Project Overview
The Law Commission of Ontario’s Final Report on Legal Capacity, Decision-Making and Guardianship sets out a comprehensive plan to reform Ontario’s laws governing powers of attorney, guardianship, and health care consent.
These laws determine how decisions about property, treatment, and personal care are made when an individual’s decision-making ability is impaired but decisions must still be made. They have a profound impact on people’s lives, shaping both the protection of individual autonomy and the risk of abuse or exploitation for those who may be vulnerable.
The project responds to longstanding public concerns, including misuse of powers of attorney; inappropriate or overly intrusive interventions in the lives of older adults and persons with disabilities; legal disputes that are complex, lengthy, and costly; and widespread lack of understanding of the law among individuals, families, professionals, institutions, and service providers. The LCO also identified a clear need to update Ontario’s legal framework in light of significant demographic, legal, and social changes since these laws were introduced.
This report is the most comprehensive review of Ontario’s legal capacity, decision-making, and guardianship framework in nearly 30 years. Much of the current regime emerged from provincial reform efforts in the late 1980s and early 1990s, and has not kept pace with evolving social realities and expectations.
Advisory Committee
The Advisory Committee members were:
- ARCH Disability Law Centre
- Joanne Bertrand – Ontario Caregiver Coalition
- Alexandra Carling-Rowland – College of Audiologists and Speech-Language Pathologists
- Dr. Carole Cohen – Sunnybrook Health Sciences Centre
- Julia Fisher – Office of the Public Guardian and Trustee of Ontario
- Professor Joan Gilmour – Osgoode Hall Law School
- Jan Goddard – Goddard Gamage Stephens LLP
- David Harvey – Alzheimer Society of Ontario
- D’Arcy Hiltz – Hiltz Szigeti LLP
- The Honourable Madam Justice Susan Himel – Superior Court of Justice of Ontario
- Gordon Kyle and Brendon Pooran – Community Living Ontario
- Anne Bowlby – Ministry of Health and Long-Term Care
- Roslyn Shields – Centre for Addiction and Mental Health
- Laura Metrick – Ministry of the Attorney General
- Lora Patton – Consent and Capacity Board
- Frank Wagner – Ethicist/Joint Centre for Bioethics
- Judith Wahl – Advocacy Centre for the Elderly
- Laura Watts – British Columbia Law Institute
Key Recommendations
The Final Report makes 58 recommendations across six core reform areas.
1. Improve Access to the Law
- Streamline court-based mechanisms under the Substitute Decisions Act and promote greater use of tribunals to reduce cost, complexity, and time to resolution.
2. Promote Understanding of the Law
- Improve understanding among family members, substitute decision-makers, professionals, service providers, and those whose rights are directly affected by a legal finding or proceeding.
3. Strengthen Rights Under the Health Care Consent Act
- Improve the quality of capacity assessments and expand access to rights information for individuals found incapable.
4. Reduce Inappropriate Intervention
- Provide more options for individuals who cannot make decisions independently by creating more flexible and limited forms of substitute decision-making.
5. Increase Accountability and Transparency for Personal Appointments
- Address concerns about abuse, misuse of powers of attorney, and elder abuse through stronger oversight and clearer responsibilities.
6. Enable Greater Choice of Substitute Decision-Makers
- Respond to the needs of individuals who rely on families of choice or who do not have family or close friends able or willing to assume this role by giving them more options.
The report was developed through the LCO’s independent, evidence-based, and transparent law reform process, informed by input from more than 800 individuals and institutions across Ontario.