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.
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.
- For more information on why we look at these key issues, please see the section in this summary on “What Concerns Have We Heard About?” at page 11.
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.
- We give examples of how a beneficiary or another person (such as a family member or friend) might use these processes in the Discussion Paper at pages 133 to 138.
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:
- Chapter VI, Options for Reform is the first place to look. It explains the options, and their benefits and challenges.
- 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).
- The Executive Summary also describes the options for reform (pages xiv to xviii).
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 adults and co-decision makers share the power to make decisions). (Options 5, 6 and 9)
- Trusts are often used to assist persons with disabilities manage their money. Some of the options propose that a trustee could be a legal representative. (Options 4, 7 and 8)
- A beneficiary or another person could apply to a government agency to have a legal representative named. This would be similar to processes that are used for programs like ODSP and the Canada Pension Plan. (Options 8 and 9)
Question 6: What options in the choice of arrangements do you think would achieve the goals for reform?
Question 7: Are there other options in the choice of arrangements that you think would achieve the goals for reform?
- To find out where to get information in the discussion paper about words used for these options, such as trusts and co-decision making, see this summary at page 16.
2. The Roles of Beneficiaries and Legal Representatives, and Other Individuals and Organizations
Ensuring that Beneficiaries Can Participate in Decision-Making
Everyone has different abilities. We believe that beneficiaries should be able to make choices that affect them and do as much for themselves as possible with support from other people.
The options for reform for this key issue look at what rules might ensure that beneficiaries can meaningfully participate in making decisions after a legal representative is named.
For example, the law could require that legal representatives have to encourage a beneficiary’s participation, consult with family and friends, and respect other choices about personal care. Legal representatives might also have to ask beneficiaries about their wishes and follow their instructions sometimes.
Question 8: How can RDSP beneficiaries meaningfully participate in decision-making after a legal representative is chosen?
- We look at different laws about how adults can participate in decision-making in the Discussion Paper, Ch. V.C.2, The Activity of Decision-Making.
Legal Representatives’ Powers to Make Decisions About RDSP Money
The options for reform for this key issue also look at what powers legal representatives should have to make decisions about RDSP money.
In this summary, we explain that every RDSP needs a plan holder. Plan holders make decisions about money when it is still in an RDSP. But they do not automatically have powers to help a beneficiary to spend money that they get from an RDSP.
The options for reform ask if a legal representative should have all or some of the plan holder’s powers. They also ask if legal representatives should have more powers to help beneficiaries with spending the money they get from an RDSP.
These different options have very important benefits and challenges that are presented in the discussion paper. We would also like to know what you think the benefits and challenges are.
Question 9: What powers should legal representatives have to make decisions about money inside an RDSP or spending money that is taken out of an RDSP? Why?
- For more information, see Discussion Paper, Ch. V.C.4, The Scope of a Legal Representative’s Authority.
Liability and Third Parties that Rely on Decisions
Another area of this key issue that is considered in the options for reform is how some persons (who are not RDSP beneficiaries) can be protected from different risks.
If beneficiaries, legal representatives and other people (such a family and friends) can all contribute to decisions about an RDSP, it could be confusing or lead to disputes.
The options for reform ask how legal representatives can be protected when they follow the rules about their responsibilities.
The options also look at how financial institutions can feel secure that the directions they get about what to do with an RDSP are valid after a legal representative has been named.
Question 10: How can legal representatives be protected from liability when they follow the rules about their responsibilities?
Question 11: How can financial institutions feel secure that they can follow decisions that are made when a legal representative has been chosen?
- For more information see Discussion Paper, Ch. V.C.3, Liability and Third Parties that Rely on Decisions.
3. Should Organizations Be Allowed as Legal Representatives?
Legal representatives have to meet certain criteria to be named legal representatives. They also have to be willing to carry out their responsibilities.
Usually guardians and attorneys are individuals. Sometimes trust companies are also guardians and attorneys. We heard, though, that some adults may not have access to a trusted person who could be their guardian or attorney under the rules in place. We are looking at whether organizations should be allowed to be legal representatives for RDSP beneficiaries.
Community organizations are often chosen to help adults manage their money under other laws in Ontario and other places. In the discussion paper, we look at these laws. We also consider some of the difficulties with having organizations play this role. For example, we ask questions about what types of organizations should be allowed.
Question 12: Should organizations be allowed to be legal representatives for RDSP beneficiaries?
- For more information, see the Discussion Paper, Ch. V.D, Eligibility and Availability of Legal Representatives.
4. Protections against Legal Representatives Misusing their Powers and Financial Abuse
Giving a person the power to help manage or make decisions about an adult’s money creates an opportunity for financial abuse. For example, legal representatives could use RDSP money for themselves or pressure beneficiaries to spend RDSP money when they do not want to.
The options for reform for this key issue present some rules that could be used to protect beneficiaries against financial abuse and the misuse of a legal representative’s powers.
The options include the rules in place in Ontario. They also include other rules that could work well for RDSPs, such as asking a beneficiary before taking money out of an RDSP or having another person named as a monitor.
Question 13: What rules could be put in place to protect RDSP beneficiaries against financial abuse and the misuse of a legal representative’s powers?
- Figure 3 in the Discussion Paper shows some of the rules that could be used to protect beneficiaries against financial abuse at page 129.
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