The LCO did research and interviews in the first stages of our project to learn about concerns that people might have with the rules about assessing capacity and naming a legal representative that are in place in Ontario.
For detailed information on these concerns, see Discussion Paper, Ch. III.C, Challenges Posed by Ontario’s Current Framework.
A. Concerns of Beneficiaries and Their Families
1. Powers of Attorney
Powers of attorney can reflect an adult’s wishes. They can be made quickly and they are private.
The test for capacity to make a power of attorney to manage money is stricter in Ontario than in most Canadian provinces and territories.
We learned that some adults with mental disabilities may experience challenges making a power of attorney for RDSP decision-making because they may be unable to meet the test for capacity under the Substitute Decisions Act, 1992.
2. Capacity Assessments
The capacity assessment process can be easy to use and affordable.
However, the LCO heard that if there are problems with an application when someone wants to become a guardian, it can take more time or end up in court and then would be less affordable.
For example, family members may not agree about who should be the guardian. The application to the Office of the Public Guardian and Trustee may also not be filled in properly.
3. Court Orders
We heard that the process of applying to get a court order can be difficult for some people to understand. It may also involve hiring a lawyer, which can sometimes be expensive.
Applying for a court order without an in-person hearing before a judge can lower lawyers’ fees. But it can sometimes be expensive to pay for the extra documents.
This process is also not used very much because of concerns about how to protect an adult’s rights when there is no hearing.
4. Impacts of the Process on an Adult’s Well-Being
The LCO heard about a number of ways that the rules in place might impact the well-being of adults who need help making decisions for RDSPs.
These are some examples:
Some adults who want an RDSP can manage their other money alone or with a little help. This means that even though they might need help with RDSPs, they might not need a guardian to make decisions about their other money. Some people we heard from thought that legal representatives should only be allowed to make decisions about RDSP money – not other types of financial or personal decisions.
Another concern was how much adults can participate in making decisions with a guardian or attorney (when they have been found to be incapable). Some people told the LCO that RDSP beneficiaries should be able to participate more meaningfully in decision-making. They said that a new process for beneficiaries should focus on their needs for support instead of on incapacity.
Financial abuse is another problem that can happen after a guardian or attorney is chosen. We heard that legal representatives could also handle a beneficiary’s money in a way that harms them. As a result, a new process to name a legal representative for RDSP beneficiaries needs to include rules to prevent and respond to this type of abuse.
5. Finding a Person to be a Legal Representative
The LCO heard that some adults who want an RDSP may not have a trusted family member or friend who can act as a guardian or an attorney under the Substitute Decisions Act, 1992.
Some adults rely on service providers for help with everyday living, such as community organizations. Where adults do not have a trusted family member or friend, they might also want organizations to be able to help them with decision-making for an RDSP.
But under the rules in place, most organizations are not allowed to be guardians or attorneys.
B. Concerns of Other Individuals and Organizations
The main concerns that other individuals and organizations expressed to us were about practical issues.
For example, we heard that a new process should be easy to use. It should also be affordable for everyone, including users (such as beneficiaries) and those who put the rules in place (such as the Ontario government).
Financial institutions that offer RDSPs also want to feel secure that under any new rules, they can rely on the decisions that legal representatives make.
Question 3: Have you faced challenges with naming an attorney or guardian to help you (or another person) open or make decisions about an RDSP?
Question 4: What do you think about the concerns that the LCO has heard about? Are there other concerns that we should know about?
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