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