A.    Introduction to the “Options for Reform”

1.     What Do We Mean by “Options for Reform”?

The full discussion paper looks at different changes to the rules in place in Ontario to create a process that is only for naming a legal representative for RDSP beneficiaries and does not affect how they deal with any other property they may have.

We call these changes the “options for reform”. 

The options for reform are only possibilities at this stage in the LCO’s project. Some might work better to achieve the goals for change than others. The LCO has not decided which option or options would be best. This summary of the Discussion Paper is part of our process of consulting people who have something to say about which options for reform could work best in Ontario. 

We would also like to know if there are any other options that could meet the goals for change. 

  • For general background information on the options for reform, see Discussion Paper, page 82, Summary of Options in the Choice of Arrangements.

 

2.     Where Did the Options for Reform Come From?

The full discussion paper reviews laws in Ontario and other places so that we can understand what the possibilities for change are. 

We review laws in Ontario, British Columbia, Newfoundland and Labrador, Saskatchewan, Alberta, Manitoba and the Yukon as well as other places in Canada and other countries. 

Many of the laws are from Canadian provinces and territories that the federal government recognized as having processes that might address some of the concerns of RDSP beneficiaries.[27] 

Under those laws, we consider these different ways to name a person to help adults make decisions about money: 

“Special limited” powers of attorney  Pages 51 to 53

Designation agreements Pages 53 to 55

Supported decision-making authorizations  Pages 56 to 57

Representation agreements  Pages 57 to 62

Co-decision making  Pages 64 to 65

Court applications  Pages 66 to 67

Administrative tribunal hearings  Pages 68 to 69

Trusts  Pages 70 to 76

Representative payees for income and social benefits  Pages 77 to 81

 

3.     Focusing on Key Issues

The options for reform focus on key issues that we heard are the most important ones for this project. These are the key issues and where they are found in the full discussion paper:

Chapter V.B      Possible processes to name a legal representative for RDSP beneficiaries

Chapter V.C      The roles of beneficiaries and legal representatives, and other individuals and organizations

Chapter V.D      Whether organizations should be allowed as legal representatives

Chapter V.E      Protections against financial abuse and legal representatives misusing their powers

The first key issue is the main issue for the LCO’s project. It is about the general arrangement to name a legal representative. The other key issues are areas that need special attention. 

 

B.    What are the Options for Reform?

1.     Possible Processes to Name a Legal Representative for RDSP Beneficiaries

We have proposed nine options for reform for this key issue.

They include some processes that are similar to a power of attorney because they allow adults to choose who they want as a legal representative. We call these “personal appointments”.

The options for reform also include processes that allow an adult or another person (such as a family member or friend) to apply to a court, tribunal or government agency. 

 

These are the types of processes that could be used for the different options for reform:

MAKING A PERSONAL APPOINTMENT: Adults could choose a legal representative for themselves if they meet a test for capacity that is lower than the test to make a power of attorney for property in Ontario (OPTIONS 1 to 4)

APPLYING TO A COURT: Adults or other persons (such as a family member) could apply to a court to name a legal representative (OPTIONS 5 and 7)

APPLYING TO A TRIBUNAL: Adults or other persons (such as a family member) could apply to the Consent and Capacity Board (an Ontario tribunal) to name a legal representative (OPTION 6)

APPLYING TO A GOVERNMENT OFFICE: Adults or other persons (such as a family member) could apply to a government office to name a legal representative (OPTIONS 8 to 9)

In Ontario, we have three different processes: powers of attorney, court orders and capacity assessments (see pages 12 to 14). A new process to name a legal representative for RDSP beneficiaries could include a personal appointment as well as a process through a court, tribunal or government agency. 

 

These are the options for reform in the processes to name a legal representative:      

OPTION 1:     Adults could choose someone to be their legal representative if they meet the common law test for capacity. This test is less strict than the test to make a power of attorney for property in Ontario.

OPTION 2:     Adults could choose someone to be their legal representative if they meet a test for capacity that involves factors, such as the communication of desire and preferences. This test is less strict than the test to make a power of attorney for property in Ontario and it is based on different ways of expressing choices.

OPTION 3:     Adults could choose someone to be their legal representative if they meet the common law test for capacity and if they only need support to make decisions for themselves. This option would be available to adults who can make their own decisions with some help.

OPTION 4:     Adults could name a trustee as a legal representative if they meet the common law test for capacity. This test is less strict than the test to make a power of attorney for property in Ontario and it is based in trust laws.

OPTION 5:     Adults or other persons (such as a family member) could apply to the Superior Court of Justice to name a legal representative who is not a guardian. This could require changes to the Court’s powers under the Substitute Decisions Act, 1992 or another law.

OPTION 6:     Adults or other persons (such as a family member) could apply to the Consent and Capacity Board (an Ontario tribunal). This would require changes to the Consent and Capacity Board’s powers.

OPTION 7:     Adults or other persons (such as a family member) could apply to the Superior Court of Justice to name a trustee as a legal representative. This could require changes to the Court’s powers over trust laws.

OPTION 8:     Adults or other persons (such as a family member) could apply to a government office to name a trustee as a legal representative. This option would mean choosing a government office. It would be based in trust laws.

OPTION 9:     Adults or other persons (such as a family member) could apply to a government office to name a legal representative. This option would mean choosing a government office. It would be similar to programs that are in place for ODSP and the Canada Pension Plan. 

 

The options for reform are explained in the discussion paper. In this summary, we cannot look at them in detail. Instead, we show you where to go for more information.

Here is where you can find information on the options for this key issue in the discussion paper:

  • Figure 2 is a chart showing the options with details about how they might be put in place (pages 90 to 91). A summary of the options for reform comes before Figure 2 (beginning at page 82). 

There are some important things to remember about these options when you are reading about them in the discussion paper. Here are a few examples:

  • The options for personal appointments have tests for capacity that are less strict than the test to make a power of attorney for property in Ontario under the Substitute Decisions Act, 1992. This is because we heard that beneficiaries might have difficulties naming a legal representative under the rules that are in place. (Options 1 to 4)
  • Option 3 is based on supported decision-making arrangements. These are only available to adults who can make their own decisions with some help. 
  • Court, tribunal and government agency processes could be based on assessing an adult’s capacity or an adult’s need for assistance. (Options 5 to 9)
  • A court, tribunal and government agency could give legal representatives powers to make decisions for beneficiaries who cannot make decisions for themselves. They could also involve supported decision-making (see above) or co-decision making (where adul