Endnotes2017-03-03T18:30:49+00:00

[1] For summary information on the RSDP see: Canada Revenue Agency, “Registered Disability Savings Plan (RDSP) Information Sheet RC4460”, online: http://www.cra-arc.gc.ca/E/pub/tg/rc4460/rc4460-12e.pdf (last accessed: November 20, 2013) [CRA, RDSP].

[2] Income Tax Act, R.S.C. 1985, c.1 (5th Supp) [ITA].

[3]ITA, note 2, s.146.4(1), “disability savings plan”, “qualifying person” and “holder”.

[4] ITA, note 2, s.146.4(1), “qualifying person”.

[5] Substitute Decisions Act, 1992, S.O. 1992, Ch. 30 [SDA].

[6] Government of Canada, Jobs, Growth and Long-Term Prosperity: Economic Action Plan 2012 (Ottawa: March 29, 2012) [Government of Canada, Economic Action Plan], 383.

[7] Government of Canada, Economic Action Plan, note 6, 383.

[8] ITA, note 2, s.146.4(1), “qualifying family member”, “disability savings plan”, “qualifying person” and “holder”.

[9] Government of Canada, Economic Action Plan, note 6, 182-183.      

[10] Government of Canada, Economic Action Plan, note 6, 182-183.

[11] Government of Ontario, A Prosperous and Fair Ontario: 2013 Ontario Budget (Toronto: May 2013) [Government of Ontario, 2013 Ontario Budget], 98-99.

[12]  There are many issues that overlap between this project and the legal capacity, guardianship and decision-making project. To the extent possible, the LCO has framed its research and analysis in this project in a manner that is restricted to the special context of the RDSP and that does not preclude options in the larger project.

[13] The LCO recognizes that there is ongoing debate on the language used to discuss persons with particular disabilities and their experiences and that there is a range of views about the most appropriate language. The LCO does not intend its use of particular terms to be construed as definitive and defers to persons with disabilities themselves as to the most appropriate language. During preliminary consultations for this project, stakeholders identified that individuals affected by this project include persons with developmental, cognitive and psychosocial disabilities across multiple demographic populations, which may intersect with other aspects of identity such as age, gender and culture. Sources that provide insights into how related terms are defined in Ontario include: Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, S.O. 2008, Ch. 14 [SIPDDA]; Accessibility for Ontarians with Disabilities Act, S.O. 2005, Ch. 11 [AODA]; Human Rights Code, R.S.O. 1990, Ch. H.19; Convention on the Rights of Persons with Disabilities, online: http://www.un.org/disabilities/convention/conventionfull.shtml (last accessed: July 4, 2013) [CRPD].

[14] The LCO recognizes that there may be cases where an adult has a limited power of attorney that does not extend to the RDSP.

[15] ITA, note 2, s.118.3.

[16] Janet Mosher, “Lessons in Access to Justice: Racialized Youths and Ontario’s Safe Schools” (2008) 46 Osgoode Hall Law Journal 807, 808.

[17] Mosher, note 16, 808, 818.

[18] Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (Toronto: February 2013), 15.

[19] See: Janice Gross Stein & Adam Cook, “Speaking the Language of Justice: A New Legal Vernacular” in Julia Bass et al, eds., Access to Justice for a New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005), 166.

[20] Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012) [LCO, A Framework for the Law as It Affects Older Adults]; Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012) [LCO, A Framework for the Law as It Affects Persons with Disabilities].

[21] Law Commission of Ontario, The  Framework for the Law as It Affects Older Adults, being Appendix A to A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012),  1.

[22] The Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.) 1982 c.11  [Charter].

[23]CRPD, note 13.

[24] Canada Revenue Agency, “Authorize or Cancel a Representative”, online: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/chng_rps/menu-eng.html (last accessed: November 4, 2013).

[25] Frances Westley & Nino Antadze, “From Total Innovation to System Change: The Case of the Registered Disability Savings Plan, Canada”, online:  http://sig.uwaterloo.ca/sites/default/files/documents/Westley,%20Antadze%20-%20RDSP%20Case%20Study_VMarch1502010.pdf (last accessed: August 13, 2013).  The two research studies were: Richard Shillington, The Disability Savings Plan: Policy Milieu and Model Development (Ottawa: The Caledonian Institute of Social Policy, 2005) and Keith Horner, The Disability Savings Plan: Contributory Estimates and Policy Issues (Ottawa: The Caledonian Institute of Social Policy, 2005).

[26] Westley & Antadze, note 25; Minister of Finance’s Expert Panel on Financial Security for Children with Severe Disabilities, A New Beginning: The Report of the Minister of Finance’s Expert Panel on Financial Security for Children with Severe Disabilities (Ottawa: December 2006) [Minister of Finance’s Expert Panel].

[27] ITA, note 2, s.118.3. Minister of Finance’s Expert Panel, note 26, 29-32.

[28] Department of Finance Canada, Ensuring the Effectiveness of Registered Disability Savings Plans (Ottawa: October 2011) available online: http://www.fin.gc.ca/activty/consult/rdsp-reei-eng.asp (last accessed: November 20, 2013) [Finance Canada, Ensuring Effectiveness].

[29] Canada Disability Savings Act, S.C. 2007, c. 35, s.136.

[30] Department of Finance, Ensuring Effectiveness, note 28; Government of Canada, Economic Action Plan, note 6, 181-183.

[31] For an overview of changes introduced in the Economic Action Plan 2012, see: Jack Styan, “Good News for People with Disabilities in the Federal Budget” (Ottawa: Caledon Institute of Social Policy, 2012), online: http://www.caledoninst.org/Publications/PDF/985ENG.pdf (last accessed: November 20, 2013).

[32] Minister of Finance’s Expert Panel, note 26, 14.

[33] Minister of Finance’s Expert Panel, note 26.

[34] Shillington, note 25; The Allen Consulting Group, International Review of Future Planning Options: Final Report (Final Report to the Department of Families, Housing, Community Services and Indigenous Affairs, January 2009) [Allen Consulting Group], 37-39.

[35] See: Jeanette Katrin Elise Moss, Registered Disability Savings Plan: Making the Shift from Welfare to Wealth, Research Project Submitted in Partial Fulfillment of the Requirements for the Degree of Masters of Arts (Burnaby: Simon Fraser University, 2012); Shillington, note 25; Minister of Finance’s Expert Panel, note 26, 2-7.

[36] Moss explains that “[i]n Canada, as in most of the Western world, social security systems have been deliberate in distinguishing between contributory (earnings-related) benefits, and non-contributory (means-tested, income-tested) benefits”. Moss, note 35, 9.

[37] Shillington, note 25, 5; Westley & Antadze, note 25; Moss, 35.

[38] Shillington, note 25, 9.

[39] Shillington, note 25. See also: Canadian Caregiver Coalition, online: http://www.ccc-ccan.ca/content.php?doc=48 (last accessed: August 12, 2013).

[40]See: Andrew Power et al, Active Citizenship and Disability: Implementing the Personalisation of Support (New York: Cambridge University Press, 2013), 5.

[41] See for instance the definitions of social services in: Power et al, note 40; The Law Commission (United Kingdom), Adult Social Care (London: May 2011), 2.

[42] Lora Patton et al, A Principled Approach: Considering Eligibility Criteria for Disability-Related Support Programs through a Rights-Outcome Lens (Toronto: Law Commission of Ontario, 2010); Power et al, note 40.

[43] Colin Barnes, “Understanding the Social Model of Disability: Past, Present and Future” in Nick Watson et al, eds., Routledge Handbook of Disability Studies (New York: Routledge, 2012); Kerri Joffe (ARCH Disability Law Centre), Enforcing the Rights of Persons with Disabilities in Ontario’s Developmental Services System (Toronto: Law Commission of Ontario, 2010).

[44] Speaking of “disability activists and theorists” who in the 1960s “began to develop new conceptions of disability, noting that by focusing only on the biological and functional condition of the individual, existing models failed to recognize the role played by society in limiting and enabling people”. Patton et al, note 42, 9.

[45] Power et al, note 40, “Introduction”; Barnes, note 43; Joffe, note 43.

[46] Minister of Finance’s Expert Panel, note 26, 2; Moss, note 35, 10.

[47] See for instance: Ontario Disability Support Program Act, 1997, Ont. Reg. 222/98, Parts V – VI; Ontario Works Act, 1997, O. Reg. 134/98, Part VI.

[48]Commission for the Review of Social Assistance, Brighter Prospects: Transforming Social Assistance in Ontario (October 2012) [Commission for the Review of Social Assistance]; Shillington, note 25.

[49] The treatment of income and assets under provincial and territorial income support programs varies by jurisdiction. For more information see: Shillington, note 25; Power et al, note 40, 146-149

[50] Commission for the Review of Social Assistance, note 48, 10.

[51] CRA, RDSP, note 1; O. Reg. 222/98, note 47, s.28; O. Reg. 134/98, note 47, s.39.

[52] Power et al, note 40, 178.

[53] Power et al, note 40, 177-178; Westley & Antadze, note 25; Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP.

[54] Power et al, note 40, 11.

[55] Power et al explain the concept of “personalization” as follows: “[a]t its core, personalisation means a more individual approach to the design and delivery of supports which give people more choice over how they best meet their needs”.  Power et al, note 40, 11.

[56] Carmel Laragy & Goetz Ottmann, “Towards a Framework for Implementing Individual Funding Based on an Austrialian Case Study” (2011) 8:1 Journal of Policy and Practice in Intellectual Disabilities 18, 19, presenting a case study of an Australian program. See also: Power et al, note 40.

[57] Power et al, note 40, 177; Moss, note 35.

[58] Westley & Antadze, note 25, 3-4, citing Jack Styan.

[59] Moss, note 35, 8.

[60] Information provided to the LCO by Employment and Social Development Canada.

[61] ITA, note 2, s.146.4(1).

[62] Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP.

[63] Consultation with Daniel Amsler.

[64] Consultation with HIV and AIDS Legal Clinic Ontario; consultation with the Canadian Centre for Elder Law.

[65] For more information on these approaches, see: LCO, A Framework for the Law as It Affects Older Adults, note 20 and LCO, A Framework for the Law as It Affects Persons with Disabilities, note 20.

[66] Information provided to the LCO by Employment and Social Development Canada.

[67] This has been a particular challenge in British Columbia, where the Public Guardian and Trustee for British Columbia represents children in care. It may not be as relevant in Ontario, where children in care are not represented by the Public Guardian and Trustee for Ontario. PLAN & RDSP Resource Centre, Registered Disability Savings Plan: Implications for Children-in-Care (Vancouver: August 2011).

[68] ITA, note 2, s. 146.4(1), “qualifying family member”, “qualifying person”.

[69] Consultation with HIV and AIDS Legal Clinic Ontario; consultation with Legal Aid Ontario; consultation with Mississauga Community Legal Services.

[70] Consultation with HIV and AIDS Legal Clinic Ontario.

[71] Canada Revenue Agency, “Disability Tax Credit Certificate” online: http://www.cra-arc.gc.ca/E/pbg/tf/t2201/t2201-12e.pdf (last accessed: November 20, 2013 ) [CRA, DTC Certificate]; ITA, note 2, s.118.3; Ontario Ministry of Community and Social Services, “Income Support: Disability/Health Eligibility” online: http://www.mcss.gov.on.ca/en/mcss/programs/social/odsp/income_support/eligibility/disability_Health.aspx (last accessed: November 20, 2013); Ontario Disability Support Program Act, 1997, S.O. 1997, Ch. 25, Schedule B [ODSPA], s.4.

[72] Consultation with Pooran Law; Consultation with Goddard, Gamage and Stephens LLP. A recipient may use the RDSP in conjunction with other mechanisms to maximize the amount of funds that are not considered assets or income in determining financial eligibility for income support under ODSP. In Ontario, ODSP has detailed policy rules regarding the treatment of personal injury settlements, inheritances and life insurance proceeds. For example, funds up to $100,000 held in trust derived from an inheritance or the proceeds of a life insurance policy are not considered assets for the purposes of determining financial eligibility for income support. Interest earned from and re-invested in the trust is not considered income. Payments from such a trust or a life insurance policy used for approved disability related expenses are not included as income. See: Ontario Disability Support Program, Income Support Directives, online: http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/odsp_Incomesupport.aspx (last accessed: November 24, 2013) [ODSP Directives], 4.6, 4.7, 4.8.

[73] Consultation with Pooran Law; consultation with Community Living Ontario; consultation with the Schizophrenia Society of Ontario.

[74] See for instance: The National Benefit Authority, online: http://www.thenba.ca/about-us.html (last accessed: September 23, 2013).

[75] Information provided to the LCO by Employment and Social Development Canada.

[76] CRA determines an applicant’s eligibility for the RDSP based on the DTC eligibility criteria. CRA also registers each plan that conforms to the statutory rules and it monitors and responds to reports of non-compliance with the plan conditions. ESDC’s role includes similar activities in administering the federal government’s grants and bonds for the RDSP. ESDC also approves financial institutions as “issuers” of the RDSP to the public, funds outreach to increase uptake and commissions expert research on program effectiveness.

[77] Consultation with CIBC.

[78] For instance, although the ITA allows there to be multiple plan holders, financial institutions may limit the number to one. Specimen plans are customized into forms and contracts that are used when opening an RDSP at a financial institution. They include an application and a declaration of trust. A pro forma example of a specimen plan is available on the CRA website. Canada Revenue Agency, “Sample Pro Forma Declaration of Trust”, online:http://www.cra-arc.gc.ca/tx/rgstrd/rdsp/prfrm-eng.html (last accessed: November 20, 2013).

[79] Consultation with CRA.

[80] CRA, DTC Certificate, note 71.

[81] ITA, note 2, s.146.4(1), “disability savings plan”, “holder”.

[82] Finance Canada, Ensuring Effectiveness, note 28.

[83]Finance Canada, Ensuring Effectiveness, note 28; ITA, note 2, s.146.4(1) “disability savings plan”, “qualifying person”, “holder”.

[84] Under the common law, a transaction could be voidable if it is entered into with an adult who does not meet the threshold for capacity to contract and the other party has actual or constructive knowledge of the adult’s incapacity. In its Report on Common Law Tests of Capacity, the British Columbia Law Institute explains that the test for capacity to enter into a contract attempts to strike a balance between the interests of persons with diminished capacity as well as “the material interests of the other contracting party and the broader social interest in security of contracts”. The British Columbia Law Institute summarizes the basic elements of the common law test of capacity to enter into a contract as follows: “a contracting party must be able to ‘understand [the contract’s] terms’; this contracting party must also be able ‘[to form] a rational judgment of its effect upon his interests’; and the other contracting party must not have ‘actual or constructive’ knowledge of the first contracting party’s ‘mental incompetency’”. British Columbia Law Institute, Report on Common Law Tests of Capacity (Vancouver: September 2013) [BCLI], 133-134, 136-137.

[85] ITA, note 2, s.146.4(1), “disability savings plan”, “qualifying person”, “holder”.

[86] ITA, note 2, s.146.4(1), “disability savings plan”, “qualifying person”, “holder”.

[87] Government of Canada, Economic Action Plan, note 6, 182, referring to cases where “adults with disabilities have experienced problems in establishing a plan because their capacity to enter into a contract is in doubt”.

[88] Government of Canada, Ensuring Effectiveness, note 28; Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP; Consultation with Finance Canada.

[89] Government of Canada, Economic Action Plan, note 6, 182.

[90] ITA, note 2, s. 146.4(1), “disability savings plan”, “qualifying person”, “qualifying family member”.

[91] ITA, note 2, s. 146.4(1.5).

[92] ITA, note 2, s. 146.4(1), “qualifying person”.

[93] For instance: Consultation with CIBC; consultation with Community Living British Columbia; consultation with Mississauga Community Legal Services.

[94] Generally, DAPs can be withdrawn at any time before LDAPs begin as long as contributions from private sources exceed government contributions. Currently, a withdrawal results in all government assistance paid into the plan in the prior 10 years being paid back to the government. Effective January 1, 2014, the same 10 year period applies, but each withdrawal will cause a payment back of government assistance at a rate of $3 of government assistance for $1 of withdrawal. For more information on the RDSP plan conditions, see CRA, RDSP, note 1.

[95] We have used the term “capacity laws” in this discussion paper to refer in a general manner to domestic laws that create entitlements and restrictions based on concepts of capacity. The term is intended to include, but is not restricted to, substitute decision-making laws, the common law and relevant policies in the income support and social benefits sectors.

[96] SDA, note 5, s.2.

[97] For a discussion of the term “mental competency” as distinguished from other terms, such as “decision making capacity”, see: David N. Weisstub, Chair, Enquiry on Mental Competency: Final Report (Toronto: Queen’s Printer for Ontario, 1990) [Weisstub Report].

[98] Lawrence A. Frolik, “Commentary: Statutory Definitions of Incapacity: The Need for a Medical Basis” in Marshall B. Kapp et al, eds., Older Adults’ Decision-Making and the Law (New York: Springer Publishing Company Inc., 1996), 41.

[99] Charles P. Sabatino & Erica Wood, “The Conceptualization of Legal Capacity of Older Persons in Western Law” in Israel Doron & Ann Sodon, eds., Beyond Elder Law: New Directions in Law and Aging (New York: Springer, 2012), 36.

[100] Weisstub Report, note 97.

[101] Sabatino & Wood, note 99, 35-37.

[102] Sabatino & Wood, note 99, 35-37.

[103] See for instance: Kathleen C. Glass, “Refining Definitions and Devising Instruments: Two Decades of Assessing Mental Competence” (1997) 20:1 International Journal of Law and Psychiatry 5, 10; Kristin Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond” (2012) 44 Colum. Hum. Rts. L. Rev. 93; Leslie Salzman, “Guardianship for Persons with Mental Illness – a Legal and Appropriate Alternative?” (2010-2011) 4 St. Louis U.J. Health L. & Pol’y 279, 279; Israel Doron, “From Guardianship to Long-Term Care: Law and Caring or the Elderly” Doctorate of Jurisprudence Thesis (Toronto: Osgoode Hall Law School, October 2000).

[104] Michael Bach & Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Toronto: Law Commission of Ontario, 2010), 38-39; Margaret Hall, “Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability” (2012) 58 McGill L.J. 61, 67.

[105] Hall, note 104, 66.

[106] Hall, note 104; Doron, note 103, 22-24; Bach & Kerzner, note 104, 38.

[107] Weisstub Report, note 97, 48-50.

[108] Hall, note 104, 65.

[109] Rather than sitting on a continuum with autonomy, the protection of individual and community interests are occasionally described as separate values. Weisstub Report, note 97, Ch. IV; Starson v. Swayze, [2003] 1 S.C.R. 722, para. 6. 

[110] Weisstub Report, note 97, 51-53.

[111]Capacity Assessment Office, Ministry of the Attorney General, Guidelines for Conducting Assessments of Capacity (Toronto: Ministry of the Attorney General, 2005), II.2-II.5.

[112] BCLI, note 84, Ch. IX.

[113] Bach & Kerzner, note 104, 38.

[114] Weisstub Report, note 97, 54.

[115]Doron, note 103.

[116] Michael Bach and Lana Kerzner frame this issue in terms of negative and positive liberty. Negative liberty guards individual choice by warding off undesired intrusion, coercion and constraints. On the other hand, positive liberty promotes autonomy through enabling conditions, such as informal care from family, professional advice and government social services. Bach and Kerzner explain that “[i]n a positive liberty view of autonomy we do not exercise our self-determination as isolated, individual selves, but rather ‘relationally,’ interdependently and intersubjectively with others”. Bach and Kerzner argue that negative and positive liberty approaches to autonomy are not mutually exclusive. Instead, they are “entirely interdependent” and “are essential to a full and robust theory of autonomy”. Bach & Kerzner, note 104, 38-44.

[117] The term “reimagining” has been borrowed from Hall, note 104, 86.

[118] See for instance: Catriona Mackenzie & Nathalie Stoljar, eds., Relational Autonomy, Feminist Perspectives on Autonomy, Agency and the Social Self (New York: Oxford University Press, 2000); Bach & Kerzer, note 104, 40.

[119] Office of the Public Advocate for Victoria, Australia, Supported Decision-Making: Background and Discussion Paper (Victoria, Australia: Office of the Public Advocate, 2009), 3-4, describing supported decision-making.

[120] Hall, note 104, 86.

[121] Wendy Hulko & Louise Stern, “Cultural Safety, Decision-Making and Dementia: Troubling Notions of Autonomy and Personhood” in Deborah O’Connor and Barbara Purves, eds., Decision-Making, Personhood and Dementia (London: Jessica Kingsley Publishers, 2009).

[122] Hall, note 104, 68-71. See also: Gerard Quinn, “Personhood and Legal Capacity Perspectives on the Paradigm Shift of Article 12 CRPD” Harvard Law School Project on Disability Conference (20 February, 2010), online: http://www.nuigalway.ie/cdlp/staff/gerard_quinn.html (last accessed: November 20, 2013).

[123] Jennifer Wright, “Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards in the USA” (2010) 33 International Journal of Law and Psychiatry 350, 356-357, also referring to Martha Holstein, Keynote speech, the University of Minnesota 2009 Summer Institute “Ethical Issues in an Aging Society: A Critical Look, Ethics and Aging” (June 2, 2009).

[124] Victorian Law Reform Commission, Guardianship: Final Report (April 2012) [VLRC], Ch.6. See also: Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67, (September 2010) [QLRC], Vol. 1, Ch.4.

[125] LCO, A Framework for the Law as it Affects Persons with Disabilities, note 20, 4.

[126] Bach & Kerzner, note 104, 19. The term ‘”functional approach” is used synomously in this discussion paper with the term “cognitive approach”, unless noted otherwise.

[127] QLRC, note 124, Vol. 1, 7.102.

[128] QLRC, note 124, Vol.1, 7.104.

[129] Glen, note 103; Weisstub Report, note 97; Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: 1987) [Fram Report]; Sarah Burningham, “Developments in Canadian Adult Guardianship and Co-Decision-Making Law” (2009) 18 Dalhousie J. Legal Stud. 120.

[130] Michael Bach, The Right to Legal Capacity under the UN Convention on the Rights of Persons with Disabilities: Key Concepts and Directions from Law Reform (Toronto: Institute for Research and Development on Inclusion and Society, 2009), 8; Bach & Kerzner, note 104.

[131] Bach & Kerzner, note 104, 60, referring also to Gerard Quinn. Quinn, note 122.

[132] Bach & Kerzner, note 104, 60-66. See also: Michael Bach, “Supported Decision Making: Legal Fiction or Grounded Practice?” (draft), prepared for In From the Margins: New Foundations for Personhood and Legal Capacity in the 21st Century (University of British Columbia, April 29 – May 1, 2011); Louis Charland, “Decision-Making Capacity” in The Stanford Encyclopedia of Philosophy, Edward N. Zalta, ed., online: http://plato.stanford.edu/archives/sum2011/entries/decision-capacity/ (last accessed: November 20, 2013).

[133] See for instance SDA, note 5, s.66.

[134] The CRPD has 158 signatories and 138 parties out of 193 UN Member States as at November 6, 2013. United Nations Treaty Collection, “Status of Treaties: Convention on the Rights of Persons with Disabilities,” online: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en (last accessed: November 20, 2013).

[135] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) guarantees that Parties “accord to women equality with men before the law” and “a legal capacity identical to that of men and the same opportunities to exercise that capacity”, online:  http://www.un.org/womenwatch/daw/cedaw/cedaw.htm. (last accessed: November 20, 2013), Arts. 15.1, 15.2. United Nations Office of the High Commissioner for Human Rights, Legal Capacity, Background Conference Document (New York & Geneva: OHCHR, 2005).

[136] Ireland Law Reform Commission, Report Vulnerable Adults and the Law, LRC 83-2006 [ILRC], 2.31.

[137] ILRC, note 136, 2.31 – 2.41.

[138]Western Canada Law Reform Agencies, Enduring Powers of Attorney: Areas for Reform, Final Report 2008 [WCLRA], 2.

[139] WCLRA, note 138, 2.

[140] SDA, note 5, s.9; D’Arcy Hiltz and Anita Szigeti, A Guide to Consent & Capacity Law in Ontario (Markham, Ontario: LexisNexis Canada Inc., 2012), 27.

[141] The term “alternative decision-making arrangements” is found in VLRC, note 124, 7.1.

[142] Sabatino & Wood, note 99, 38; Office of the Public Advocate, note 119; Glen, note 103.

[143] See for instance: The Adult Guardianship and Co-Decision-Making Act, S.S. 2000, Ch. A-5.3, ss.3, 40.

[144] See for instance: SDA, note 5, s.7(7). The SDA does not limit what can be specified as a contingency to bring a POA into effect.

[145] Ann Soden, “Beyond Capacity” (2011) 5:2 McGill JL & Health 295, 299.

[146] Hall, note 104.

[147] Robert M. Gordon, “Adult Protection Legislation in Canada Models, Issues, and Problems” (2001) 24 International Journal of Law and Psychiatry 117 [Gordon, Adult Protection], 118, writing on adult protection legislation.

[148] See for instance: The Vulnerable Persons Living with a Mental Disability Act, C.C.S.M. c.V90; Power et al, note 40.

[149] Adult protection legislation often allows interventions based on suspected abuse and neglect. There is considerable variation in adult protection legislation, which cannot be reviewed here. However, it should be noted that there is extensive critical analysis that has raised concerns about the intrusiveness and “extreme protectionism at the heart of such statutes [as being], odds with the value placed in Canadian society on self-determination”. Manitoba Law Reform Commission, Adult Protection and Elder Abuse (Winnipeg: 1999), 38-39. Gordon, Adult Protection, note 147, 56-57, 102-106.

[150] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in R.S.C. 1985, App II, No 5 [Constitution Act, 1867], ss. 92(13), 92(16).

[151] Constitution Act, 1867, note 150, s. 92(7); Martha Jackman, “Constitutional Jurisdiction Over Health in Canada” (2000) 8 Health LJ 96, 111.

[152] Jackman, note 151, 112.

[153] Canadian Association for Community Living, PLAN, RDSP Resource Centre & Pooran Law, “Enabling Legal Capacity of Adults with Severe Disabilities to Open RDSPs: A Brief Prepared for the Honourable Jim Flaherty, Minister of Finance” (Submitted to the RDSP Review, November 2011) [CACL, PLAN, RDSP Resource Centre & Pooran Law, RDSP Review Brief] Appendix 2.

[154] Government of Canada, Economic Action Plan, note 6,180-183. It should be noted that the Minister of Finance has also asked the Senate Committee on Banking, Trade and Commerce to examine and report on the “ability of individuals to establish [an RDSP], with particular emphasis on legal representation and the ability of individuals to enter into a contract”. A motion by the Standing Committee to the Senate to approve the study was adjourned. Standing Senate Committee on Banking, Trade and Commerce, Debate of the Senate, Tuesday April 30, 2013 (Hansard).

[155] Fram Report, note 129; Weisstub Report, note 97.

[156] SDA, note 5, s.2(3).

[157] SDA, note 5, ss.8, 47.

[158] Laws in the income support and social benefits sectors that provide a means to appoint a person in order to assist recipients in managing their payments are restricted to those programs only; they cannot be used to establish a legal representative for RDSP beneficiaries. This section is limited to a summary of applicable SDA provisions. Laws in the income support and social benefits sectors in Ontario and other jurisdictions are considered separately in Chapter V.B.5.

[159] SDA, note 5, s. 7(2).

[160] Ontario Ministry of the Attorney General, Powers of Attorney (Queen’s Printer for Ontario, 2012), online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf (last accessed: November 6, 2013) [Ministry of the Attorney General, Powers of Attorney].

[161] Ministry of the Attorney General, Powers of Attorney, note 160.

[162] Saskatchewan Ministry of Justice and Attorney General, RDSPs and Adults with Mental Disabilities (March 2011), online: http://www.justice.gov.sk.ca/RDSPs-and-Adults-with-Mental-Disabilities.pdf (last accessed: November 20, 2013) [Saskatchewan Ministry of Justice and Attorney General].

[163] SDA, note 5, ss.7,9; Hiltz and Szigeti, note 140, 27.

[164] Judith Wahl, “Capacity and Capacity Assessment in Ontario” CBA Elder Law Programme (March 24-25, 2006 Ottawa Ontario), 14; SDA, note 5, s.9(3).

[165] SDA, note 5, ss. 6,8,9.

[166] Gerald Robertson, “Enduring Powers of Attorney and Health Care Directives,” in Ann Soden, ed, Advising the Older Client (Markham: LexisNexis Canada, 2005) 109, 117-118.

[167] SDA, note 5, s. 8.

[168] SDA, note 5, s.47.

[169] SDA, note 5, s.7(4); Ministry of the Attorney General, Powers of Attorney, note 160, Part 2.

[170] Ministry of the Attorney General, Powers of Attorney, note 160, Part 3; SDA, note 5, ss. 11, 12.

[171] SDA, note 5, ss. 7(4), 7(5), 12.

[172] SDA, note 5, s.12; Hiltz and Szgeti, note 140, 29.

[173] SDA, note 5, s. 12.

[174] SDA, note 5, ss.22,72,77.

[175] SDA, note 5, s.6.

[176] Capacity Assessment Office, note 111, II.2-II.4.

[177] SDA, note 5, s.22 [emphasis added].

[178] The Office of the Public Guardian and Trustee, Ministry of the Attorney General, Duties and Powers of a Guardian of Property (Queen’s Printer for Ontario, 2013), available online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/guardduties.asp#why (last accessed: August 28, 2013) [OPGT, Duties and Powers].

[179] Section 22 of the SDA reads:

22.  (1)  The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

(2)  An application may be made under subsection (1) even though there is a statutory guardian.

(3)  The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

[180] See for instance: Lehtonen v Neill, [2013] O.J. No. 1178 (S.C.J.); Deschamps v Deschamps, [1997] O.J. No. 4894; Re Koch, 1997 CanLII 12138 (S.C.J.), para.20.

[181] Re Koch, note 180, para. 20 [emphasis in the original].

[182] Gray v Ontario, 2006 CanLII 1764 (Ont. Div.Ct.), para.  47.

[183] Bach & Kerzner, note 104, 53. See also Lana Kerzner, Paving the Way to Full Realization of the CRPD’s Rights to Legal Capacity and Supported Decision-Making: A Canadian Perspective, prepared for In From the Margins: New Foundations for Personhood and Legal Capacity in the 21st Century (University of British Columbia, April 29 – May 1, 2011), 45-46; Fram Report, note 129, 113.

[184] SDA, note 5, ss.72, 74, 77; Capacity Assessment Office, note 111, Part VI: The Needs Statement, VI.1.

[185] Capacity Assessment Office, note 111, VI.2. 

[186] Capacity Assessment Office, note 111, VI.2-VI.3.

[187] This commissioned research paper, “‘Alternative Courses of Action’ under the Substitute Decisions Act” will be carried out by Lana Kerzner and Michael Bach. For more information see:  http://lco-cdo.org/en/capacity-guardianship-call-for-papers (last accessed: November 20, 2013).

[188] SDA, note 5, ss.22, 25.

[189] SDA, note 5, s. 69.

[190] Ministry of the Attorney General, The Role of the Office of the Public Guardian and Trustee (Queen’s Printer for Ontario, 2006), online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/the_role_of_the_office_of_the_opgt.pdf (last accessed: November 20, 2013); SDA, note 5, s.3.

[191]SDA, note 5, ss.26, 28; Hiltz and Szigeti, note 140, 37, 49.

[192] Fram Report, note 129, 104.

[193] SDA, note 5, s.16.

[194] SDA, note 5, s. 17.

[195] SDA, note 5, ss.78, 90; O. Reg. 460/05.

[196] Capacity Assessment Office, note 111, Part I “Ethical and Legal Considerations”.

[197] Capacity Assessment Office, note 111, Part II “Mental Capacity: ’Understand” and “Appreciate’”.

[198] Abrams v. Abrams, 2008 CanLII 67884 (Ont. S.C.J.), 50, where Strathy J. writes on court-ordered assessments, citing Flynn et al v. Flynn (December 18, 2007, unreported, Ont. S.C. J., Court file no. 03-66/07).

[199] SDA, note 5, s.78. If an adult refuses an assessment, a court proceeding to determine a person’s capacity can still be brought under s.22 of the SDA.

[200] SDA, note 5, ss.20, 20.1, 20.2.

[201] SDA, note 5, ss.16,16.1, 20.

[202] Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP.

[203] Consultation with Community Living Ontario; consultation with Pooran Law; consultation with Vincent De Angelis Barrister and Solicitor; consultation with the Canadian Association for Community Living; consultation with the Planned Lifetime Advocacy Centre (PLAN); CACL, PLAN, RDSP Resource Centre & Pooran Law, RDSP Review Brief, note 153.

[204] Consultation with the Schizophrenia Society of Ontario; consultation with Community Living Ontario.

[205] Consultation with the Schizophrenia Society of Ontario; consultation with D’Arcy J. Hiltz Barrister and Solicitor.

[206] Consultation with Community Living Ontario; consultation with ARCH Disability Law Centre; consultation with CIBC; consultation with Finance Canada; consultation with Saara Chetner and Risa Stone (Counsel for the Office of the Public Guardian and Trustee); consultation with Vincent De Angelis Barrister and Solicitor.

[207] Information provided to the LCO by Employment and Social Development Canada.

[208]Comment provided to the LCO by Joanne Taylor Executive Director of Nidus.

[209] Consultation with Pooran Law.

[210] Consultation with ARCH Disability Law Centre.

[211] Consultation with Community Living British Columbia; consultation with the Canadian Association for Community Living.

[212] Consultation with ARCH Disability Law Centre; consultation with the Schizophrenia Society of Ontario.

[213] Consultation with Community Living Ontario; consultation with the Canadian Association for Community Living; consultation with Lana Kerzner Barrister and Solicitor.

[214] Peterborough Poverty Reduction Network Income Security Work Group, “Ensuring the Effectiveness of Registered Disability Savings Plans: Issues and Recommendations” (Submitted to the Federal RDSP Review, December 2011), 15, online: http://www.pprn.ca/income.php (last accessed: September 3, 2013).

[215] Wahl, note 164, 15.

[216] Capacity Assessment Office, note 111.

[217] Consultation with Goddard, Gamage and Stephens LLP.

[218] Information provided to the LCO by Nimali Gamage.

[219] The SDA does not stipulate that a substitute decision-maker must be a natural person; however, it is generally accepted that this must be the case, except where the substitute is the OPGT or a trust company.

[220] Consultation with Goddard, Gamage and Stephens LLP; consultation with the HIV and AIDS Legal Clinic Ontario; consultation with the Schizophrenia Society of Ontario.

[221] Consultation with Goddard, Gamage and Stephens LLP.

[222] Finance Canada, Ensuring Effectiveness, note 28.

[223] Consultation with CIBC.

[224] Consultation with BMO.

[225] Consultation with CIBC; consultation with Vincent De Angelis Barrister and Solicitor; consultation with Finance Canada.

[226] Consultation with CIBC.

[227] Consultation with the Canadian Association for Community Living.

[228] Consultation with CIBC.

[229] Consultation with the Planned Lifetime Advocacy Network (PLAN); consultation with Saara Chetner and Risa Stone (Counsel for the Office of the Public Guardian and Trustee); consultation with Laura Metrick (Counsel for the Ministry of the Attorney General); consultation with BMO; consultation with Goddard, Gamage and Stephens LLP.

[230] Consultation with Lana Kerzner Barrister and Solicitor.

[231] Kerzner, note 183, citing Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

[232] Kerzner, note 183.

[233] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate, online: http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate/4-duty-accommodate (last accessed: November 20, 2013) [OHRC, Policy and Guidelines on Disability], Ch. 4.

[234] OHRC, Policy and Guidelines on Disability, note 233, 3.

[235] OHRC, Policy and Guidelines on Disability, note 233, 5.

[236] OHRC, Minds the Matter: Report on the Consultation on Human Rights, Mental Health and Addictions (Toronto: Ontario Human Rights Commission, 2012), online: http://www.ohrc.on.ca/sites/default/files/Minds%20that%20matter_Report%20on%20the%20consultation%20on%20human%20rights%2C%20mental%20health%20and%20addictions.pdf (last accessed: November 20, 2013) [OHRC, Minds that Matter].

[237] OHRC, Minds that Matter, note 236, 77-79.

[238] Kacan v. Ontario Public Service Employees Union 2010 HRTC 795 [Kacan].

[239] Kacan, note 238, para.12.

[240] Kacan, note 238, paras. 24-25.

[241] Kacan, note 238, para. 14 [emphasis added].

[242]AODA, note 13; AccessON, About the Accessibility for Ontarians with Disabilities Act, 2005 (Queen’s Printer for Ontario, 2008), online: http://www.mcss.gov.on.ca/documents/en/mcss/publications/accessibility/AboutAODAWeb20080311EN.pdf (last accessed: September 4, 2013).

[243] Ontario Human Rights Commission, Working Together: The Ontario Human Rights Code and the Accessibility for Ontarian with Disabilities Act, Part 1, online: http://www.ohrc.on.ca/en/learning/working-together-ontario-human-rights-code-and-accessibility-ontarians-disabilities-act/part-1-introduction (last accessed: September 9, 2013).

[244] Integrated Accessibility Standards, O.Reg. 191/11, s.12.

[245] Accessibility Standards for Customer Service, O.Reg. 429/07, s.3.

[246] Kerzner, note 183, 17.

[247] CRPD, note 13, Art.1.

[248] See for instance: Arlene Kanter, “The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities,” (2007) 34 Syracuse J. Int’l L. & Com. 287; Glen, note 103; Kerzner, note 183; Michael Ashley Stein and Janet E. Lord, “Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities” in  Oddný Mjöll Arnardóttir & Gerard Quinn, eds, The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden: Martinus Nijhoff, 2009).

[249] CRPD, note 13, Art.4.

[250] Kerzner, note 183, 21-22.

[251] United Nations Treaty Collection, “Status of Treaties: Convention on the Rights of Persons with Disabilities,” online: http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-15&chapter=4&lang=en#EndDec (last accessed: November 20, 2013), Government of Canada, “Declaration and Reservation”. [Government of Canada, CRPD Declaration and Reservation]

[252] CRPD, note 13, Arts.3,9.1; Preamble (a),(m),(n).

[253] CRPD, note 13, Arts. 2, 4(f), 5.3.

[254] CRPD, note 13, Arts, 24.1(b), 19,14.

[255] CRPD, note 13, Art. 12.

[256] Amita Dhanda, “Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?” (2007) 34 Syracuse J Intl L & Com 429.

[257] Tina Minkowitz, “Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities,” in Bernadette McSherry & Penelope Weller, eds., Rethinking Rights-Based Mental Health Laws (Oxford: Hart Publishing, 2010).

[258] See for instance: Bach, note 130, 5-6.

[259] Government of Canada, CRPD Declaration and Reservation, note 251.

[260] Government of Canada, CRPD Declaration and Reservation, note 251.

[261] Government of Canada, CRPD Declaration and Reservation, note 251.

[262] CRPD, note 13, Art.12.

[263] Those specific equality rights are “subject to the provisions” of Article 12 as a whole and, therefore, may be limited by the interpretation of the term “legal capacity”.

[264] CRPD, note 13, Art.12.

[265] Fram Report, note 129, 58.

[266] The Office of the Public Guardian and Trustee, Ministry of the Attorney General, The Role of the Public Guardian and Trustee (Queen’s Printer for Ontario, 2006), 3 [OPGT, The Role of the Public Guardian and Trustee].

[267] SDA, note 5, ss. 17,27; OPGT, The Role of the Public Guardian and Trustee, note 266, 3-4.

[268] The Office of the Public Guardian and Trustee, Annual Report of the Public Guardian and Trustee 2009-2010, online: www.attorneygeneral.jus.gov.on.ca/english/family/…/MsgFromPGT.pdf (last accessed: November 7, 2013).

[269] Consent and Capacity Board, Annual Report 2010-2011, online: http://www.ccboard.on.ca/scripts/english/governance/Annual-Reports.asp (last accessed: September 5, 2013), 3. [CCB, Annual Report 2010-2011]

[270] CCB, Annual Report 2010-2011, note 269, 5.

[271] CCB, Annual Report 2010-2011, note 269.

[272] Information provided to the LCO by the Consent and Capacity Board.

[273] Information provided to the LCO by the Ontario Disability Support Program.

[274] For a brief history of the treatment of persons with intellectual disabilities in Ontario, see Joffe, note 43, 5.

[275] SIPDDA, note 13, s. 4(1).

[276] Ministry of Community and Social Services Act, R.S.O. 1990, c M.20, s.11; Ministry of Community and Social Services, Results-Based Plan Briefing Book 2011-2012, online: http://www.mcss.gov.on.ca/en/mcss/publications/about/planBriefing11/toc_planbrief11.aspx (last accessed: September 9, 2013).

[277] Government of Ontario, 2013 Ontario Budget, note 11, 98.

[278] The commissioned research paper, “Understanding the Lived Experience of Assisted and Supported Decision-Making in Canada” will be undertaken by the Canadian Centre for Elder Law. For more information see:  http://lco-cdo.org/en/capacity-guardianship-call-for-papers (last accessed: 20 November 2013).

[279]Saskatchewan Ministry of Justice and Attorney General, note 162.

[280] Saskatchewan Ministry of Justice and Attorney General, note 162, 3.

[281] See: A.J. McClean. Review of Representation Agreements and Enduring Powers of Attorney (Undertaken for the Attorney General of the Province of British Columbia, February 2002), 50-51, comparing the test under British Columbia statute to the common law test.

[282] Powers of Attorney Act, 2002, S.S. 2002, c. P-20.3, s.4.

[283] Saskatchewan Ministry of Justice and Attorney General, note 162, 4.

[284] The information booklet states “[i]f the adult with a mental disability understands that this document will allow a parent or family member to set up and deal with a savings account, the parties should consider making such a power of attorney”.  Saskatchewan Ministry of Justice and Attorney General, note 162, 5.

[285] Saskatchewan Ministry of Justice and Attorney General, note 162, 5.

[286] The ITA does not explicitly provide for who can request DAPs or LDAPs prior to the mandatory start date. There is a specific provision allowing a beneficiary who is not a holder of a primarily government assisted plan, aged 27 to 58, to request DAPS within the legislated limits. Financial institutions accept plan holders as those who determine the amount and timing of DAPs and LDAPs, outside the mandatory requirements of the ITA. ITA, note 2, s.146.4(4)(n)(iii).

[287] ITA, note2, s. 146.4(4)(m).

[288] A beneficiary can request DAPs if he or she is a plan holder. The ITA also allows a beneficiary who is not a holder of a primarily government assisted plan, aged 27-58, to request DAPS within the legislated limits. ITA, note 2, s. 146.4(4)(n)(iii).

[289] Consultation with Daniel Amsler.

[290] The Adult and Co-Decision Making Act, note 143.

[291] Saskatchewan Ministry of Justice and Attorney General, note 162, 5.

[292] SDA, note 5, s.77.

[293] Enduring Powers of Attorney Act, R.S.N.L. 1990, c.E-11; An Act to Amend the Enduring Powers of Attorney Act, S.N.L. 2012, Ch.4 (assented to June 27, 2012); An Act to Amend an Act to Amend the Enduring Powers of Attorney Act, S.N.L. 2012, Ch.45 (assented to December 22, 2012).

[294] Debates of the House of Assembly (Hansard), 47th General Assembly, 1st Session 2012, March 20, 2012. 

[295] Vincent De Angelis, “Appointing Designates to Open and Operate RDSPs, Newfoundland and Labrador’s Bill 3: An Act to Amend the Enduring Powers of Attorney Act” Deadbeat (August 2012) 30:4 (Ontario Bar Association Trusts & Estates Law Section), 5.

[296] De Angelis, note 295, 5.

[297] Representation Agreement Act, R.S.B.C. 1996, Ch. 405.

[298] Representation Agreement Act, note 297, s.8.

[299] An Act to Amend an Act to Amend the Enduring Powers of Attorney Act, note 293, s.2.

[300] An Act to Amend the Enduring Powers of Attorney Act, note 293, s.16(12)(a).

[301] An Act to Amend the Enduring Powers of Attorney Act, note 293, s.16(6).

[302] De Angelis, note 295, 5.

[303] An Act to Amend the Enduring Powers of Attorney Act, note 293, ss. 16,20,

[304] Terry Carney & Fleur Beaupert, “Public and Private Bricolage – Challenges Balancing Law, Services and Civil Society in Advancing the CRPD Supported Decision-Making” (2013) 36:1 UNSW Law Journal 175, 180, also quoting Robert Gordon, “The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making” (2000) 23 International Journal of Law and Psychiatry 61 [Gordon, Assisted (Supported) Decision-Making] 65, writing on what he calls “assisted” decision-making. 

[305] Decision Making, Support and Protection to Adults Act, S.Y. 2003, c.21.

[306] Decision Making, Support and Protection to Adults Act, note 305, Schedule A, s. 4.

[307] Michelle Browning, Report to Investigate New Models of Guardianship and the Emerging Practice of Supported Decision-Making (Winston Churchill Memorial Trust of Australia, 2010), 22, 27; Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services. 

[308] Browning, note 307, 23.

[309] VLRC, note 124, 8.18.

[310] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services; Browning, note 307, 28. See also VLRC, note 124, 129.

[311] VLRC, note 124, 8.17.

[312] In the Yukon, a third party can make an application to set aside an agreement reached with an adult who did not consult with his or her supporter. For Lecturer Shih-Ning Then this provision creates an uneasy compromise: “[h]ere, a clear tension exists between protecting the adult and allowing that adult to make ‘bad’ decisions. This is particularly so because decision-making capacity is explicitly preserved by these agreements”. Shih-Ning Then, “Evolution and Innovation in Guardianship Laws: Assisted Decision-Making” (2013) 35 Sydney L. Rev. 133, 150.

[313] Government of Alberta, “Supported Decision-Making Adult Guardianship and Trusteeship Act” online: http://humanservices.alberta.ca/documents/opg-guardianship-brochure-opg5609.pdf (last accessed: November 20, 2013).

[314] Yukon Health and Social Services, “Adult Protection and Decision-Making Act – Supported Decision-Making Agreements” online:  http://www.hss.gov.yk.ca/supported_agreements.php (last accessed: November 20, 2013)

[315] VLRC, note 124, 8.60-8.63.

[316] These concerns were submitted to the VLRC by members of the public in the course of its review of guardianship laws in Victoria, Australia. VLRC, note 124, para. 8.92.

[317] Consultation with the Office of the Public Trustee for Alberta.

[318] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services; Yukon Health and Social Services, “Supported Decision-Making Agreements: Could this Help Me?” online: http://www.hss.gov.yk.ca/pdf/supported_dm_booklet.pdf (last accessed: November 26, 2013).

[319] Nina A. Kohn et al, “Supported Decision-Making: A Viable Alternative to Guardianship” (2012-2013) 117 Penn St. L. Rev. 1111, 1137, writing on a range of supported decision-making appointments.

[320] Carney & Beaupert, note 304, 195.

[321] Kohn et al, note 319, 1137, writing on a range of supported decision-making appointments.

[322] Carney and Beaupert, note 304, 195, comparing informal and “ordered” supported decision-making arrangements.

[323] VLRC, note 124, 8.108-8.109.

[324] United Nations Secretariat for the Convention on the Rights of Persons with Disabilities & Inter-Parliamentarian Union, From Exclusion to Equality Realizing the Rights of Persons with Disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Operational Protocol (New York & Geneva: UN Secretariat for the CRPD, 2007), 90-91; Gordon, Assisted (Supported) Decision Making, note 304, 69.

[325] McClean Report, note 281; M. Melinda Munro, “Guardianship of Adults: Good Faith and the Philosophy of Mental Disability in British Columbia” (1997) 14 Canadian Journal of Family Law 217. See also: Glen, note 103, 148; VLRC, note 124, 8.31, distinguishing BC’s approach from supported decision making.

[326] Debates of the House of Assembly (Hansard) New L – 47th General Assembly 1st Session March 8, 2012 Bill 3.

[327]See for instance: Planned Lifetime Advocacy Network, “A Three Year Review of the RDSP: Ensuring the Effectiveness of the Registered Disability Savings Plan” (December 2011).

[328] Adult Protection and Decision-Making Regulation, Y.O.I.C. 2005/78, s.5. Investing funds is limited to investing funds that are protected by the Canada Deposit Insurance Corporation.

[329] Adult Protection and Decision-Making Regulation, note 328.

[330] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services. 

[331] The CEP awarded former students on average $19,412 per person across Canada. Aboriginal Affairs and Northern Development Canada, “Statistics on the Implementation of the Indian Residential Schools Settlement Agreement” online:  http://www.aadnc-aandc.gc.ca/eng/1315320539682/1315320692192 (last accessed: September 15, 2013). 

[332] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services. 

[333] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services; Decision Making, Support and Protection to Adults Act, note 305, Schedule A, ss.6, 15; Enduring Power of Attorney Act, R.S.Y. 2002 c.73, s.4.

[334] The Decision Making, Support and Protection to Adults Act states that they can be used “to enable to agree to allow two or more trusted friends or relatives to make a limited range of daily living decisions…for and on behalf of the adult” where he or she “does not need guardianship” and “is capable of managing most of all of their affairs under some circumstances but has difficulty doing so under other circumstances”. Decision Making, Support and Protection to Adults Act, note 305, Schedule A, ss.14, 15.

[335] Enduring Power of Attorney Act, note 333, s.3.

[336] Yukon Health and Social Services, “Representation Agreements: Do I Need One?” online: www.hss.gov.yk.ca/pdf/rep_agreement_booklet.pdf‎ (last accessed: November 7, 2013), 2.

[337] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services.

[338] Representation Agreement Act, note 297, ss. 9.1, 15.

[339] Representation Agreement Act, note 297, s.7; Representation Agreement Regulation, B.C. Reg 199/2001, s.7.

[340] See also: Nidus, “Representation Agreements and RDSPs” online:  http://www.nidus.ca/?p=4691 (last accessed: September 18, 2013); RDSP Resource Centre, “RDSP Improvements Announced,” online:  http://rdspresource.ca/index.php/2012/04/rdsp-improvements-announced/ (last accessed: September 18, 2013).

[341] Consultation with the Public Guardian and Trustee for British Columbia.

[342] McClean Report, note 281.

[343] British Columbia, Office of the Ombudsperson, No Longer Your Decision: British Columbia’s Process for Appointing the Public Guardian and Trustee to Manage the Financial Affairs of Incapable Adults (Public Report No. 49 to the Legislative Assembly of British Columbia, February 2013).

[344] Representation Agreement Act, note 297, s.9(g). This version of the Representation Agreement Act was amended in 2007. As at September 1, 2011, s.9(g) is no longer available. Robert M. Gordon, The 2008 Annotated British Columbia Representation Agreement Act, Adult Guardianship Act and Related Statutes (Toronto: Thomson Carswell Ltd., 2008) [Gordon, Annotated Representation Agreement Act], 1; Nidus “Representation Agreement Act Amendments” (March 2012), online:  http://www.nidus.ca/PDFs/Nidus_01Sept2011_Amendments_and_RA.pdf  (last accessed: November 20, 2013).

[345] McClean Report, note 281, 44.

[346] Gordon, Annotated Representation Agreement Act, note 344, vii-viii, 1.

[347] Representation Agreement Act, note, 297, s.7.

[348]Consultation with Nidus. See also the voluntary form produced by the British Columbia Ministry of Justice that allows an adult to choose one scope of power or both. British Columbia Ministry of Justice, “Representation Agreement (Section 7)” online: http://www.ag.gov.bc.ca/incapacity-planning/pdf/Representation_Agreement_S7.pdf (last accessed: November 26, 2013).

[349] McClean Report, note 281, 20, 22.

[350] Representation Agreement Act, note 297, s.8(2).

[351] Bach & Kerzner, note 104, 78-79; Munro, note 325, 228-230; Gordon, Annotated Representation Agreement Act, note 344, 7.

[352] Representation Agreement Act, note 297, s.8(2); Mona Paré, “Of Minors and the Mentally Ill: Re-Positioning Perspectives on Consent to Health Care” (2011) 29 Windsor Y.B. Access to Just. 107, 122-123.

[353] Kerzner, note 183, 39; Power et al, note 40, 174-175.

[354] Nidus, “A Study of Personal Planning in British Columbia: Representation Agreements with Standard Powers” (Nidus, 2010). [Nidus, Study of Personal Planning] There are few other sources with empirical evidence about representation agreements. Wendy Harrison conducted a detailed study of RAs that provides a wealth of information on non-standard agreements for personal care and advance health care directives. See Wendy Harrison, Representation Agreements in British Columbia: Who is Using them and Why? Project Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Gerontology (Simon Fraser University, 2008). See also: Kohn et al, note 319.

[355] See: Community Living British Columbia, “Guide to Individualized Funding” online:  http://www.communitylivingbc.ca/individuals-families/support-for-adults/individualized-funding (last accessed: November 20, 2013), 7.

[356] See for instance: Mary B. Hamilton, “Incapacity Planning: The New Law Planning for Personal Care Decisions” Prepared for the Continuing Legal Education Society of British Columbia (June 2011), 3.1.6; Law Society of British Columbia, “The Representation Agreement Act” online:   http://www.lawsociety.bc.ca/page.cfm?cid=1209&t=The-Representation-Agreement-Act (last accessed: September 18, 2013); Browning, note 307, 31.

[357] VLRC, note 124, 8.78-8.81.

[358] Glen, note 103, 148; Kohn et al, note 319, 1122, 1137-1138.

[359] Representation Agreement Act, note 297, s.12; Gordon, Annotated Representation Agreement Act, note 344, 23.

[360] Representation Agreement Act, note 297, s.12.

[361] Nidus called these “Other Family”. They exclude parents, children, siblings and spouses.  Nidus, Study of Personal Planning, note 354, 4.

[362] Nidus, Study of Personal Planning, note 354. 

[363] Browning, note 307, 32; consultation with the Public Guardian and Trustee for British Columbia.

[364] Browning, note 307, 32.

[365] The Adult Guardianship and Co-Decision-Making Act, note 143, s.40.

[366] The Adult Guardianship and Co-Decision-Making Act, note 143; Adult Guardianship and Trusteeship Act, S.A. 2008, c.A4.2, s 13; Alberta Human Services, “Co-Decision Making Brochure” online:  http://humanservices.alberta.ca/documents/opg-guardianship-brochure-opg5610.pdf (last accessed: November 8, 2013).

[367] VLRC, note 124, 9.3.

[368] The Adult Guardianship and Co-Decision-Making Act, note 143, s.42. In Alberta, “[a] co-decision-maker shall not refuse to sign a document…if a reasonable person could have made the decision and the decision is not likely to result in harm to the assisted adult”. Adult Guardianship and Trusteeship Act, note 366, s.18(5).

[369] In Saskatchewan, where a decision made by the adult and the property co-decision maker requires the signing of a document, the document is voidable unless the adult and the property co-decision maker co-sign the document. The Adult Guardianship and Co-Decision-Making Act, note 143, s.41. In Alberta, the Court may specify whether a contract is voidable if it is not in writing and signed by both parties. Adult Guardianship and Trusteeship Act, note 366 s. 17(5).

[370] VLRC, note 124, 9.73,9.76.

[371] Consultation with the Public Trustee for Alberta.

[372] Carney & Beaupert, note 304, 184.

[373] VLRC, note 124, 9.53-9.54.

[374] VLRC, note 124, 9.53-9.54.

[375] VLRC, note 124, 9.53-9.57.

[376]Doug Surtees, “How Goes the Battle? An Exploration of Guardianship Reform” (2012) 50:1 Alta. L. Rev. 115 [Surtees, Guardianship Reform], paras. 20-22, 30.

[377] Surtees, Guardianship Reform, note 376.

[378] Surtees, Guardianship Reform, note 376, para. 30.

[379] Surtees, Guardianship Reform, note 376, para. 31.

[380] Consultation with Brendon Pooran.

[381] Consultation with Saara Chetner and Risa Stone (Counsel for the Office of the Public Guardian and Trustee).

[382] SDA, note 5, s. 69.

[383] Summary disposition applications require the filing of two pieces of evidence containing an opinion that the adult is incapable. At least one of these must contain an opinion that it is necessary for decisions to be made on the adult’s behalf and at least one must be undertaken by a capacity assessor. SDA, note 5, ss.72,77,78.

[384] Law Society of Upper Canada, “How to Have a Guardian of Property Appointed through Court Application”, online: http://www.lsuc.on.ca/For-Lawyers/Manage-Your-Practice/Practice-Area/Trusts-and-Estates-Law/How-to-Have-a-Guardian-of-Property-Appointed-through-Court-Application/ (last accessed: September 25, 2013).

[385] Consultation with Doug Surtees.

[386] Alberta Human Services, “Trusteeship Order”, online:  http://humanservices.alberta.ca/guardianship-trusteeship/agta-trusteeship-order.html (last accessed: September 25, 2013).

[387] Consultation with the Public Trustee for Alberta.

[388] Consultation with Brendon Pooran.

[389] SDA, note 5, s.77(3).

[390] Consultation with the Saara Chetner and Risa Stone (Counsel for the Office of the Public Guardian and Trustee).

[391] QLRC, note 124, 20.8, citing Queensland Law Reform Commission, Assisted and Substituted Decisions: Decision-Making by and for People with a Decision-Making Disability, Report No 49 (1996) Vol. 1, 23–7.

[392] See VLRC, note 124; QLRC, note 124, Vol.3.

[393] As part of an overarching scheme to provide support services under The Vulnerable Persons with a Mental Disability Act, the appointment process includes an initial screening by the Vulnerable Persons Commissioner prior to a hearing. Like the CCB, the hearing panel is constituted of members of the public, including family members and lawyers. The decision to appoint a substitute decision-maker is based on an assessment of capacity and need. However, it can only be made where a person is “incapable of managing his or her property by himself or herself or with the involvement of a support network”. Where it appears that reasonable efforts have not been made to involve a support network prior to the application, the Commissioner must dismiss the application and request that the Executive Director facilitate a support network or individual plan. Otherwise, the application is referred to the hearing panel, which makes a recommendation to the Commissioner, who ultimately determines the appointment of a substitute decision-maker.  The Vulnerable Persons with a Mental Disability Act, note 148, ss.84, 85, 88; Zana Marie Lutfiyya et al, Report on the Examination of the Implementation and Impact of The Vulnerable Persons Living with a Mental Disability Act (VPA) (September, 2007).

[394] VLRC, note 124, ss 8.75,9.52.

[395] Information provided by the Consent and Capacity Board.

[396] Health Care Consent Act, 1996, S.O.1996, Ch.2, Schedule A [HCCA].

[397]Information provided by the Consent and Capacity Board.

[398] Jamie Golombek, “Planning with Registered Disability Savings Plans” (2009) 57:2 Canadian Tax Journal 339, 358.

[399] ITA, note 2, s. 146.4(1).

[400] See for instance: Golombek, note 398; Rachel Blumenfeld & Leela Hemmings, “The New RDSP: A Comparison to Henson Trusts” (2009) 3 The Conference for Advanced Life Underwriting (CALU) Info Exchange 1.

[401] Donovan W.M. Waters et al, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), 3, 9; Simon Gardner, An Introduction to the Law of Trusts (Oxford: Oxford University Press, 2011), 1; Eileen E. Gillese, The Law of Trusts (Concord: Irwin Law, 1997), 5.

[402] Waters, note 401, 3.

[403] Gillese, note 401, 5.

[404] In Ontario, certain duties and entitlements of trustees are prescribed in the Trustee Act and other responsibilities can be set forth in the trust instrument. Trustee Act, R.S.O. 1990, c.T.23, s.35.

[405] SDA, note 5, ss.32, 38.

[406] See SDA, note 5, ss.17, 25(3); Representation Agreement Act, note 297, s.5.

[407] Robert Gordon, “Guardianship of the Person and the Estate” in Ann Soden, ed., Advising the Older Client (Markham: LexisNexis Canada Inc., 2005), 105 [Gordon, Guardianship of the Person and the Estate].

[408] Harry Beatty, “Estate Planning for Beneficiaries with Disabilities in Ontario: Inheritances, Trusts and the Ontario Disability Support Program”, prepared for the Continuing Legal Education Program “A Disability Law Primer” (27 November 2003), 10.

[409] Beatty, note 408; The Allen Consulting Group, note 34.

[410] Note that this is different for a testamentary trust, which reflects the common law test to make a will. Waters, note 401, 119, referring to Royal Trust Co. v. Diamant, [1953] 3 DLR 102 (BCSC), 111.

[411] Ontario (Director of Income Maintenance) v. Henson (1989), 36 ETR 192. Golombek, note 398, 358.

[412] Under ODSP, payments from a Henson trust to or for the benefit of a member of a benefit unit may also be exempt as income, for example, if used for approved disability related items, services, education or training expenses that are not reimbursable or for any purpose up to $6,000 maximum in a 12 month period. ODSP Directives, note 72, 4.7.

[413] Beatty, note 408, 19; Donalee Moulton, “Balancing the Pros and Cons of Henson Trusts” 31:45 The Lawyers Weekly (April 6, 2012).

[414] Waters, note 401, 23.

[415] Trustee Act, note 404; Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 14.05(3)(f).

[416]Trustee Act, note 404, ss. 5, 23.

[417] Succession Law Reform Act, R.S.O. 1990, c.S.26, s.63; Variation of Trusts Act, R.S.O. 1990, c. V.1, s.1.

[418] 42 USC § 1396p(d)(4)(A) (West Supp. 2009); U.S. Social Security Administration, Program Operations Manual System, SI 001120.203 “Exceptions to Counting Trusts Established on or after 1/1/00”; Kristen M. Lewis, “Special Needs Trusts: The Cornerstone of Planning for Beneficiaries with Disabilities”, prepared for the American Bar Association, online: http://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/te_lewis.authcheckdam.pdf (last accessed: November 26, 2013). Laws and regulations governing special needs trusts vary by state and they cannot all be reviewed here. The Allen Consulting Group, note 34, 77.

[419] See for instance: Stewart E. Sterk, “Trust Protectors, Agency Costs, and Fiduciary Duty” (2005-2006) 27 Cardozo L Rev 2761; Donovan W. M. Waters, “The Protector: New Wine in Old Bottles?” in A.J. Oakeley ed, Trends in Contemporary Trust Law  (Oxford: Oxford University Press, 1996); Philip J. Renaud, “Protectors in Domestic Trusts” (2008) 27 Estates, Trusts and Pensions J 241; Rebecca Berg & Scott Solkoff, “The Importance of Trust Protectors for Pooled Special Needs Trusts” (2010) 22:1 Elder Law Report 1; Jay Adkisson, “Trust Protectors: What They are and Why Probably Every Trust Should Have One” Forbes (25 August 2012).

[420] See for instance: National Health Service, “Direct Payments”, online: http://www.nhs.uk/CarersDirect/guide/practicalsupport/Pages/Directpayments.aspx/(last accessed: November 23, 2013); Department of Health (England), Guidance on Direct Payments for Community Care, Services for Carers and Children’s Services (Department for Children, Schools and Families, 2009); Kent County Council, Direct Payments Factsheet #3 (Kent County Council, Adult Social Care, August 2013)[Kent County Council, Direct Payments]; Staffordshire County Council Directorate of Social Care and Health Direct Payments Project Board, Direct Payments in Staffordshire: Setting up a Trust Funds to Manage Your Payments (April, 2007)[Staffordshire County Council, Direct Payments].

[421] Laura Luckhurst, “Can Intensive Support Widen Access to Direct Payments?” in Joanna Bornat & Janet Leece, eds., Developments in Direct Payments (Bristol: The Policy Press, 2006); Melanie Henwood & Bob Hudson, Keeping it Personal: Supporting People with Multiple and Complex Needs A Report to the Commission for Social Care Inspection (London: Commission for Social Care Inspection, January 2009).

[422] National Health Service, Direct Payments, note 420.

[423] Staffordshire County Council, Direct Payments, note 420, 2.

[424] Jo Fitzgerald, Personal Health Budgets and Independent User Trusts: Using Independent User Trusts to Manage Personal Health Budgets (Blackburn, England: Mitchell James Ltd., 2011).

[425] Department of Health (England), note 420.

[426] Department of Health (England), note 420, 12.

[427]Kent County Council, Direct Payments, note 420, 1 [emphasis in the original].

[428] Val Williams, How Can Local Authorities Increase the Take-up of Direct Payment Schemes to Adults with Learning Disabilities? (Devon: Research in Practice for Adults, 2006). See also: Vanessa Davey et al, Direct Payments: A National Survey of Direct Payments Policy and Practice (London: LSE, Personal Social Services Research Unit, May 2007); Luckhurst, note 421.

[429] Luckhurst, note 421, 232.

[430] Luckhurst, note 421, 225, 228.

[431] Consultation with the Ontario Disability Support Program.

[432] ODSPA, note 71, ss. 2,12(1),(2).

[433] ODSPA, note 71. O.Reg. 222/98, note 47; ODSP Directives, note 72, 10.2.

[434] Consultation with the Ontario Disability Support Program; ODSP Directives, note 72, 10.2.

[435] Consultation with the Ontario Disability Support Program.

[436] ODSP Directives, note 72, 10.2.

[437] Harry Beatty, “Ontario Disability Support Program” (1999) 14 J.L. & Soc. Pol’y 1, 49; Standing Committee on Social Development, September 29, 1997, Bill 142, online: Legislative Assembly of Ontario http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&BillID=&ParlCommID=54&Date=1997-09-29&Business=Bill+142%2C+Social+Assistance+Reform+Act%2C+1997&DocumentID=19039 (last accessed: November 23, 2013); Standing Committee on Social Development, October 20, 1997, Bill 142, online: http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&Date=1997-10-20&ParlCommID=54&BillID=&Business=Bill+142%2C+Social+Assistance+Reform+Act%2C+1997&DocumentID=19025 (last accessed: November 23, 2013).

[438] Ontario Works Program Policy Directives, online: Ministry of Community and Social Services, online:  http://www.mcss.gov.on.ca/en/mcss/programs/social/directives/directives/owdirectives/3_6_OW_Directives.aspx (last accessed: November 23, 2013), 3.6.

[439] In Alberta, under the Assured Income for the Severely Handicapped (AISH) program a so-called “financial administrator” may also be appointed when clients lack mental capacity or they have a pattern of using their benefits in a way that puts their health at risk. Alberta Human Services, “Assured Income for the Several Handicapped (AISH) Online Policy Manual”, online: http://seniors.alberta.ca/AISH/PolicyManual/AISH_Online_Policy_Manual.htm (last accessed: November 23, 2013)

[440] Consultation with the Ontario Disability Support Program. 

[441] Consultation with the Ontario Disability Support Program; ODSP Directives, note 72, 10.2.

[442] Service Canada, “Canada Pension Plan”, online:  http://www.servicecanada.gc.ca/eng/services/pensions/cpp/index.shtml/ (last accessed: November 23, 2013).

[443] Service Canada, Disability Benefit, online: http://www.servicecanada.gc.ca/eng/services/pensions/cpp/disability/benefit/index.shtml (last accessed: November 23, 2013).

[444] Service Canada, “Old Age Security”, online:  http://www.servicecanada.gc.ca/eng/services/pensions/oas/index.shtml (last accessed: November 23, 2013).

[445] Consultation with the Employment and Social Development Canada (OAS/CPP).

[446] Service Canada, “Consent to Communicate Information to an Authorized Person”, online: http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp1603cpp&ln=eng (last accessed: November 26, 2013).

[447] Canada Pension Plan Regulations, C.R.C. c.385, ss.44. 55.

[448] Old Age Security Regulations, C.R.C. c.1246, s.24. See also: Canada Pension Plan Regulations, C.R.C. c.385, s.55.

[449] Service Canada, “Certificate of Incapacity”, online:  http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp3505cpp&ln=eng (last accessed: November 23, 2013).

[450] Service Canada, “Agreement to Administer Benefits under the Old Age Security Act and/or the Canada Pension Plan by a Private Trustee”, online: http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp3506oas&ln=eng (last accessed: November 26, 2013).

[451] Information provided by the Employment and Social Development Canada (OAS/CPP).

[452] Carney & Beaupert, note 304, 188, speaking of the difference between NDIS and social assistance. 

[453] Although individualized funding exists in Canadian provinces, such as Ontario and British Columbia, NDIS is reviewed here because the process to establish a legal representative for direct payments follows rules that are more detailed. In Ontario, direct funding has not yet been implemented, except under the Passport program, where adults are reimbursed for expenses that have already been incurred. In British Columbia, individualized funding is provided by Community Living British Columbia (CLBC). An “agent” can be appointed in an informal process by CLBC to manage a recipient’s payments in certain circumstances. CLBC, note 355.

[454] Carney & Beaupert, note 304, 189; National Disability Insurance Scheme Act, 2013 (No. 20, 2013) [NDIS Act].

[455] NDIS Act, note 454, Part 5.

[456] NDIS Act, note 454, ss.4(8), 5

[457] National Disability Insurance Scheme (Nominee) Rules, 2013, F2013L01062, 3.6-3.10 [NDIS Nominee Rules].

[458] NDIS Nominee Rules, note 457, 3.14.

[459] NDIS Nominee Rules, note 457, 5.5, 5.10

[460] Australian Law Reform Commission, Family Violence and Commonwealth Laws: Improving Legal Frameworks (ALRC Report 117) [ALRC], Ch. 9. See also VLRC, note 124, 8.95.

[461] ALRC, note 460, Ch. 9. Federation of Community Legal Centres, Response to the National Human Rights Consultation (Victoria, Australia: Federation of Community Legal Centres, 2009); Mike Clare et al, Examination of the Extent of Elder Abuse in Western Australia: A Qualitative and Quantitative Investigation of Existing Agency Policy, Service Responses and Recorded Data (Crawley, WA: The University of Western Australia, 2011).

[462] The Representative Payee Program includes beneficiaries who are minors, “legally incompetent or mentally incapable of managing benefit payments”, and persons who are “physically incapable of managing or directing the management of their benefit payments”. United States Government Accountability Office, Report to Congressional Requesters, SSA Representative Payee Program: Addressing the Long-Term Challenges Requires a More Strategic Approach (Washington: GAO, 2013) [GAO], 1, 3.

[463] Hearing Before the Committee on Ways and Means Subcommittee on Social Security United States House of Representatives, Statement of LaTina Burse Greene (June 5, 2013) [Hearing Before the Committee on Ways and Means Subcommittee on Social Security United States House of Representatives], 10.

[464] GAO, note 462, 1, 8.

[465] Daniel J. Luchins et al, “Representative Payeeship and Mental Illness: A Review” (2003) 30:4 Administration and Policy in Mental Health 341; Daniel J. Luchins et al, “An Agency-Based Representative Payee Program and Improved Community Tenure of Persons with Mental Illness” (1998) 49 Psychiatric Services 1218; Robert Rosenheck et al, “Impact of Representative Payees on Substance Use by Homeless Persons with Serious Mental Illness” 1997 48 Psychiatric Services 800; Elbogen et al, “Characteristics of Representative Payeeship Involving Families of Beneficiaries with Psychiatric Disabilities” (2007) 58: 11 Psychiatric Services 1433.

[466] Elbogen et al, note 465.

[467] Social Security Protection Act of 2004 (Public Law 108-203); Committee on Social Security Representative Payees, National Research Council, Improving the Social Security Representative Payee Program: Serving Beneficiaries and Minimizing Misuse (Washington: The National Academies Press, 2007).

[468] Reid K. Weisbord, “Social Security Representative Payee Misuse” (2013) 117:4 Penn State Law Rev. 1257.

[469] VLRC, note 124, 1.2, speaking of Victorian guardianship legislation.

[470] Consultation with Community Living Ontario.

[471] SDA, note 5, ss.7(6), 17(10), 25 (2).

[472] Writing on substitute decision-makers as “proxies” see Nandini Devi et al, “Moving Towards Substituted or Supported Decision-Making? Article 12 of the Convention on the Rights of Persons with Disabilities” (2011) 5 European Journal of Disability Research 249, 253. See also:  Alberta Law Reform Institute, Advance Directives and Substitute Decision-Making in Personal Healthcare, Report No 64 (March 1993), 1, concerning substitute decision-making in the healthcare context.

[473] Wright, note 123, 350; Robert D. Dinerstein, “Implementing Legal Capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road from Guardianship to Supported Decision-Making” (2012) 19:2 Human Rights Brief 8, 2.

[474] SDA, note 5, s.32.

[475] For definitions of the substituted judgment standard see: Linda S. Whitton and Lawrence A. Frolik, “Surrogate Decision-Making Standards for Guardians: Theory and Reality” (2012) 3 Utah L. Rev. 1491.  See also: Glen, note 103, 116-117.

[476] SDA, note 5, ss. 17, 32, 70.

[477] These roles and responsibilities only apply to attorneys acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property. SDA, note 5, s.38.

[478] SDA, note 5, s.37.

[479] SDA, note 5, ss.37, 38.

[480] SDA, note 5, ss.32, 38.

[481] OPGT, Duties and Powers, note 178, 4.

[482] SDA, note 5, s.32.

[483] SDA, note 5,  s.32.

[484] OPGT, Duties and Powers, note 178, 4.

[485] SDA, note 5, ss.32(7), 32(8).

[486] Gordon cites Ontario as one example of the following statement: “Recent reforms in some jurisdictions have produced provisions that are considerably more refined and reflect modern adult guardianship principles and ideas, particularly the idea that a guardian has a responsibility to involve the capable adult in decision-making to the greatest extent possible”. Gordon, Guardianship of the Person and the Estate, note 407, 101-103.

[487] Nina A. Kohn, “Elder Empowerment as a Strategy for Curbing the Hidden Abuses of Durable Powers of Attorney” (2006) 59:1 Rutgers Law Review 1, 15, describing duties under enduring POAs in the United States.

[488] Kohn, note 487, 15-17, describing duties under enduring POAs in the United States.

[489]Gerald H.L. Fridman, The Law of Agency 5th ed (London: Butterworths, 1983), 138-139.

[490] F.M.B. Reynolds et al, Bowstead and Reynolds on Agency, 18th ed. (London: Sweet & Maxwell, 2006),10-015; McClean Report, note 281; New Zealand Law Commission, Misuse of Enduring Powers of Attorney, Report No 17 (Wellington, New Zealand: April 2001), 2.

[491]McClean Report, note 281, 2; Carolyn L. Dessin, “Acting as Agent under a Financial Durable Power of Attorney: An Unscripted Role” (1996) 75 Neb. L. Rev. 574.

[492] Kohn, note 487, 41.

[493] Kohn, note 487, 42-49.

[494] Kohn, note 487, 49.

[495] Kohn, note 487, 49.

[496] Ann Soden, “Beyond Incapacity”  (2011) 5:2 MJLH 295, 300.

[497] Soden, Beyond Incapacity, note 496, 300.

[498] Soden, Beyond Incapacity, note 496, 300 – 301.

[499] For definitions of the best interests standard see: Whitton & Frolik, note 475. 

[500] HCCA, note 396, s.21; SDA, note 5, s.66.

[501] Bach & Kerzner, note 104, 90.

[502] Representation Agreement Act, note 297, s. 16(2).

[503] Decision Making Support and Protection to Adults Act, note 305, Schedule A, s.23.

[504] For instance, under the British Columbia Representation Agreement Act, the relevant section in full reads:

16 (1) A representative must

(a)  act honestly in good faith,

(b)  exercise the care, diligence and skill of a reasonably prudent person, and

(c)   act within the authority given in the representation agreement.

(2)  When helping the adult to make decisions or when making decisions on behalf of the adult, a representative must

(a)  consult, to the extent reasonable, with the adult to determine his or her current wishes, and

(b)  comply with those wishes if it is reasonable to do so.

(3)  If subsection (2) applies but the adult’s current wishes cannot be determined or it is not reasonable to comply with them, the representative must comply with any instructions or wishes the adult expressed while capable.

(4)  If the adult’s instructions or expressed wishes are not known, the representative must act

(a)  On the basis of the adult’s known beliefs and values, or

(b)  In the adult’s best interests, if he or her beliefs and values are not known.

[505] Bach & Kerzner, note 104, 90.

[506] Bach and Kerzner also accept that a best interests standard can be applied “Where specific decisions are lacking about the transactions required to give the overall intention effect….” They also propose that different supports should be provided by so-called “facilitators” to persons who do not have relationships “where others can reasonably discern their will and/or intention and describe it to others”. Bach and Kerzner’s proposals cannot be reviewed in their entirety in this discussion paper. For more comprehensive information, please consult their paper directly. Bach & Kerzner, note 104, 89, 91-94.

[507] The Adult Guardianship and Co-Decision-Making Act, note 143, s.42. In Alberta, “A co-decision-maker shall not refuse to sign a document…if a reasonable person could have made the decision and the decision is not likely to result in harm to the assisted adult”. Adult Guardianship and Trusteeship Act, note 366, s.18(5).

[508] NDIS Nominee Rules, note 457, 5.5.

[509] NDIS Nominee Rules, note 457, 5.3. See also: VLRC, 399; QLRC, 105-106.

[510] Mental Capacity Act 2005, ch.9, s.1(3).

[511] The Law Commission (United Kingdom), note 41, 4.26.

[512] See for instance: Whitton & Frolik, note 475; Lutfiyya et al, note 393; Margaret Wallace, Evaluation of the Supported Decision Making Project (Office of the Public Advocate for South Australia, November 2012); Harrison, note 354.

[513] Kohn et al, note 319, 1114.

[514] The commissioned research paper, “Understanding the Lived Experience of Assisted and Supported Decision-Making in Canada” will be undertaken by the Canadian Centre for Elder Law. For more information see: http://lco-cdo.org/en/capacity-guardianship-call-for-papers. 

[515] McClean Report, note 281, 87-88.

[516] See for instance: WCLRA, note 138; Trustee Act, note 404, s.35.

[517] SDA, note 5, ss.33, 38.

[518] Although in the Yukon, a third party can make an application to set aside an agreement reached with an adult who did not consult with his or her supporter; Decision Making, Support and Protection to Adults Act, note 305, Schedule A, ss.5, 12; The Adult Guardianship and Co-Decision-Making Act, note 143, s.6.

[519] In Saskatchewan, where a decision made by the adult and the property co-decision maker requires the signing of a document, the document is voidable unless the adult and the property co-decision maker co-sign the document. The Adult Guardianship and Co-Decision-Making Act, note 143, s.41. In Alberta, the Court may specify whether a contract is voidable if it is not in writing and signed by both parties. Adult Guardianship and Trusteeship Act, note 366, s 17(5).

[520] Public Guardian and Trustee of British Columbia, It’s Your Choice: Personal Planning Tools (March 2012), 11.

[521] McClean Report, note 281, 91-92.

[522] If a POA is ineffective because an unauthorized person witnessed its execution, the same protections apply.  SDA, note 5, s.13.

[523] Powers of Attorney Act, 2002, S.S. 2002, c.P-20.3, s.21.

[524] ITA, note 2, s.146.4(4)(a).

[525] Consultation with Finance Canada.

[526] See for instance: Ontario Seniors’ Secretariat, “What Every Older Canadian Should Know about Managing and Protecting their Assets”, online: http://www.seniors.gov.on.ca/en/moneymatters/managing_protecting_assets.php (last accessed: November 7, 2013).

[527] Information provided by CIBC.

[528] Saskatchewan Ministry of Justice and Attorney General, note 162. 

[529] An Act to Amend the Enduring Powers of Attorney Act, note 293, s. 20(2).

[530] Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform, National Disability Insurance Scheme (Plan Management) Rules 2013: Explanatory Statement, online: http://www.comlaw.gov.au/Details/F2013L01064 (last accessed: November 26, 2013), Part 3.

[531] Consultation with Pooran Law. In the case of RESPs, there are few restrictions on who can establish a plan for a beneficiary. Beneficiaries are also generally entitled to receive educational assistance payments directly if they are enrolled in a specified program. Canada Revenue Agency, “Who Can Be a Subscriber?” online: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/resp-reee/sbscrbr-eng.html (last accessed: November 23, 2013); Canada Revenue Agency, “Educational Assistance Payments (EAPs), online: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/resp-reee/pymnts/p-eng.html (last accessed: November 23, 2013).

[532] ITA, s.146.4(1), note 2, “qualifying family member”, “qualifying person”, “disability savings plan”, “holder”.

[533] SDA, note 5, ss.7,17,24.

[534] Section 17 of the SDA permits a trust corporation to apply to replace the OPGT if the incapable person has a spouse or partner who consents. 

[535] Fram Report, note 129, 107, commenting on the statutory appointment process.

[536] Fram Report, note 129, 107, commenting on the statutory appointment process.

[537] SDA, note 5, ss.7,17,24.

[538] Lutfiyya et al, note 393, 25, writing on family members in the context of Manitoba’s legislation. See also: A. Hillman et al, “Experiencing Rights within Positive, Person-Centred Support Networks of People with Intellectual Disability in Australia” (2012) 56 Journal of Intellectual Disability Research 1065.

[539] Family members can often be involved informally in decision-making about income supports and social benefits for persons with disabilities. For instance, under SIPDDA, a member of a person’s family, caregiver or other person can apply on behalf of a person with a developmental disability to receive services and supports. SIPDDA, note 13, s.13.

[540] Consultation with Goddard, Gamage and Stephens LLP; consultation with the Schizophrenia Society of Ontario.

[541] GAO, note 462, 13, citing Hebert et al, “Alzheimer Disease in the US Population, “Archives of Neurology, 60 (August 2003); Agarawal et al, “The Age of Reason: Financial Decisions over the Life Cycle and Implications for Regulation,” Brookings Papers on Economic Activity (Washington, D.C.: 2009).

[542] Fram Report, note 129, 58.

[543] SDA, note 5, s.7(3).

[544] Information provided the Saara Chetner and Risa Stone (Counsel for the Office of the Public Guardian and Trustee).

[545] Consultation with the Ontario Disability Support Program; ODSP Directives, note 72, 10.2; Information provided by Employment and Social Development Canada (CPP/OAS).

[546] Consultation with Professor Doug Surtees; Doug Surtees, “The Evolution of Co-Decision-Making in Saskatchewan” (2010) Sask. L. Rev. 75 [Surtees, Co-Decision Making], 87. The Guardianship and Co-Decision-Making Act provides that corporations or agencies or categories of the same can be designated by the Minister as eligible applicants to be appointed as a co-decision maker or guardian. The Guardianship and Co-Decision-Making Act, note 143, s.30.

[547] Community Living British Columbia, Host Agency Funding Policy, online: http://www.communitylivingbc.ca/wp-content/uploads/Host-Agency-Funding-Policy.pdf (last accessed: November 20, 2013) [CLBC, Host Agency Funding Policy].

[548] Consultation with Tim Stainton; Consultation with Community Living British Columbia.

[549] Hearing Before the Committee on Ways and Means Subcommittee on Social Security United States House of Representatives, note 463, 2; GAO, note 462, 17.

[550] GAO, note 462, 14, 17.

[551] ODSP Directives, note 72, 10.2.

[552] CLBC, Host Agency Funding Policy, note 547; Quality Assurance Measures, O.Reg. 299/10. 

[553] See for instance: CLBC, Standards for Unaccredited Service Providers: A Resource Guide (April 2012), 30.

[554] Social Security Advisory Board “Disability Programs in the 21st Century: The Representative Payee Program” (2010) Social Security Advisory Board Issue Brief Series 2:1, 5; Weisbord, note 468.

[555] In Saskatchewan, The Guardianship and Co-Decision-Making Act provides that corporations or agencies or categories of corporations or agencies can be designated by the Minister as eligible applicants to be appointed as a co-decision maker or guardian. The Guardianship and Co-Decision-Making Act, note 143, s.30.

[556] Publicly available submissions received by the Department of Finance Canada in the context of the Three-Year Review of the RDSP.

[557] The Policy Guidelines for the Adult Protective Service Worker Program 2012 explain that “the role of trustee by the APSW should be temporary while seeking other service alternatives to assume the role of trustee for management of the person’s ODSP income support”. Ministry of Community and Social Services, Policy Guidelines for the Adult Protective Service Worker Program 2012 (October 2012), 9, 10, 20.

[558] Vanguard Project Collaborative, Vulnerable Adults and Capability Issues in BC: Provincial Strategy Document (Vanguard Project Collaborative, January 2009), 23.

[559] Canadian Centre for Elder Law, “Background Paper: Financial Abuse of Seniors: An Overview of Key Legal Issues and Concepts”, prepared for the International Federation on Ageing (March, 2013) [CCEL], 4.

[560] CCEL, note 559, 4.

[561] CCEL, note 559, 4, citing a definition from Finding Home, online: http//findinghome.ca.

[562] VLRC, note 124, 18.80

[563] VLRC, note 124, 18.81

[564] VLRC, note 124, 18.82

[565] CCEL, note 559, 4.

[566] CCEL, note 559, 5.

[567] CCEL, note 559, 5.

[568] National Initiative for the Care of the Elderly, Defining and Measuring Elder Abuse and Neglect: Synthesis of Preparatory Work Required to Measure the Prevalence of Abuse and Neglect of Older Adults in Canada (April 2012), Ch. 5.3.

[569] Alberta Law Reform Institute, Enduring Powers of Attorney: Safeguards Against Abuse, Final Report No.88 (February 2003) [ALRI, Safeguards Against Abuse], writing on enduring POAs.

[570] John B. Bond et al, “The Financial Abuse of Mentally Incompetent Older Adults: A Canadian Study” (1999) 11:4  Journal of Elder Abuse and Neglect, 23.

[571] In British Columbia, a study found that 8 per cent of older adults consulted reported experiences of financial abuse. The most common forms of financial abuse were concerted coercion, harassment and misrepresentation, followed by abuse through a POA. Furthermore, a poll of adults under an order of supervision by the Public Guardian of Trustee for Manitoba reported that financial abuse was suspected among subjects over age 60 at a rate of 21.5 per cent. Charmaine Spencer, Diminishing Returns: An Examination of Financial Abuse of Older Adults in British Columbia (Gerontology Research Centre, Simon Fraser University, 1998), 27. John B. Bond et al, note 570.

[572] ITA, note 2, s.146.4(4)(a)(i).

[573] Minister of Finance’s Expert Panel, note 26, 39.

[574] Minister of Finance’s Expert Panel, note 26, 39.

[575] CRA, RDSP, note 1; Ann Elise Alexander, “Estate Planning Tips for Tax-Free Savings Accounts (TFSA) and Registered Disability Savings Plans (RDSP)”, prepared for the Ontario Bar Association Institute of Continuing Legal Education, Trusts and Estates Section, Grave Consequences: Traps and Pitfalls in Contemporary Estates Law (February 16, 2010).

[576] Golombek, note 398.

[577] Minister of Finance’s Expert Panel, note 26, 40. It should be noted that if an RDSP is not primarily government assisted, and it allows DAPs, RDSP funds could still be depleted before death.

[578] ITA, note 2, ss.146.4(1), 146.4(13)(e); Alexander, note 575, 15.

[579] ITA, note 2, ss. 146.4(13)(c); 146.4(11)(a);146.4(11)(b).

[580] ITA, note 2, s.146.4(4)(a)(i).

[581] ITA, note 2, s. 146.4(1) “disability assistance payment”.

[582] ITA, note 2, s.146.4(1) “disability savings plan”.

[583] ITA, note 2, s.146.4(1.7).

[584] Consultation with the Canada Revenue Agency.

[585] Criminal Code, R.S.C. 1985, c.C-46.

[586] CCEL, note 559, 6; Criminal Code, note 585, ss. 331, 332, 336, 346, 380.

[587] Criminal Code, note 585, s.718.2

[588] Margaret Hall, Developing an Anti-Ageist Approach Within Law (Toronto: Law Commission of Ontario, July 2009).

[589] Selina Lai, Final Report: Community Mobilization Empowering Seniors Against Victimization to the National Crime Prevention Centre of Canada Public Safety Canada (United Seniors of Ontario, March 2008); Donald Poirier & Norma Poirier, Why is it So Difficult to Combat Elder Abuse, and in Particular, Financial Exploitation of the Elderly? (Ottawa: Law Commission of Canada, July 1999).

[590] Statistics Canada, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems (Ottawa: Canadian Centre for Justice Statistics, Statistics Canada, 2009), 11.

[591] Ontario Seniors’ Secretariat, online: http://www.seniors.gov.on.ca/en/elderabuse/strategy.php.

[592] Long-Term Care Homes Act, 2007, S.O. 2007, c.8, ss. 19- 28.

[593] CCEL, note 559, 10.

[594] Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5 [PIPEDA].

[595] CCEL, note 559, 10-12; Credit Unions and Caisses Populaires Act, 1994, S.O. 1994, c 11, s.143(3)(g).

[596] CCEL, note 559, 10.

[597] CCEL, note 559, 10; PIPEDA, note 594, s.7(3)(d).

[598] CCEL, note 559, 10.

[599] PIPEDA, note 594, ss. 7(3)(i),7(3)(e). Amendments to PIPEDA to create new exceptions to disclose confidential information currently before the Parliament of Canada are not considered here. See Parliament of Canada, “Legislative Summary of Bill C-12: An Act to Amend the Personal Information Protection and Electronic Documents Act”, online: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c12&Parl=41&Ses=1#a5 (last accessed: November 26, 2013).

[600] Credit Unions and Caisses Populaires Act, 1994, note 595, s.143(3)(g).

[601] SDA, note 5, s.83.

[602] Royal Bank of Canada “Power of Attorney & Financial Abuse”, online: http://www.onpea.org/regionalconferences/presentations/west/download.php?name=RBC_Elder_Abuse_Presentation.pdf.

[603] See for instance: OBSI, “Case Studies: Financial Transaction – Financial Abuse”, online:  http://www.obsi.ca/en/?option=com_content&view=article&id=128&Itemid=56&lang=en (last accessed: November 26, 2013); OBSI, “Case Studies: Power of Attorney -Multiple POAs”, online:  http://www.obsi.ca/en/?option=com_content&view=article&id=302&Itemid=56&lang=en (last accessed: November 26, 2013).

[604] See for instance: OBSI, “Case Studies: Power of Attorney – Elder Abuse”, online: http://www.obsi.ca/en/?option=com_content&view=article&id=119&Itemid=56&lang=en (last accessed: November 26, 2013).

[605] SDA, note 5, ss.17(5), 24(5).

[606] SDA, note 5, ss.17(10), 25(2).

[607] SDA, note 5, ss.10(1), 10(2).

[608] SDA, note 5, ss.7(6), 7(7).

[609] SDA, note 5, s.24.

[610] SDA, note 5, s.17(1).

[611] SDA, note 5, ss.7(4), 17(11), 24(6).

[612] Ministry of the Attorney General, Powers of Attorney, note 160, Part 2.

[613]Ministry of the Attorney General, Powers of Attorney, note 160, Part 3. See also, SDA, note 5, ss. 11, 12.

[614] SDA, note 5, ss.7(4), 7(5), 12.

[615] SDA, note 5, ss. 32,33, 38.

[616] Ministry of the Attorney General, “Brochures and Forms”, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/brochures_and_forms.asp (last accessed: November 26, 2013).

[617] SDA, note 5, s.39.

[618] SDA, note 5, s.88.

[619] Accounts and Records of Attorneys and Guardians, O. Reg. 100/96.

[620] Fram Report, note 129, 230; SDA, note 5, s.42.

[621] SDA, note 5, s.42.

[622] SDA, note 5, s.42.

[623] See for instance: SDA, note 5, ss.12, 20.3, 26, 27, 28, 29.

[624] SDA, note 5, s.20.3.

[625] SDA, note 5, s.27.

[626] SDA, note 5, s.27(1).

[627] SDA, note 5, ss.27(3.1), 27(8).

[628] SDA, note 5, s.83.

[629] Register, O.Reg. 99/96.

[630] Information provided by Saara Chetner (Counsel for the Office of the Public Guardian and Trustee).

[631] This commissioned research will be undertaken by ARCH Disability Law Centre. For more information see http://lco-cdo.org/en/capacity-guardianship-call-for-papers.

[632] See for example: Legislative Assembly of Ontario, “Bill 9, Protection of Vulnerable and Elderly People from Abuse Act”, online: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=2722&detailPage=bills_detail_status (last accessed:  November 26, 2013).

[633] McClean Report, note 281, 18.

[634] McClean Report, note 281, 10, 12, 13.

[635] McClean Report, note 281, 14.

[636] Ministry of the Attorney General, Powers of Attorney, note 160.

[637] General, O.Reg. 26/95.

[638]Powers of Attorney Regulations, N.W.T. Reg. 027-2002, Form 2; Enduring Power of Attorney Act, R.S.Y. 2002, c.73, Schedule.

[639] For instance, in its review of guardianship, the Queensland Law Reform Commission recommended that mandatory forms already in use be re-drafted to separate information between forms and an expanded stand-alone booklet. QLRC, note 124, Vol. 3, 165-167.

[640] Alberta Law Reform Institute, Enduring Powers of Attorney: Report for Discussion No. 7 (Edmonton: Alberta Law Reform Institute, 1990), 48.

[641] Enduring Power of Attorney Act, note 638, s.3(1)(c); Power of Attorney Act, R.S.B.C. 1996, c.370, s. 17.

[642] The Powers of Attorney Regulations, R.R.S. P-20.3, Reg.1, Form B; Powers of Attorney Regulations, note 638, Form 2.

[643] SDA, note 5, ss.32,38.

[644] QLRC, note 124, Vol. 3; Powers of Attorney Act 1998 (Queensland), s. 73.

[645] WCLRA, note 138, 35,37.

[646] QLRC, note 124, Vol. 3; VLRC, note 124.

[647] CLBC, note 355, 7.

[648] Kohn, note 487, 49.

[649] Kohn, note 487, 49.

[650] The Powers of Attorney Act, C.C.S.M. c.P97, s. 22. Powers of Attorney Act, 2002, S.S. 2002, c. P20.3, s 18; Powers of Attorney Act, S.N.W.T. 2001, c. 15, s. 23; Powers of Attorney Act, S.Nu. 2005, c. 9 s. 25(1).

[651]ALRI, Safeguards Against Abuse, note 569, 10-12.

[652] New Zealand Law Commission, note 490, 15; QLRC, note 124, Vol. 3, 191.

[653] Representation Agreement Act, note 297, ss.12. 20.

[654] Consultation with Nidus.

[655] QLRC, note 124, Vol. 3, 218-219.

[656] See for instance: ODSP Directives, note 72, 10.2.

[657] Act to Amend the Enduring Powers of Attorney Act, note 293, s.20.

[658] Weisbord, note 468.

[659] GAO, note 462, 10.

[660] Social Security Advisory Board, note 554, 4.

[661] Weisbord, note 468, 1284.

[662] GAO, note 462, 20.

[663]Manitoba Law Reform Commission, Enduring and Springing Powers of Attorney, Report No. 83 (March 1994), 19.

[664] SDA, note 5, ss.17(10), 25(2).

[665] Consultation with Seniors’ Services and Adult Protection Unit, Yukon Health and Social Services. 

[666] Yukon Health and Social Service, note 336, 2.

[667] Government of Canada, Economic Action Plan, note 6, 182.

[668] The VLRC has recommended that co-decision making and supported decision-making arrangements be made available through an external appointment process. VLRC, note 124.

[669] VLRC, note 124, 9.53-9.54.

[670] Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (Toronto: February 2013), 9.

[671] SDA, note 5, s.85.

 

 

Previous
 First Page
Table of Contents