holder. Many of these adults manage their finances with a degree of self-sufficiency, such as everyday banking, or benefit from supports at home and in networks of friends and service providers. For example, participants in the LCO’s focus groups included adults with disability who work with an ODSP trustee to manage their payments. Families also described private financial planning tools, such as Henson trusts. Combining such innovative mechanisms in creative ways, we were told, has meant that adults may never have encountered a situation that demanded the formal arrangement of guardianship, before attempting to access the RDSP.
The RDSP poses a dilemma for these persons. As the joint written submissions to the LCO from the Canadian Association for Community Living, Community Living Ontario and PooranLaw explain,
The impediment created by the contractual competence/legal authorization requirements for opening [an RDSP] has been frequently cited by parents as a barrier that prevents them from opening a plan for their family members with intellectual disabilities. These parents are caught between their desire to assure the future financial security of their son or daughter, and the stigma, and restriction of basic rights to liberty, they know comes with formally placing their son or daughter under a substitute decision-making or guardianship order.
Determining an Adult’s Capacity
Participants expressed different reasons for their apprehensions about guardianship. The reason cited by the CACL, CLO, PooranLaw and individuals they represent relates to how we perceive and apply the concept of “capacity” in law.
In Ontario, an adult may be found incapable of managing property if she or he is “not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. This definition of capacity is premised on a so-called “cognitive approach” that involves assessing the process of reasoning in coming to a particular decision. The cognitive approach is widely accepted across the world as “consistent with the principle of least restriction because it involves proportionate and minimal intrusion on decision-making autonomy”.
The definition of capacity under the SDA rejects the bright-line assumption that persons with disability do not have the capacity to act autonomously and are in need of protection. It allows persons to make risky decisions that some might view as imprudent based on public opinion. Moreover, it accommodates issue-specific and fluctuating abilities by restricting the attribution of incapacity to particular areas of decision-making, for instance, through the separation of property management and personal care.
Despite commonly perceived gains made to promote autonomy under the cognitive approach, however, there are vigorous debates about definitions of capacity and whether the designation of “incapacity” should be used as a basis for decision-making arrangements at all.
The Committee on the Rights of Persons with Disabilities (Committee), which monitors the implementation of the Convention on the Rights of Persons with Disabilities, has highlighted the stigma and prejudicial effect that concepts of capacity have had in denying basic rights “to many groups throughout history, including women (particularly upon marriage) and ethnic minorities”. According to the Committee, “persons with disabilities remain the group whose legal capacity is most commonly denied in legal systems worldwide” and, among them, persons with cognitive and psychosocial disabilities are disproportionately affected. The Committee has become a forum for global dialogue on the role of government in arranging services and accommodations for persons who want support to exercise their abilities independent of a substitute decision-maker, including the opportunities, constraints and risks of abuse.
In this project, the LCO heard about family members of persons with developmental disabilities who object to the “competency” requirements under the ITA. They also take issue with Ontario’s legal framework, where a declaration of incapacity is a precondition to naming a plan holder for RDSP beneficiaries who are unable to grant a POA. As a result, these family members have declined to apply for guardianship in order to establish an RDSP.
Other participants in our consultations, including family members, community organizations and legal professionals did not appear to feel strongly about or they approved of the use of capacity criteria to appoint a decision-maker. It was acknowledged that in the community “there is a split”. The Advocacy Centre for the Elderly expressed its endorsement of Ontario’s definition of capacity in a written submission to the LCO as follows:
ACE recognizes that cognitive capacity acts as a barrier to access to the RDSP scheme – as it does to the ability of incapable adults to access their property and finances in numerous other circumstances. However, ACE also recognizes that, in certain circumstances, this capacity barrier is “a necessary evil” to prevent abuse and financial insecurity. ACE believes that cognitive capacity is a reasonable and legitimate basis for distinguishing between the legal effect of decisions, while recognizing that the specific cognitive threshold for each decision type should be carefully [tailored] to be as minimally restrictive as possible.
Our discussion paper reviews concepts of capacity and interpretations of the CRPD more thoroughly (see Chapter II.B.3, “What is Capacity? Foundational Concepts and Tensions”, and Chapter IV.B.4, “Convention on the Rights of Persons with Disabilities” of the discussion paper for the project). These issues are also being considered in our larger project on Legal Capacity, Decision-Making and Guardianship.
Procedural Aspects of Applying for Guardianship
The overwhelming concern expressed in nearly all of the LCO’s focus groups and interviews was with the procedural aspects of applying for guardianship: Ontario’s application processes were described as overly cumbersome, costly and time-consuming for persons wishing only to establish an RDSP.
A family member of an adult with disability told the LCO that
…they should have introduced the RDSP by saying are you prepared to have a court appointed guardian? Are you prepared to have the legal system to look after your things? If you’re willing to jump through all of these hoops, we have an RDSP for you…. [T]he announcement’s made you are eligible for an RDSP and right away you think “this is wonderful. Finally I have something, a vehicle where I can put my monies in that I know when I reach a certain age, they will come back”…. But then you find out that all of this is necessary for anyone to continue through the system…. [I]t’s so very, very difficult.
There are two routes to apply for property guardianship in Ontario: requesting a capacity assessment for statutory guardianship or a court order. Any person can apply to the Superior Court of Justice to appoint a guardian for an adult whom a judge finds incapable of managing property. The SDA stipulates that the court can “impose such other conditions on the appointment as the court considers appropriate”. Therefore, an application could be limited to appointing a guardian to make decisions about the RDSP and not all of the adult’s property. This would be a form of “partial” guardianship – a recognized means to minimize the intrusiveness of guardianship orders in the province.
Court proceedings can, however, be complex for unrepresented litigants and are expensive for those with a lawyer. The LCO heard that lawyers’ fees in guardianship applications with a hearing in Toronto can range from approximately $8,000 to $20,000 for uncontested appointments depending on the complexities of a given case. The father of an adult with disability in Ottawa told the LCO that he had paid approximately $5,000 for an order that was being granted on summary disposition without a hearing before a judge. He noted that these costs were “not necessarily a problem for us…but they could be for families who have diminished resources”.
Ontario’s statutory appointment process is a simplified route for family members to become a guardian without a court order. It was proposed to facilitate access “in situations where there is no doubt about an individual’s incapacity, and the person does not object to having a [guardian]”. It involves applying to the Office of the Public Guardian and Trustee (OPGT) following the determination that an adult is incapable by an independent, qualified professional, called a “capacity assessor”. Capacity assessments for statutory guardianship are voluntary, take place in the community and the process as a whole can cost less than $1,000.
Statutory appointments can be straightforward; however, they are not habitually used for partial guardianship. As a consequence, adults with disability who have lived independently or with adequate supports to handle their affairs in the past could find themselves after an appointment, not only with a plan holder, but also a guardian who has plenary authority over their property matters.
Perhaps because statutory appointments have a broad reach, applying to the OPGT may also be unduly onerous. An applicant must prepare a detailed management plan for the adult’s assets and complicating factors (such as difficulties preparing the application or family disputes) can result in the process becoming lengthy or finishing before a judge.
It is important to remember that the procedural steps described above are designed to cover the full range of adults under guardianship who may have modest to substantial assets. They are meant to ensure that suitable applicants are approved as guardians of property with a view to safeguarding adults against those who might abuse their powers. Additionally, they protect individuals from being deprived of autonomy in situations of undue process.
The LCO’s larger project on Legal Capacity, Decision-Making and Guardianship considers issues surrounding the accessibility of Ontario’s appointment processes and possibilities for partial guardianship. What we have been told in our project on the RDSP is that the procedural exigencies of applying for guardianship, under the law as it now stands, are disproportionate to naming a plan holder who can facilitate access to this particular social program.
B. Aspirations for a Simple Way to Designate a Trusted Person
Your new legislation needs to be drafted keeping in mind that this silent majority can do the job of supporting their family member or friend with a disability most easily and economically, and deserves to be allowed to do so with as little government or outside interference as possible.
The majority of adults with disability and their family and friends described what they would like to see come out of the LCO’s project in terms of simplicity, informality and privacy. Above, we discussed just a few tools that are used in the disability community as routine methods to delegate asset management without the appointment of an attorney or guardian. In our focus groups, the LCO met several families who have “muddled through” making decisions with and on behalf of their children or siblings outside the framework of the SDA. We were often asked why a “formal” or “legal” process was necessary for the RDSP as opposed to assets, such as ODSP payments, money in a private trust and individualized funding from Developmental Services.
It is true that the ITA requires a plan holder to be a legally authorized person. However, ODSP trusteeships, private trusts and other arrangements that authorize someone to manage an adult’s finances are also based in law. ODSP trusteeships are made possible by the Ontario Disability Support Program Act, 1997, Regulations and Income Support Directives. Private trustees are regulated under the common law and legislation, such as the Trustee Act. Additionally, the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 determines who can apply for, receive and administer individualized funding for a person with a developmental disability.
What is distinctive about these examples is not that they are less legal but, perhaps, that they feel less formal. For instance, parents said that they had little difficulty becoming an ODSP trustee because they could meet with a caseworker and have their appointment confirmed without much procedure or delay. Private trusts were characterized as fast and easy to establish with the professional services of a lawyer, although they can be expensive.
Many families in the community of persons with developmental disabilities also said that they have formed “circles of friends” and “personal support networks” that make decisions, collaboratively, with an adult’s input and interests in mind. These community networks are made up of trusted family members, friends and service providers, some of whom may have legal authority to make decisions on the adult’s behalf in a given area. Community networks may incorporate to become non-profit entities – called “microboards” in British Columbia and “Arohas” in Ontario – that can enter into binding agreements with government agencies to manage individualized funding.
Participants in our consultations expressed support for a streamlined process for the RDSP that draws on these experiences, focusing on a means to designate a person who has a close, trusting relationship with the beneficiary. Keeping adults with disability at the center of the process, with the involvement of their community networks, was tendered as a means to judge the RDSP legal representative’s suitability and also to guard against the potential for financial abuse.
C. Concerns of Interested Third Parties
The federal RDSP review consultation paper recommended that provincial and territorial proposals for an alternative process to appoint an RDSP legal representative “would require careful consideration of costs, administrative feasibility, liability issues, oversight, and accountability”. The challenges that the LCO learned about in its own consultations substantiate that these are important issues in Ontario for third parties who facilitate participation in the RDSP, specifically, financial institutions and the Ontario government.
Financial institutions offer the RDSP voluntarily, even though it is a complex product. Financial institutions offer the RDSP because it improves their brand reputation but also because non-eligible clients as well as their own employees are the families and friends of persons with disabilities. The time and efforts that financial institutions contribute to delivering the RDSP should be met with solutions to address the challenges that they face. In terms of the LCO’s project, this means that financial institutions must feel secure with an alternative process to establish an RDSP legal representative.
Feeling secure for financial institutions includes the certainty that they can rely on a new process as one that is valid under the law, that an RDSP legal representative is authorized to act with respect to the RDSP (as a specific area of financial management), and that they will not be held liable for the RDSP legal representative’s decisions in the event of loss or dispute.
Financial institutions also share the interest of the Ontario government in creating a process that respects operational and resource constraints. Participants in the LCO’s consultations highlighted that the subject matter of this project concerns the creation of a practical mechanism that can be used on the ground. This means that any law reform measures must be accessible, cost-effective and administratively feasible.
In particular, resource constraints significantly affect the implementation of Ontario’s existing legislation in this area and will continue to affect the system under any law reform. The LCO understands that it is unlikely, in the current economic climate, that the Ontario government will have significant resources available to add to the system. Our intention is that the recommendations in this project meet the expectations of individual consumers who will use a future process but that they also impose little extra cost on those who will administer it.
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