III. Ontario’s Current Framework to Estabish a Legal Representative for RDSP Beneficiaries

////III. Ontario’s Current Framework to Estabish a Legal Representative for RDSP Beneficiaries
III. Ontario’s Current Framework to Estabish a Legal Representative for RDSP Beneficiaries2017-03-03T18:30:49+00:00

A.      Introduction

Ontario does not have a process to establish a legal representative specifically for RDSP beneficiaries. The Substitute Decisions Act, 1992 governs the establishment of general substitute decision-makers for property management, including through the execution of a POA or the appointment of a guardian. The SDA was enacted in 1992 following a robust law reform process involving commissioned expert reports and extensive consultations with stakeholders, who played a substantial role in framing much of the legislation that was eventually adopted.[155] It incorporates a sophisticated cognitive approach with standards that are tailored to personal and external appointments, and that are divided between property management and personal care. A person is entitled to rely on the presumption that an adult is capable unless he or she “has reasonable grounds to believe that the other person is incapable of entering into the contract…”[156] The threshold for capacity to give a POA for personal care is at the low end and that for the incapacity to manage property is at the high end.[157] This demonstrates a flexible understanding of capacity as specific to the decision being made. 

We limit our discussion in this section to a summary of the SDA provisions that could be used to establish a legal representative for RDSP beneficiaries, although they are intended for broader application.[158] The LCO will also review stakeholder reports that accessing the RDSP through these avenues has had negative repercussions for RDSP beneficiaries as well as their goals for reform. Further details on how Ontario’s current framework addresses key issues raised by stakeholders are provided under corresponding sections in Chapter V, for instance the eligibility of legal representatives and safeguards against abuse. 

 

B.    Property Management under the Substitute Decisions Act, 1992

1.     The Personal Appointment Process: Continuing Powers of Attorney 

An adult can execute a POA to authorize a person to “do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will”.[159] Authority over property management under the SDA includes “any type of financial decision or transaction that a person would make in the course of managing his or her income, spending, assets, and debts. For example, it could include budgeting expenses and paying bills, doing tax returns, safeguarding valuables, selling real estate, or making loans”.[160] Opening an RDSP, deciding plan terms and managing funds once they have been paid to an RDSP beneficiary clearly fall within this broad scope of authority. An adult can, however, limit an attorney’s authority by setting out specific areas for substitute decision-making, instructions, conditions and restrictions.[161] As will be seen in Chapter V, at least one Canadian province has recommended the use of a “special limited” POA for RDSP beneficiaries wishing to designate a plan holder.[162] 

A POA takes effect immediately or upon the occurrence of a specified event and, if it is a continuing or enduring POA, it will continue to be effective during the adult’s incapacity to manage property.[163] Indeed, the event that triggers a so-called springing POA could be a finding of incapacity that is determined according to a method provided for in the POA. The default method to determine incapacity for the commencement of a springing POA is a capacity assessment, described in Section 3 below. This is a flexible requirement: if the adult specifies that another person assess his or her incapacity, “such as a family member or friend, that other method of assessment would need to be followed”.[164]

The threshold for capacity to execute a POA for property is low relative to the test for incapacity to manage property, and “a continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property”.[165] However, the definition of capacity to give a POA in Ontario is more rigorous than in many other Canadian provinces, being premised on a highly detailed cognitive approach.[166] It requires that an adult,

a)        knows what kind of property he or she has and its approximate value;

b)        is aware of obligations owed to his or her dependents;

c)        knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

d)        knows that the attorney must account for his or her dealings with the person’s property;

e)        knows that he or she may, if capable, revoke the continuing power of attorney;

f)         appreciates that unless the attorney manages the property prudently its value may decline; and

g)        appreciates the possibility that the attorney could misuse the authority given to him or her.[167]

The threshold for capacity to give a POA for personal care does not apply to RDSP decision-making. However, the threshold for capacity to give a POA for personal care is illustrative of the relative stringency of the threshold for property management. It only requires an adult,

a)        has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

b)        appreciates that the person may need to have the proposed attorney make decisions for the person.[168]

An adult can appoint one or more persons as attorneys. If more than one person is appointed, the attorneys must make decisions jointly unless the POA says that their responsibilities should be separated. Giving attorneys the opportunity to make decisions separately guards against interruptions in representation that can be expected from temporary absences, such as sickness or vacations, or for unexpected reasons.[169] A substitute attorney can also be named to avoid an adult being “left with no one to manage [his or her] financial affairs”[170] if the primary attorneys are unavailable. Having multiple attorneys, or a substitute, can also safeguard against the POA being automatically terminated where an attorney dies, becomes incapable of managing property or resigns.[171] Moreover, adults can execute multiple POAs to cover different areas of decision-making or to come into effect upon the termination of another POA.[172]

If a POA is not a continuing POA, it is terminated when the adult becomes incapable. A continuing POA is terminated in various situations, as where there are no longer attorneys under the POA who are available and willing to act, a capable adult revokes the POA or the court appoints a guardian of property through the avenues described below.[173] 

 

2.     Court Ordered Guardianship

Guardianship is an avenue of last resort that is generally reserved for circumstances where adults’ informal supports cannot meet their needs for assistance and they do not have, or are not capable of granting, a POA. Any person can apply to the Superior Court of Justice to appoint one or more guardians for an adult who a judge finds incapable of managing property. The judge can dispose of the application with a hearing or through summary disposition. An application for summary disposition must be accompanied by documents including an assessment that the adult is incapable of property management.[174] The summary disposition of guardianship applications is considered more comprehensively in Chapter V.B.3 of this discussion paper.

An adult is incapable if she or he is “not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.[175] The test for incapacity, thus, adopts a cognitive approach that includes “factually grasp[ing] and retaining information”, realistically appraising outcomes, and justifying and communicating choices.[176] 

Ontario has limited guardianship to a measure of last resort that can be ordered for an adult only where “it is necessary for decisions to be made on his or her behalf….”[177] One purpose of guardianship is to protect adults who “are unable to look after their own welfare by attending to the basic financial transactions that adults normally carry out for themselves”.[178] Should an “alternative course of action” meet an adult’s decision-making needs in a manner that does not require a finding of incapacity and “is less restrictive of the person’s decision-making rights”, the court is prohibited from appointing a guardian.[179] 

Although the term “alternative course of action” is not defined in the legislation, a review of the case law has shown it to include formal alternatives to guardianship, such as POAs, as well as informal supports, such as care facility services.[180] Courts have found that “mental capacity exists if the [person] is able to carry out her decisions with the help of others”[181] and that,

[The SDA] contemplates that where alternatives to the appointment of a guardian will allow for decisions to be made concerning an individual’s personal care, this is to be preferred to a guardianship order, which requires a finding that the person is incapable of personal care…[A] process short of full or partial guardianship is preferable in many cases, as it best recognizes the autonomy and dignity of the individual and the inclusiveness of the decision-making process.[182] 

This has led some to remark that the SDA “does provide for the consideration of the role of supports” with these specific provisions having been “designed to promote autonomy”.[183] 

The statutory language referring to the “need” for a guardian is likewise undefined in the legislation and is anomalous to the court appointment process. Nevertheless, a capacity assessor may provide a judge with what is commonly called a “needs statement” to inform his or her deliberations.[184]  The Guidelines for Conducting Capacity Assessments (Guidelines) describe what should be taken into account in developing a needs statement, including the “the person’s risk exposure; the likelihood and severity of actual and imminent harm; and the scope of the impact for the person, with and without a guardian”.[185] The Guidelines suggest that the analysis should incorporate recommendations as to how an adult’s supports could be adapted to meet his or her needs, and how the court might ensure those recommendations are implemented before deciding upon guardianship.[186] 

Little is known about what alternative courses of action are acceptable under the SDA and what the court’s authority is to facilitate them. The LCO has commissioned a forthcoming research paper for the Legal Capacity, Decision-Making and Guardianship project that will shed light on what alternative arrangements could fit within the existing legislative framework.[187] Should the Ontario government create a process to establish a legal representative for the RDSP that falls short of guardianship, it would be an alternative course of action that could, presumably, be recognized as such under the SDA. 

For the purposes of this project, however, it is important to note that the procedure that engages the court’s jurisdiction to consider alternative courses of action is an application for guardianship and not for alternative relief.[188] As a result, if a process to establish a legal representative for RDSP beneficiaries were to proceed through the courts as an alternative course of action, clear direction through an amendment to the SDA or a standalone statute could likely be required.  

The SDA guarantees measures of due process, such as notice of an application for guardianship to the adult, his or her attorney, the Office of the Public Guardian and Trustee (OPGT), and the adult’s family.[189] The OPGT may be appointed as a litigation guardian to make decisions on behalf of an adult who lacks capacity to instruct a lawyer or decide significant issues in a lawsuit. The OPGT may also locate a lawyer to act for people who are subject to a proceeding under the SDA.[190] A right to appeal the judge’s finding lies with the Court of Appeal for Ontario or an application can be brought at a later date to the Superior Court of Justice to terminate or vary the guardianship order.[191] 

 

3.     Statutory Guardianship Appointments

Ontario’s statutory guardianship appointment process is a novel decision-making arrangement. According to the Report of the Advisory Committee on Substitute Decision-making for Mentally Incapable Persons (commonly referred to as the “Fram Report”), which recommended it, statutory appointments were intended to “allow families to avoid unnecessary applications to court in situations where there is no doubt about an individual’s incapacity, and the person does not object to having a [guardian]”.[192] A statutory guardian for property is appointed following an assessment of an adult’s capacity. Capacity assessments are voluntary, take place in the community and tend to be less expensive than the court appointment process.

Any person may request that a capacity assessor perform an assessment if he or she has reason to believe that an adult is incapable of property management. Similar to the court appointment process, a capacity assessment can be requested to determine whether the adult should have a guardian. As a result, no assessment can be performed unless the person requesting it states that he or she has made reasonable inquiries and has no knowledge of a valid attorney or a court application.[193] Following a finding of incapacity, the capacity assessor must advise the OPGT, who automatically becomes the adult’s guardian. Certain individuals can then apply to the OPGT to become the adult’s guardian, including a spouse or partner, family member, attorney with limited powers and trust company that has a spouse or partner’s consent. In appointing its replacement, the OPGT must be “satisfied that the applicant is suitable” and that there is a management plan that is “appropriate”.[194]

Unlike others who may have jurisdiction to determine an adult’s capacity, such as a judge, capacity assessors for statutory guardianship are certified professionals who must adhere to the Guidelines. They must also undergo periodic training and use prescribed forms.[195] The Guidelines recognize that capacity is contextual and that relational decision-making, including services and supports, should be taken into account by capacity assessors in weighing the risks arising from an adult’s decision-making. They state,

Ideally, vulnerable individuals will have access to a multiplicity of services and social supports, which optimize functioning and assist with decision-making. Guardianship, as a legal option, should only be used as a last resort when existing supports become inadequate or a legally authorized intervention would bring substantial benefits to the incapable person.[196]

The Guidelines accentuate that “[t]he goal of a well-crafted capacity assessment is to elucidate the degree of ‘person-environment fit’”, which includes whether a person’s decision-making capacity “matches the demands of the specific situation with which they are faced” giving full consideration to “whether the person…has considered the merits of obtaining appropriate assistance to meet his or her decision-making needs”.[197]  

Capacity assessments can be “an intrusive and demeaning process”.[198] Ontario guarantees certain measures of due process to guard an adult’s rights against this intrusion into their privacy. A capacity assessor must provide basic information to the adult about the purpose and effect of the assessment and the adult is entitled to refuse the assessment.[199] An appeal of a finding of incapacity can be brought to a specialized independent tribunal called the Consent and Capacity Board (CCB) or the finding can be reversed upon a reassessment that the adult can request.[200] Statutory guardianship can also be terminated upon proof that the adult gave a continuing POA for all property matters before the certificate of incapacity was issued and the attorney is willing to act, or the court appoints a guardian.[201]

 

C.    Challenges Posed by Ontario’s Current Framework

1.     Challenges for Beneficiaries and their Families 

When the federal government asked the public for feedback during its review of the RDSP, it received hundreds of submissions, which have provided an information base for the LCO’s project.[202] Many identified common challenges for beneficiaries and their families in accessing the RDSP through existing provincial and territorial frameworks across Canada. The LCO heard from advocacy organizations, families, financial institutions and government representatives who confirmed these and other challenges in the context of Ontario’s decision-making laws. The challenges posed by Ontario’s current framework are discussed in turn below, including, 

  • level of capacity required to execute a POA
  • potential impacts of substitute decision-making on an adult’s well-being
  • complexity and costs of statutory and court appointment processes, and
  • lack of available substitute decision-makers

As a private, expedient and self-determined process, executing a POA would be the first avenue of recourse for potential RDSP beneficiaries wishing to establish a legal representative. However, the intended consumers of the RDSP include adults whose mental disabilities may affect their capacity to execute a POA. The threshold for capacity in Ontario is highly detailed and stringent. Regardless of Ontario’s standards, however, the capacity to execute a POA for financial management ordinarily requires the grantor has the ability to understand and appreciate basic information about the purpose of attorney’s powers. Stakeholders reported that this threshold could be unattainable for the adults most directly affected by the LCO’s project because it is acknowledged that they experience difficulties in navigating the complex rules surrounding the RDSP. As a consequence, they may be unable to personally designate another to act on their behalf. Stakeholders proposed that some adults could be capable of a personal appointment, if Ontario were to adopt a more lenient standard such as that for personal care under the SDA or one that relies on non-cognitive criteria, such as the expression of will and preference or the existence of trusting relationship.[203]

Participants in the LCO’s consultations also vigorously stressed the need to reduce the negative impacts of substitute decision-making on an adult’s well-being. The target users of any options for reform are adults who do not have a substitute decision-maker. Advocacy organizations reported that many of these adults never have had a need for such a formal arrangement before attempting to access the RDSP. Some adults manage their finances with a degree of self-sufficiency, such as everyday banking, while others benefit more from supports at home or in networks of community service providers. For these adults, the plenary deprivation of authority that tends to follow a guardianship appointment is stigmatizing and disproportionate to the need for assistance.[204] They say that an alternative process should be framed carefully so as not to spill over into other areas of decision-making; it should be specific to the RDSP.[205]

However, RDSP funds are an asset, like any other asset. The LCO heard that where an adult faces challenges not only in opening an RDSP and deciding plan terms but also managing funds that have been paid out of the RDSP, it could indicate a need for assistance with general financial management.[206] One key issue in the LCO’s project is to consider whether a legal representative’s scope of authority should extend beyond that of a plan holder to also include managing payments made out of the RDSP. Although the federal RDSP Review focused on opening RDSPs, ESDC reports that payments have already been made, totaling approximately $6.5 million across Canada.[207] As beneficiaries age to become recipients of LDAPs, managing funds that have been paid out of the RDSP will become increasingly important.

Many stakeholders asserted that a future process should be comprehensive. If an RDSP is opened by a legal representative who cannot assist with managing funds that have been paid out of the RDSP, beneficiaries with impaired capacity may be required to receive additional representation from a guardian through the very same process that they have declined to follow to date. This could result in a piecemeal solution that does not meet the adult’s needs and increased vulnerability to financial abuse, should a guardian not be appointed. Joanne Taylor, Executive Director of Nidus Personal Planning Resource Centre and Registry comments,  

I do not think it would be ‘safe’ to only provide a mechanism for authority to act as a plan holder of an RDSP. Building up funds in an RDSP could in fact increase an adult’s vulnerability unless there is a mechanism to ensure support for all life areas (health care, personal care, financial, legal) as these areas overlap and intertwine in real life. Compartmentalizing one aspect of financial benefit doesn’t address the needs of a whole person.[208] 

Be that as it may, extending the reach of a legal representative’s authority beyond that of a plan holder could have other repercussions. It could lead to fragmentation across sectors, depending on a beneficiary’s assets. For instance, an older adult could require assistance for OAS payments in addition to the RDSP. More importantly, it would intrude upon an adult’s self-determination in choosing how to spend RDSP funds contrary to the policy objectives underlying the RDSP.[209] Furthermore, stakeholders acknowledged that it would necessitate additional safeguards to protect against the potential misuse of a legal representative’s powers. Incidents of abuse and other forms of financial mismanagement by attorneys and guardians of persons with diminished capacity were confirmed during the LCO’s consultation process. The Advocacy Centre for the Elderly (ACE), OPGT and Ombudsman for Banking Services and Investments (OBSI) regularly receive complaints about guardians and attorneys misusing an adult’s funds to detrimental effect or disputing expenditures. In the case of the RDSP, the province is interested in a simplified procedure; however, it is also concerned about the potential for financial abuse under such a scheme. The LCO heard that safeguards should address both intentional abuse and the resolution of differences in opinion about expenditures.[210] Interviewees also noted that while safeguards are important, they should not outweigh a beneficiary’s need for assistance or undermine procedural accessibility.[211] 

Still on the question of an adult’s well-being, advocacy organizations expressed dissatisfaction with existing requirements to engage adults in the activity of decision-making. Ontario has recognized that capacity is specific to decisions as they are made and they say that any options for reform must respond to the lived-experience of beneficiaries whose abilities vary by issue area and fluctuate over time. Participants in the LCO’s consultations emphasized that this is particularly important for beneficiaries as they become recipients of LDAPS at age 60, and for those with degenerative conditions and psychosocial disabilities.[212] Although the SDA requires that a guardian encourage an adult’s participation, a finding of incapacity does not formally accommodate changes in his or her abilities because the seat of legal authority rests with a guardian, who is not bound to follow instructions, however reasonable. Associations for Community Living claim that shifting the law’s focus from incapacity to need and supports better reflects how decision-making takes place – as a personal, social and dynamic activity – and it would maximize capacity, promote full citizenship, participation and inclusion for persons with mental disabilities.[213] They suggested the LCO look for guidance in this respect to the CRPD, which is reviewed in Chapter IV below. 

The results of a community consultation held by the Peterborough Poverty Reduction Network Income Security Working Group (Ontario) illustrate some of the above challenges:Participants thought that requiring a person who cannot enter into a contract to be declared legally incompetent so that a legal guardian can open an RDSP for them strips people of dignity and autonomy. Some people haven’t opened an RDSP because they do not want to be declared legally incompetent or their families do not want to do this to their loved one. Several participants recommended using a power of attorney to cover situations where a beneficiary’s disabilities prevent them from entering into a contract. Others found the power of attorney process bizarre or were concerned that it could be abused.

The first fundamental principle of any solution for legal representation is that people with disabilities should have the right to make decisions about the RDSP to the extent that they are able. Peoples’ abilities need to be recognized and facilitated in any solution. The second principle identified by participants is a solution that offers flexibility because every family is different, and every situation and disability is unique.[214]

There are other very practical challenges for beneficiaries and their families. The review of Ontario’s current framework in the preceding section reveals how complex it can be to establish a substitute decision-maker. The statutory appointment process was intended to be more affordable and accessible than the courts. Capacity assessors charge hourly rates for their services. These generally range between $70 and $160 per hour; however, some assessors charge higher rates and the total fees “may range anywhere from $300 to fairly substantial sums….”[215] The requesting person is responsible for paying these fees, but where a guardian is appointed for the adult, payment can be drawn from the adult’s estate. There is also a Financial Assistance Program that will cover these costs based on financial and other criteria.[216] Fees to replace the OPGT as the statutory guardian for property are set at $382 plus HST in the amount of $49.66. Typically this is payable by the adult; however, financial hardship may result in a waiver of these fees in individual cases. Many statutory appointments can be straightforward. However, where there are complicating factors, such as family disputes or difficulties preparing an application to replace the OPGT, statutory appointments have the potential to become lengthy or, ultimately, finish before a judge.[217] 

Court proceedings in the Superior Court of Justice can be a complex process for unrepresented litigants and are expensive for those with a lawyer. The LCO heard that lawyers’ fees in guardianship applications can range from $9,000 to $10,000 for uncontested appointments, $12, 000 to $20,000 for uncontested appointments with complicating factors (such as language barriers), and $20,000 and up for contested appointments, in urban centres, such as Toronto.[218]  These costs could be prohibitive for adults and their families, who may be seeking an RDSP because they have diminished financial resources. Moreover, the many incremental stages involved in establishing a guardian in Ontario inside or outside of the courts could contribute to a sense of initiative fatigue, since the application process for the RDSP is itself labour intensive. 

The final challenge for RDSP beneficiaries that was identified was the lack of eligible persons who could act as legal representatives. Ontario’s statutory guardianship process strictly limits the persons who can replace the OPGT to family members, attorneys, spouses and trust companies with a spouse’s consent.  A judge has authority to appoint a guardian from beyond these classes but common to both processes is the requirement that a substitute be a natural person, except where it is the OPGT or a trust company.[219] However, the RDSP is available to a range of persons with mental disabilities, some of whom may be socially isolated and rely on a network of service providers for supports. Participants in the LCO’s consultations identified older adults, immigrants and persons with psychosocial disabilities as individuals with disproportionately low access to close family and friends, who may be in need of a wider range of legal representatives.[220] Interviewees expressed that persons who experience social isolation should not be further marginalized by the unavailability of legal representatives.  Some urged the LCO to consider whether eligibility could be extended to involve institutions, such as advocacy or community organizations, where an adult does not wish to rely on the OPGT but does not have contact with a trusted person.[221] Appropriate protection from liability based on a standard of care would be an important prerequisite for all legal representatives.

 

2.     Challenges for Other Interested Parties

The federal RDSP Review consultation paper recommended that provincial and territorial proposals for an alternative process to appoint a legal representative “would require careful consideration of costs, administrative feasibility, liability issues, oversight, and accountability”.[222] The challenges that the LCO learned about in its own consultations substantiate that these are important issues in Ontario for third parties who facilitate participation in the RDSP, including financial institutions and the Ontario government. 

As noted previously, financial institutions offer the RDSP voluntarily, even though it is a complex product.[223] Financial institutions offer the RDSP because it improves their brand reputation but also because non-eligible clients as well as their own employees are the families and friends of persons with disabilities.[224] The time and efforts that financial institutions contribute to delivering the RDSP should be met with solutions to address the challenges that they face. In terms of the LCO’s project, this means that financial institutions must feel secure with an alternative process to establish a legal representative.[225] 

Feeling secure for financial institutions includes the certainty that they can rely on a new process as one that is valid under the law, that a legal representative is authorized to act with respect to the RDSP (as a specific area of financial management), and that they will not be held liable for the legal representative’s decisions in the event of loss or dispute.[226] The LCO heard that this might be achieved, in part, by designating the legal representative as the focal point with clear authority to enter into transactions with third parties.[227]  This could reassure financial institutions that they could rely on a decision as long as it is communicated by the legal representative. It could also shield them from liability in disagreements between the legal representative and RDSP beneficiary, for instance about the amount of a withdrawal.

Because financial institutions do not have the means to trace how funds are used once they are paid out of the RDSP – and do not feel that they have an obligation to do so – they would also hope to see the scope of a legal representative’s powers include acknowledging that funds have been received by the beneficiary. This would allow them to ensure compliance with the plan conditions, for which they are responsible under the ITA.[228] In the event that they become aware of or suspect abuse, financial institutions have an interest in knowing their rights and responsibilities to disclose confidential information about the beneficiary’s RDSP under provincial rules and federal privacy legislation.

Financial institutions also share the interest of the Ontario government in creating a process that respects operational and resource constraints. Participants in the LCO’s consultations highlighted that the subject matter of this project concerns the creation of a practical mechanism that can be used on the ground in transactions between adults with mental disabilities and their families and friends, financial institutions, the government and community organizations, among others. This means that any law reform measures must be easy for consumers to understand and use, cost-effective and administratively feasible.[229] In particular, resource constraints significantly affect the implementation of existing legislation and will continue to affect the system under any law reform. It is unlikely, in the current economic climate, that the Ontario government will have significant resources available to add to the system. It is, therefore, important that this project adopt a “best value” approach. 

Stakeholders with a history of participation in law reform efforts in this area also emphasized that the LCO should adopt a “post-creation” approach that builds on what has already been done over the years.[230] As noted previously, the SDA was developed through a robust law reform process involving commissioned reports and extensive consultations. Issues of capacity, guardianship and decision-making have also received increasing attention in recent years. Moreover, debates specifically concerning the subject matter of the LCO’s project have been ongoing since the RDSP became available. Stakeholders proposed that in developing creative solutions the LCO could incorporate, and where possible, synthesize insights that were achieved in these initiatives as a foundation for this project.

 

D.   Goals for Reform Identified by Stakeholders

The goals for reform identified by stakeholders respond to the challenges discussed above. The results of the LCO’s preliminary consultations indicate that many stakeholders’ core interests, while different, are not necessarily incompatible. There was a history of cooperation during the federal government RSDP Review and their diverse goals for reform are thought-out and intellectually coherent. The goals for reform identified by stakeholders in our preliminary consultations can be summarized as follows:

  • A lowered threshold for capacity that is suited to adults with mental disabilities wishing to appoint a legal representative for the RDSP
  • A streamlined, external process to appoint a legal representative on an adult’s behalf
  • Limitation of legal representation to RDSP decision-making
  • An implementable framework, whatever it may be, that is easy to understand and use, cost-effective and administratively feasible
  • Delineation of a legal representative’s scope of authority to match an adult’s need for assistance
  • Certainty regarding who is entitled to assist the beneficiary with respect to funds paid out of the RDSP
  • Effective safeguards against financial abuse
  • Reduction of the negative impacts of legal representation on an adult’s well-being
  • Increased eligibility categories for legal representatives
  • Designation of a clear focal point with legal decision-making authority to enter into transactions with third parties
  • Appropriate protection from liability for legal representatives and financial institutions

 

QUESTIONS FOR DISCUSSION

2.     Have you experienced challenges in establishing a legal representative for the RDSP? If so, what were those challenges?

3.     Do adults, families and other interested parties face challenges with respect to establishing a legal representative for RDSP beneficiaries in Ontario that have not been identified in this discussion paper?

4.     What do you believe the goals for reform in this project should be?

 

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