A. Developing the Process
1. Our Review of Alternative Arrangements
There is a long history of efforts to reform decision-making laws in Canada over the years and positive changes have been implemented in nearly every province. The LCO’s discussion paper for this project reviews and analyses existing laws, policies and programs in Canada and abroad as a foundation for developing creative solutions that build on past experience. We have had the benefit of commissioned reports, expert literature, policy documents and our own consultations, which provide insights into the contributions that existing frameworks can make. In this report, our recommendations integrate features of alternative arrangements in light of our research findings and the benchmarks for reform, discussed earlier.
The starting point for our review of alternative arrangements is the federal government’s Economic Action Plan, where it recognized
Some provinces and territories have already instituted processes to allow for the appointment of a trusted person to manage resources on behalf of an adult who lacks contractual capacity, or have indicated that their system already provides sufficient flexibility to address these concerns.
Below, we briefly summarize the processes that are being or could be used to appoint a person who is legally authorized to make decisions for RDSP beneficiaries that the federal government has recognized.
Similar to Ontario’s SDA, most of these processes were originally designed to apply to broader areas of property management than the RDSP. They permit adults to name another person to assist with or manage their finances, if they meet a stipulated threshold for capacity. Alternatively, a guardian (or substitute decision-maker by a different title) can be appointed following a capacity assessment. Nevertheless, the laws in this area vary widely across jurisdictions and governments have reported that concerns with establishing an RDSP do not arise in their jurisdictions or have not been escalated to a level that necessitates a policy response.
Newfoundland and Labrador is the exception; it passed a legislative amendment to create a new process that specifically addresses this issue, albeit it is not in force. Saskatchewan has also provided guidance to members of the public on how to draft a POA that is limited to appointing a plan holder.
Figure 3: Processes in Provinces and Territories Recognized in the Economic Action Plan 2014
Alberta permits a desk application for a court appointed guardian (called a “trustee”). Applicants fill out a self-help kit and submit it to specialized review officers in the Office of the Public Guardian who ensure proper completion of the documents and fulfill other duties, including providing notice to appropriate parties and drafting a review officer’s report. Review officers typically meet with adults subject to the application to consult them about their wishes before forwarding the application and supporting documents for a judge’s approval.
In British Columbia, adults can grant a “representation agreement” (RA) to authorize someone to help them or make decisions on their behalf. The threshold for capacity to do so is based on a set of non-cognitive factors that are less stringent and substantively different than for a POA in British Columbia and Ontario. It reflects a social policy decision to extend personal appointments to adults with significant disabilities who have unique ways of communicating that can be understood by a trusted person. RAs apply to stipulated areas of routine financial management that do not expressly include the RDSP. Some interpret the legislative language as including the RDSP and financial institutions have accepted RAs to establish plans.
As part of an overarching scheme to provide services to persons with developmental disabilities, a substitute decision-maker can be appointed for these persons through an administrative proceeding that involves an initial screening by Manitoba’s Vulnerable Persons Commissioner and an appearance before a hearing panel.
Newfoundland and Labrador
Newfoundland and Labrador amended its POA legislation to permit adults to name two persons to be their “designates” for the RDSP. The amendments are not yet in force. The threshold for capacity to execute an agreement is less restrictive than are Newfoundland and Labrador’s and Ontario’s requirements for a POA. It is based on British Columbia’s RAs (see above). If an adult is unable to make a designation, certain family members can initiate an appointment of the Public Trustee through the Trial Division Court (equivalent to Ontario’s Superior Court of Justice).
The Government of the Northwest Territories has indicated that it will address the issue on a case-by-case basis. Not many cases are expected given its population of fewer than 45,000 residents.
Saskatchewan recommends adults use a “special limited” POA to appoint a plan holder based on the province’s existing legislation, which contains a less stringent threshold for capacity than exists in Ontario. It suggests that the scope of the attorney’s powers be restricted to a plan holder who would not have authority to take funds out of the RDSP. Those extended powers would require full property guardianship or “co-decision making” due to concerns about financial abuse.
In Saskatchewan, a judge may appoint a co-decision maker as a less restrictive alternative to guardianship, where an adult “requires assistance in decision-making in order to make reasonable decisions….” Co-decision makers share legal authority with the adult, and where a contract requires them to co-sign, it is voidable if one person signs it alone. However, co-decision makers must acquiesce in an adult’s decision if it is reasonable. Applications for this arrangement must be brought to the Court of Queen’s Bench (equivalent to Ontario’s Superior Court of Justice).
The Yukon permits adults to grant a “supported decision-making agreement” to give trusted friends and relatives legal authority to help them make their own decisions. Supported decision-making “arrangements are for adults who can make their own decisions with some help”. Supporters can participate in activities such as receiving confidential information, giving advice and communicating decisions. However, supporters are prohibited from making decisions on an adult’s behalf and a decision made or communicated with assistance is considered to be that of the adult.
The Yukon also has “representation agreements”, which authorize someone to make decisions on an adult’s behalf. Like RAs in British Columbia, they are restricted to routine financial affairs that do not expressly include the RDSP. The threshold for capacity to grant an RA is the same as for POAs in the province but is less stringent than in Ontario. RAs differ from POAs in the Yukon because they are drafted with the help of a government office rather than a lawyer. They are more accessible for that reason but also expire at the earlier of three years or when an adult’s capacity declines.
In addition to decision-making laws in provinces and territories highlighted by the federal government, our discussion paper considers laws in the areas of trusts, and the income support and social benefits sectors. Certain examples have already been mentioned in this report, such as CPP, OAS and ODSP trusteeships.
2. Public Consultations on the Options for Reform
Even the brief summary of alternative arrangements in the preceding section reveals that approaches to this issue across Canada largely correspond to established legal frameworks in separate jurisdictions. The objective of our dedicated phase for public consultations was to gain feedback on the options for reform in Ontario.
Several options for reform presented in the discussion paper laid the groundwork for our consultations. Based on our review of existing arrangements, mentioned above, we proposed that a streamlined process could be administered through
- a personal appointment similar to a POA but available to adults who meet a threshold for capacity that is less stringent than that to grant a POA for property management under the SDA, alone, or in combination with
- a streamlined application to the Superior Court of Justice, an administrative tribunal or a government office.
The LCO understands that stakeholder buy-in is crucial to recommending law reform measures that are effective and we have been purposely sensitive to the feedback we received on these options. We also encouraged members of the public to comment on further options that were not identified in the discussion paper, which could reasonably achieve the benchmarks for reform.
The persons we contacted included lawyers and advocates who participated in consultations leading up to past commissioned reports that shaped the SDA (commonly called the Fram, Weisstub and O’Sullivan reports) and who have put the SDA in practice from the 1990s until present. Self-advocates and their family and friends shared their personal experiences with the SDA, private trusts and ODSP. Furthermore, we heard from policymakers about the opportunities and constraints for future directions in Ontario. (Detailed information on whom we consulted and how is found in Chapter I.E.1, “Research and Consultations”.)
Our recommendations in the remainder of this report are meant to balance the diverse perspectives that were expressed to us.
B. Overview of the LCO’s Recommendations
The Law Commission of Ontario recommends that the Government of Ontario implement a process that would enable adults to personally appoint an RDSP legal representative to open and manage funds in an RDSP, where there are concerns about their capacity to enter into an RDSP arrangement with a financial institution.
The process would be available to adults who do not have an attorney or guardian for property who could act as their plan holder. It would enable adults to choose whom they would like to assist them in gaining access to an important social benefit by opening the RDSP and deciding the plan terms. However, an RDSP legal representative would not have authority that extends beyond that of a plan holder to manage funds paid out of the RDSP. Therefore, when the time comes for beneficiaries to receive payments out of the RDSP, they would be required to manage their own funds or apply for guardianship, if they do not have legal capacity to do so.
RDSP beneficiaries, like all adults in Ontario, have legal capacity under the SDA if they are able to manage their own finances with the help of family, friends and service providers. However, the LCO believes that where adults are unable manage funds paid out of the RDSP with help, they require a more comprehensive solution than an RDSP legal representative can provide. This is due, in part, to concerns about financial abuse but also the nature of RDSP funds, which we discuss later in the report.
In Ontario, guardians are a source of comprehensive decision-making for property management that adults and their supporters can turn to when in need. In addition, the LCO’s ongoing project on Legal Capacity, Decision-Making and Guardianship considers less restrictive alternatives to guardianship that could, possibly, address challenges that adults with varying abilities face. Our discussion paper in that project was released in June 2014.
With respect to the criteria to grant the personal appointment, the LCO recommends they be based on the definition of legal capacity to grant a POA at common law. However, if the Government of Ontario believes that these criteria are not sufficiently flexible to improve access to the RDSP, we recommend that they be based on section 8(2) of the British Columbia Representation Agreement Act. These two thresholds for legal capacity are less stringent than the requirements to grant a POA for property under the SDA. Recognizing that Ontario’s existing threshold is unattainable for some adults with disability, we propose that this measure could improve access for adults wishing to appoint a plan holder.
As a safeguard against financial abuse, we believe that the ease with which adults would be able to personally appoint an RDSP legal representative should be offset by robust protections. Therefore, we recommend that adults be entitled to benefit from provisions under the SDA that include requiring attorneys for property to keep accounts of financial transactions and permitting members of the public to file an allegation of suspected abuse with the OPGT. In addition, we recommend that an RDSP legal representative have authority to open an RDSP and decide the plan terms but not manage funds paid out of the RDSP. The ITA has embedded several protective measures for the management of funds while they are held inside the RDSP. Restricting the scope of an RDSP legal representative’s authority from extending beyond that of a plan holder would reduce the opportunities for self-dealing and mismanagement after funds have left the plan.
Adults who appoint an RDSP legal representative using our suggested streamlined process could choose a relative, including a parent, spouse, common-law partner or sibling; a close friend; or a community organization that is approved by a designated government agency.
Once an RDSP legal representative has been appointed, we recommend that he or she have the same duties of an attorney for property for an adult who has been found to be legally incapable under the SDA, as applicable, and be held to the same standard of care. This would require RDSP legal representatives to encourage an adult’s participation in decision-making, to the best of his or her abilities, and to consult with supportive family members and friends, among other duties. They would also be fiduciaries under the law, whos