A. INTRODUCTION

At any given time, laws regarding legal capacity, decision-making and guardianship affect tens of thousands of Ontarians. Persons directly affected by these laws may be living in long-term care homes, retirement homes, group homes, hospitals, psychiatric facilities or the community. Those affected may have temporary acute illnesses or chronic conditions. They may be living with addictions, mental health disabilities, acquired brain injuries, dementia, aphasia, developmental or intellectual disabilities, or many other types of disabilities.

These laws also affect tens of thousands of families and caregivers, as well as thousands of professionals, service providers, and institutions, financial institutions, health and social service professionals, hospitals and retirement homes, lawyers, governments, countless community agencies, and many others.

Most Ontarians will, at some point in their personal or professional lives, encounter this area of the law.

This Final Report concludes an extensive, multi-year Law Commission of Ontario (LCO) project reviewing Ontario’s statutory framework for legal capacity, decisionmaking and guardianship. The project has examined issues related to concepts of legal capacity and decision-making, the use and misuse of powers of attorney, and appointment and dispute resolution processes, among other issues. It builds on the principles and considerations identified in the LCO’s two Frameworks for the law as it affects older adults and the law as it affects persons with disabilities,1 as well as taking
into account what was learned from the project on Capacity and Legal Representation for the Federal RDSP.2 The LCO has brought to this project its holistic, multidisciplinary approach to law reform, and its commitment to open and transparent processes and to broad public consultation.

This report is the culmination of the most comprehensive process in the LCO’s history. The project began with wide-ranging scoping interviews in early 2013 and the commissioning of several expert papers. In June 2014, the LCO released a comprehensive Discussion Paper3 and Summary of Consultation Issues.4 The subsequent public consultations allowed us to hear from hundreds of Ontarians, including private individuals, experts and institutional stakeholders. In January 2016, we released for feedback an Interim Report5 with draft recommendations.

Ontario has a comprehensive and relatively coordinated statutory scheme related to legal capacity and decision-making, resulting from a thorough and thoughtful law reform process in the late 1980s and early 1990s.6 The foundations underlying the current law, of maximizing autonomy and reducing intervention, empowering families, and providing a “safety net” against exploitation and abuse of persons with impaired decision-making abilities, remain largely sound. However, much has changed since these laws came into effect, including evolving understandings of legal needs and of the rights of persons with disabilities and older persons, substantial social and demographic changes, and an ever more complex service delivery landscape. The LCO’s work revealed significant challenges in ensuring effective access to the law, providing a wide enough range of options to meet the diverse needs of those directly affected, and providing coordinated approaches across the system.

The LCO’s approach to reform has focussed on promoting the principles underlying the Framework projects, recognizing the diversity of needs and experiences among those directly affected and among stakeholders, acknowledging and responding to complexity, and building on the strengths of Ontario’s existing laws, policies and institutions. The central priorities for reform have been reducing unnecessary and inappropriate intervention in the lives of individuals, improving access to the law, and enhancing the clarity and coordination of the law. These priorities are advanced through 58 recommendations which would, if implemented, widen the range of options available to individuals, promote access to education and information, strengthen safeguards against abuse, enhance procedural protections, and support more meaningful rights enforcement and dispute resolution. The LCO believes that this approach builds on the strengths of the current system while responding to contemporary needs, and provides a strong foundation for the ongoing evolution of this area of the law.

The LCO’s review of Ontario’s statutory regime for legal capacity, decision-making and guardianship has raised many challenging issues for which there are no straightforward solutions. While consultations have indicated broad support for the general thrust of the LCO’s approach, it is inevitable that not all will agree with all recommendations. The LCO believes that these recommendations strike a careful balance between competing needs and perspectives and would significantly enhance the ability of Ontario’s legal framework in this area to maximize self-determination, provide safeguards for those who are vulnerable, and provide effective and meaningful options for the diverse array of individuals and stakeholders who encounter it every day.

B.  SCOPE, NEEDS AND PRIORITIES FOR REFORM

1.  Project Scope

The project addresses the following six issues:

  1. The standard for legal capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the Substitute Decisions Act, 1992 (SDA), Health Care Consent Act, 1996 (HCCA) and Mental Health Act (MHA);
  2. Decisionmaking models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
  3. Processes for appointments (for example, of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
  4. The roles and responsibilities of guardians and other substitute decision- makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
  5. Monitoring, accountability and prevention of abuse for substitute decision- makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
  6. Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms.

The scope of this project was determined through the LCO’s preliminary research and consultations. The focus is on the provisions of the Health Care Consent Act, 1996 (HCCA),7 Substitute Decisions Act, 1992 (SDA)8 and Part III of the Mental Health Act (MHA)9 dealing with examinations of capacity to manage property upon admission to a psychiatric facility. The LCO is not making recommendations about the common law of capacity and consent,10 capacity to consent under privacy law11 or consent to research, or broader aspects of the MHA such as community treatment orders. Nor does the project address issues such as the extra-judicial recognition of powers of attorney, or the ability of an attorney under a power of attorney to make a beneficiary designation.

This is not a reflection on the importance of the issues not addressed: they are of considerable practical significance to many Ontarians. Given the breadth of the issues, the LCO has focused on those with broad general implications for the statutory scheme as a whole, which were also pressingly identified by stakeholders, and which were not being addressed by other bodies.

Importantly, as was briefly noted above, this project grew out of the LCO’s two Framework projects on the law as it affects older persons and the law as it affects persons with disabilities, which were completed in 2012.12 The adoption of the Frameworks as the starting point of this project and as its analytical foundation has substantially shaped the approach to and results of this project. Chapter 3 will discuss the implications of the Frameworks for this project and for this area of the law.

During the timeframe of this project, the LCO also undertook, at the request of the Ontario government, an independent review of how adults with disabilities might be better enabled to participate in the federal Registered Disability Savings Plan (RDSP). The resultant LCO project, Capacity and Legal Representation for the Federal RDSP, recommended the creation of a streamlined Ontario process to appoint a legal representative for adults who are eligible for an RDSP but who are unable to establish a plan due to concerns about their legal capacity.13

2.  Needs and Priorities for Reform

The LCO’s extensive consultations and research identified both strengths and weaknesses within the current legal framework. Notably, the LCO believes that the values and priorities that underlay the law reform efforts of the 1990s remain relevant and that in most respects, the current laws retain broad appeal and support. The LCO has further concluded, however, that there are three broad areas of potential reforms that should be addressed to ensure the system meets the contemporary needs of individuals, families, service providers and institutions in Ontario today.

1.  Reducing unnecessary and inappropriate intervention

Building on the influential recommendations in the 1987 Fram Report,14 the current legislation contains many provisions specifically intended to advance the autonomy and self-determination of those who fall within its scope. These include specific presumptions of capacity, and an emphasis on decision-specific approaches to capacity; the provision of procedural rights to persons affected, such as rights advice and information and the right to refuse an assessment under the SDA; the inclusion of requirements to consider the least restrictive alternative in court-appointed guardianships; and others.

The LCO has concluded that the objectives and general framework of the current legislative framework is sound. Experience has demonstrated, however, that for a variety of reasons, individuals continue to be subject to unnecessary restrictions on their autonomy. Issues include lack of understanding of the law on the part of individuals, families and service providers; inflexibility of guardianship processes; challenges in implementation of existing safeguards against unnecessary intervention; lack of accessible means of asserting rights under the SDA; and an approach to legal capacity and decision-making that is at times overly binary.

The LCO is recommending several initiatives that would reduce unnecessary interventions, including:

  • clarifying the application of the duty to accommodate to legal capacity and decision-making;
  • providing options beyond substitute decision-making in appropriate circumstances;
  • clarifying the duties of substitute decision-makers to consider the values and life goals of those for whom they make decisions, and providing them with better information about their responsibilities;
  • increasing the powers of adjudicators to explore less restrictive alternatives and to tailor guardianship orders to the needs of the affected individuals; and
  • increasing the accessibility and responsiveness of the external appointments pro

2.  Improving access to the law

During the LCO’s public consultations, there was broad concern that many positive aspects of the cu