The Law Commission of Ontario recommends that
1. The Government of Ontario implement a process that would enable adults to personally appoint an RDSP legal representative, where there are concerns about their capacity to enter into an RDSP contract with a financial institution and they do not have an attorney or guardian for property management.
2. The criteria to grant and revoke the personal appointment identified in Recommendation 1 be based on the definition of legal capacity to grant and revoke a power of attorney at common law, which requires that the grantor have the ability to understand the nature and consequences of the appointment.
3. If the Government of Ontario believes that the criteria to grant and revoke the personal appointment proposed in Recommendation 2 are not sufficiently flexible to improve access to the RDSP, the criteria be based on the definition of legal capacity to make a representation agreement under s.8(2) of the British Columbia Representation Agreement Act, which consists of factors including the communication of a desire to have a representative, the expression of approval and the existence of a relationship with the representative that is characterized by trust.
4. The personal appointment process identified in Recommendation 1 incorporate the following features:
a. The execution requirements for the personal appointment be the same as for a power of attorney for property under s.10 of the Substitute Decisions Act, 1992, which requires that the document be executed in the presence of two witnesses, who must sign the document. The following persons be prohibited from being witnesses: the RDSP legal representative, the grantor’s spouse or common-law partner, the grantor’s child, persons who have property under guardianship and minors.
b. The grantor have the same protections against financial abuse found in ss.7, 8, 27, 32, 33, 39, 42 and 83 of the Substitute Decisions Act, 1992. These protections include permitting adults to appoint more than one RDSP legal representative or a substitute, in the event the primary RDSP legal representative is unavailable; requiring RDSP legal representatives to maintain accounts of transactions; allowing an application be made to the Superior Court of Justice to pass accounts and obliging the Office of the Public Guardian and Trustee to investigate allegations that an adult is incapable of managing property and that serious adverse effects are occurring or may occur. In addition, all beneficiaries have the protection of provisions under the ITA that regulate the management of funds in an RDSP, such as mandatory lifetime payments, the calculation of payment amounts and compliance measures.
c. The RDSP legal representative have authority to open and manage funds in an RDSP, including consenting to contributions, deciding investments, applying for grants and bonds, and requesting that payments be made to the adult; however, he or she be prohibited from receiving and managing funds paid out of the RDSP on the adult’s behalf.
d. The RDSP legal representative be required to formulate an opinion with respect to the adult’s legal capacity to manage the payment out, prior to requesting that payments be made to the adult. If the RDSP legal representative has reasonable grounds to believe that the adult is capable of managing the payment out, he or she be required to provide the financial institution with a signed statement of that opinion at the time a payment is requested. If the RDSP legal representative has reasonable grounds to believe that the adult is not capable of managing the payment out, he or she shall either not request the payment out or shall consider all options available under the Substitute Decisions Act, 1992, as appropriate.
e. The RDSP legal representative have the duties of an attorney for property under s.32 of the Substitute Decisions Act, 1992, as applicable, and be held to the same standard of care. These duties include encouraging an adult to participate in decisions, to the best of his or her abilities; consulting from time to time with an adult’s family and friends; and making decisions in a manner that is consistent with an adult’s personal care decisions. The standard of care requires RDSP legal representatives to exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs.
f. The personal appointment terminate in the same circumstances as in ss.11 and 12 of the Substitute Decisions Act, 1992. These circumstances include where an RDSP legal representative dies, becomes incapable or resigns, unless there is another RDSP legal representative or substitute authorized to act; the adult grants a new personal appointment, unless he or she specifies that there are to be multiple appointments; the personal appointment is revoked or the adult dies. The personal appointment also terminate when a guardian for property is appointed on the adult’s behalf through the court or statutory guardianship processes, or the adult executes a valid power of attorney for property.
5. The Government of Ontario provide third parties with clear exemptions from liability should they rely on a personal appointment made pursuant to Recommendation 1 in good faith and without knowledge that it was invalid at the time it was executed or that it was subsequently terminated, varied or invalidated.
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.
9. The Government of Ontario distribute public legal education to potential users of the streamlined process identified in Recommendation 1 in a variety of accessible languages and formats. Among other issues, the public legal information could explain how to determine whether a beneficiary has capacity to enter into an RDSP contract with a financial institution; how to refute a financial institution employee’s opinion that a beneficiary is incapable of entering into an RDSP contract; the criteria to grant the personal appointment; and the role and responsibilities of legal representatives.
10. The Government of Ontario adopt a conflict of laws provisions for the streamlined process identified in Recommendation 1, modeled on ss.85 and 86 of the Substitute Decisions Act, 1992, in order to promote coherence in the processes to appoint RDSP legal representatives for beneficiaries across Canada. The provision would enable adults travelling from outside of Ontario to continue to be represented by a plan holder who was previously appointed through a valid arrangement.
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