This Chapter provides a very brief overview of the key elements of Ontario’s systems for legal capacity, decision-making and guardianship. It is not intended as a guide to the system, but rather to orient readers who may not be as familiar with this area of the law to the core elements of Ontario’s approach and how each aspect fits into the entire scheme. This Chapter concludes with a summary analysis of the strengths and weaknesses of this system. Further details of key provisions are set out in the relevant Chapters.
A. INTRODUCTION TO ONTARIO’S LEGAL FRAMEWORK FOR CAPACITY AND DECISION-MAKING LAWS
Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Three separate law reform initiatives undertaken during this time profoundly influenced Ontario’s current laws:
- The Committee on the Enquiry on Mental Competency (1990) (“Weisstub Enquiry”) was given the task of developing a set of recommended standards for determining the mental competence of individuals to make decisions about health care, management of financial affairs and appointment of a substitute decision-maker: the Final Report concluded that the process for testing legal capacity must respect both the principle of autonomy and that of best interests, as well as reflecting the importance of proportionality, administrative simplicity and relevance.
- The Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (1987) (“Fram Committee”) was appointed by the Attorney General to “review all aspects of the law governing, and related to, substitute decision making for mentally incapacitated persons and to recommend revision of this law where appropriate”, and its Final Report (“the Fram Report”) identified as underlying values for this area of the law freedom from unnecessary intervention; self-determination; and community living through access to support. 
- The Review of Advocacy for Vulnerable Adults (1987) (“the O’Sullivan Report”), while ultimately having a more limited legislative impact, identified a number of important goals associated with this area of the law, including, among others, providing safeguards against unnecessary guardianship; promoting independence; encouraging self-advocacy (self-determination) where possible; enhancing the role of family and friends; and educating, delabeling and destigmatizing.
Ontario’s resulting statutory framework for legal capacity, decision-making and guardianship is complex, extensive, intricate and nuanced. At its core are two statutes:
- The Substitute Decisions Act, 1992 (SDA), which addresses decisions related to property management and personal care, and identifies the appointment processes and the duties of guardians and those acting under powers of attorney (POA), and
- The Health Care Consent Act, 1996 (HCCA), which addresses consent to treatment, admission to long-term care homes and personal assistance services for residents of long-term care homes.
In addition, the Mental Health Act (MHA) addresses examinations of capacity to manage property upon admission to or discharge from a psychiatric facility. There are other laws related to legal capacity which are not addressed in this project, including those related to access to personal health information and the common law. Although the project focuses on this particular area of the law, of course laws related to legal capacity and decision-making must be understood within the broader context of laws related to health services, long-term and community care, elder abuse, income support programs and others.
It is important to keep in mind that these laws are administered through a complex array of public and private institutions, all across the province.
For example, there are at least seven provincial ministries or institutions involved in delivering this legislation, including the Ministry of the Attorney General, the Ministry of Health and Long-Term Care, the Ontario Seniors Secretariat, the Ministry of Community and Social Services, the Public Guardian and Trustee (PGT), the Consent and Capacity Board (CCB) and the Superior Court of Justice.
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. The complexity of implementation adds immensely to the complexity of the laws themselves.
The complexity of this legal framework and its administration has important implications for this project.
B. KEY ASSUMPTIONS AND POLICY CHOICES
Ontario’s legal framework for legal capacity, decision-making and guardianship is premised on several key policy choices. These choices underpin the legislative regime and many of the policies and practices within it.
First, Ontario’s approach to legal capacity is functional and cognitive. This approach emphasizes the ability to make a specific decision or type of decision, evaluating the ability of the individual to understand, retain and evaluate information relevant to a decision. The focus is on the functional requirements of a particular decision, not a medical diagnosis, the probable outcome of the person’s decisions, or an abstract assessment of abilities. Tests for legal capacity are based on the ability to understand and appreciate the information relevant to a particular decision or type of decision, and the consequences of making that decision (or of not making a decision).
Determinations of legal capacity are domain or decision-specific, recognizing that a person can have the ability to make some decisions and not others. There are specific tests of capacity for different types of decisions. It is also understood that the ability to understand and appreciate may vary over time.
Second, the legislation codifies a clear presumption of capacity for the ability to contract, make decisions about personal care, and to make decisions about treatment, admission to long-term care and personal assistance services.19 Legal capacity in these areas can only be removed through specific mechanisms outlined in the legislation: these mechanisms differ for these decision-making areas, in part because treatment and admission to long-term care involve the provision of necessary services for which the provider has an affirmative duty to obtain consent.20
Third, there is an emphasis on procedural rights. For example, individuals examined for capacity to manage property under the MHA are entitled to rights advice.
Capacity assessors must explain the purpose and significance of an assessment, and the individual has the right to refuse the assessment. Determinations of capacity may be reviewed by the CCB; as well, the affected individual may request a fresh assessment on a regular basis. Both the SDA and the HCCA include provisions for the appointment of counsel for persons whose legal capacity is at issue.21
Fourth, there is a core focus on protecting self-determination to the degree possible. Powers of attorney aim to enable individuals, not only to choose their own substitute decision-maker, but to tailor the powers granted and to express wishes as to how those powers will be exercised. Substitute decision-makers are, in most circumstances, required to encourage participation in decision-making and to take into account the values and wishes of those for whom they are acting. Courts are not to appoint a guardian without considering whether a less restrictive alternative is available.
Finally, there is a clear preference for the private realm. Ontario’s statutory regime encourages the use of family and friends as substitute decision-makers. The SDA makes powers of attorney relatively simple and inexpensive to create and to exercise, while the HCCA uses a hierarchical list of appointees, with the PGT acting only if no individual identified through that list is capable, of appropriate age, available and willing. While the MHA automatically creates a property guardianship by the PGT for incapable persons without a valid power of attorney, it also provides what was intended to be a relatively simple and inexpensive mechanism under the SDA through which family members can replace the PGT as guardians.
All of this must be understood in the context of policy choices in related areas, including decisions not to implement adult protection or broad based mandatory reporting requirements with respect to abuse of adults, and the new approaches to developmental services arising from the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008.
C. IMPORTANT LEGAL PROCEDURES AND INSTITUTIONS
This section summarizes the major legal procedures and institutions involved in this area.
1. Statutory Mechanisms to Assess Capacity
Ontario has an extremely elaborate system for assessing legal capacity, in part deriving from its domain specific approach to capacity. In other words, Ontario’s system for determining legal capacity is complex because it is intended to respond to a multiplicity of needs and situations. The type of assessment of capacity carried out depends on the nature of the decision at issue. In addition to the informal assessments of capacity that are carried out by service providers, there are four formal, statutorily regulated mechanisms:
- Examinations of capacity to manage property upon admission to or discharge from a psychiatric facility: under the MHA, when a person is admitted to a psychiatric facility, an examination of capacity to manage property is mandatory, unless the person’s property is already under someone else’s management through a guardianship for property under the SDA or there are reasonable grounds to believe that there is a continuing power of attorney which provides for the management of propert These examinations are carried out by a physician. While individuals do not have the ability to refuse an examination, there are a number of important procedural protections, such as access to independent, specialized rights advice upon a finding of incapacity.
- Assessments of capacity to manage property or personal care: under the SDA, assessments of legal capacity to manage property or personal care may be carried out for a variety of reasons, such as to trigger statutory guardianship for property or to activate a continuing power of attorney for property or personal care. To trigger a statutory guardianship for property, a Capacity Assessment by a designated Capacity Assessor is required. If a continuing power of attorney for property is one that comes into effect upon the grantor’s incapacity, unless the power of attorney specifies otherwise, the determination of incapacity must be made under the MHA, as described above, or by a designated Capacity Assessor. For a power of attorney for personal care, the assessment is that of the appointed attorney, unless the document requires otherwise. A professional designated as a Capacity Assessor under the SDA must meet particular requirements related to education and training and comply with guidelines developed under the statute. A list of Capacity Assessors is maintained by the Capacity Assessment Office: it is the responsibility of those seeking a Capacity Assessment to select and pay for this service.
- Assessments of capacity to make treatment decisions: under the HCCA, these assessments are carried out by the health practitioner who is proposing the treatment, as part of the process of obtaining valid consent to treatment. Guidelines for these assessments are provided by the health regulatory college for the various profession Patients found to be incapable are entitled to the provision of basic rights information by the treating practitioner.
- Evaluations of capacity to make decisions regarding admission to long-term care: Capacity evaluators are responsible for assessing legal capacity to make decisions regarding consent to admission to long-term care and personal assistance services provided in a long-term care Capacity evaluators must be members of a limited number of health regulatory colleges, but do not have any statutorily mandated training or guidelines related to their activities. As with assessments related to treatment, rights information (rather than independent rights advice) must be provided to a person who is found incapable following an evaluation.
2. Substitute Decision-making
Where a decision is necessary and an individual has been found legally incapable with respect to that decision or that type of decision, a substitute, such as a guardian, person acting under a power of attorney or a substitute decision-maker under the HCCA will make that decision. The methods of appointment are described in the following sections.
Once appointed, the SDM is held responsible at law for his or her actions in this role, and may be liable for damages for breach of duties. The SDM is to act on the individual’s behalf and for that person’s benefit. An SDM for property is a fiduciary, and must carry out his or her duties diligently, with honesty and integrity, and in good faith, for the benefit of the individual.
The legislation sets out criteria for decisions made by SDMs. In managing the property, the SDM shall make those expenditures that are reasonably necessary, in order of priority,
- for the individual’s support, education and care;
- for the support, education and care of the individual’s dependents; and
- that are necessary to satisfy the individual’s legal obligations.
For personal care and treatment decisions, the SDM must respect the prior capable wishes of the individual. If no prior wishes or instructions were expressed, the SDM is to be guided by the best interests of the individual, taking into consideration the following variables:
- the individual’s values and beliefs held while capable, and that the SDM believes the individual would still act on if capable;
- the individual’s current wishes, if they can be ascertained; and
- whether the decision is likely to improve the individual’s quality of life, prevent its deterioration, or reduce the extent or rate of any deterioration;
- and whether the benefits of the decision will outweigh the risk of harm from an alternative decision.
In general, the SDM must choose the least intrusive and restrictive course of action available and appropriate in the circumstances.
SDMs for property and personal care must keep records of their activities, and have a number of important procedural duties, such as:
- explaining their powers and duties to the individual;
- encouraging the participation of the individual in decisions related to property;
- fostering regular personal contact between the individual and her or his supportive family members and friends; and
- consulting from time to time with supportive family members and friends who are in regular personal contact with the individual, as well as those from whom the individual receives personal care.
Powers of Attorney
In Ontario, individuals may use a power of attorney (POA) to personally appoint a continuing SDM for property. Such a POA for property may be drafted to come into effect immediately upon the creation of the document, or at the time when the granter loses legal capacity. As well, a POA for personal care (POAPC) may be created: these only come into effect upon the grantor’s incapacity.
POAs are extremely powerful instruments. A POA for property, for example, enables the holder to do anything that the grantor could do, except to make a will. A person exercising a POA for property can make or cash-out investments, buy or sell property (including the grantor’s home), make purchases both large and small, and transfer financial assets between accounts. The holder of a POAPC has considerable control over the most intimate details of daily life, including where the grantor lives, what kind of health care he or she receives, as well as decisions about hygiene, nutrition and safety. This flexibility allows the attorney to act effectively on behalf of the grantor. It also gives the attorney considerable control over the well-being of the grantor. That is, the POA can be exercised either for good or for ill: the quality of the attorney will have a considerable impact on the life of the grantor. Notably, once an individual has lost legal capacity, she or he may also lose the ability to revoke the POA.
The tests for capacity to create powers of attorney for property or personal care are set out in the SDA. The test for capacity to create a POA for property is relatively rigorous, while that for a POAPC is much more accessible.
There is no required form for these POAs, although individuals may use a form that has been made available through the Ministry of the Attorney General. Two witnesses to the execution of the POA are required. The SDA lists a number of types of individuals excluded from acting as witnesses, including persons under age 18, spouses or partners of either the attorney or the grantor, the attorney, a child of the grantor, or a person who has a guardian for property or of the person.
SDMs may also be externally appointed through two means: a statutory guardianship or a court appointment.
Statutory guardianship is intended to provide an expeditious, relatively low-cost administrative process for entering guardianship. It is available only in relation to property management decisions. Statutory guardianships are triggered automatically through a finding of a lack of capacity, either through an examination for capacity under the MHA, or through a Capacity Assessment under the SDA, as described above.
Initially, the statutory guardian for property is the PGT. However, designated individuals (family members) may apply to the PGT to become replacement guardians of property, and where the applicant is suitable and has submitted an appropriate management plan, the PGT may appoint the person. If the PGT refuses an application to act as a replacement statutory guardian, it must give reasons in writing for its decision. If the applicant contests the decision of the PGT in writing, the PGT must apply to the Court to resolve the matter. If it is found that the individual under statutory guardianship had previously created a POA for property which provides authority over all of the individual’s property, the statutory guardianship is terminated.
Any person may apply to the Superior Court of Justice to be appointed as guardian either of property or the person. Guardianship of the person may be either full or partial, and a full guardianship may be ordered only if the court finds the person incapable with respect to all issues related to personal care, including health care, nutrition, hygiene, safety, shelter and clothing. The court may only appoint a guardian where the individual has been determined to lack capacity to make decisions for property or personal care and as a result needs decisions made on her or his behalf, and the court is satisfied that there is no alternative course of action that would not require a finding of incapacity and would be less restrictive of the person’s decision- making rights.
Appointments under the Health Care Consent Act, 1996
Under the HCCA, where a decision is required with respect to treatment, admission to long-term care or personal assistance services, and the individual does not have the legal capacity to give consent, an SDM for that decision is automatically appointed, according to a hierarchical list which priorizes existing appointments such as a guardianship or POA for personal care, and then members of the individual’s family, such as the spouse, children, parents or siblings. SDMs appointed in this way must be at least 16 years old, themselves legally capable to make the decision, available and willing to assume the responsibility. If no SDM can be identified through the hierarchical list, then the PGT will make the decision.
The HCCA also makes provision for an individual to apply to the Consent and Capacity Board (CCB) to be appointed as a “representative” to make a decision or set of decisions for an individual under the Act.
3. Advance Care Planning
The SDA and HCCA create tools that allow individuals to plan ahead for how decisions will be made on their behalf, should that become necessary. Through a POA for personal care, they may identify who will be their substitute decision-maker if they do not agree with the hierarchy of automatic SDMs under the HCCA. They may also express wishes, values and beliefs about future health care decisions orally or in writing. Advance care planning does not constitute consent to treatment: consent must still be obtained from the SDM, except in emergencies. Where a patient is legally incapable, an SDM is required to determine whether the patient has expressed applicable prior capable wishes and where they exist, to follow them. If no prior capable wishes can be ascertained, the SDM must consider other wishes, values, and beliefs in giving or refusing informed consent. The emphasis in Ontario law is on the role of the SDM in conveying and interpreting the prior capable wishes and in providing consent.
Advance care planning is not the same as an “advance directive”, which allows an individual to provide directions to health care practitioners with respect to treatments they will accept or refuse in future. Ontario differs from several other Canadian jurisdictions, in that advance directives are not available here.
Issues related to advance care planning and the final stages of life are currently the subject of considerable discussion and debate. The challenging issues associated with implementation of the Supreme Court of Canada’s decision in Carter v. Canada regarding physician-assisted dying add importance to achieving an effective and appropriate statutory framework for issues related to capacity, consent and advance care planning. The LCO has commenced a project on Improving the Last Stages of Life which will address a number of issues related to the final stages of people’s lives as they approach death.
4. The Public Guardian and Trustee (PGT)
As noted above, responsibility for the administration of Ontario’s legal capacity and decision-making legislation falls under multiple statutes and government ministries.
There is no single, central body with responsibility for all aspects of these laws. However, the PGT plays a very important role in this area of the law, performing the following statutory functions:
- acting as a decision-maker of last resort under both the SDA and HCCA, and as statutory guardian for property;
- appointing replacement guardians for property;
- conducting “serious adverse effects” investigations and applying to the court for temporary guardianships as appropriate, as is briefly described below;
- reviewing applications for court appointments of guardians, and making submissions or appearances as appropriate;
- reviewing accounts of guardians for property when they are submitted to the court for approval;
- maintaining the registry of guardians; and
- at the request of the court, arranging for counsel (generally referred to as “section 3 counsel”) for individuals whose legal capacity is at issue in a proceeding under the SDA and who do not have legal representation.
5. Dispute Resolution and Rights Enforcement
There are three venues through which abuses of the law, violations of the provisions of the statutes or disputes may be addressed.
Serious adverse effect investigations: One of the responsibilities of the PGT is to undertake an investigation where there is an allegation that a person is incapable of managing either property or personal care, and that incapacity is resulting or may result in serious adverse effects. Notably, this provision is not restricted by whether or not a substitute decision-making arrangement is already in place. The PGT has broad investigative powers within this mandate. Where a PGT investigation provides the PGT with reasonable grounds to believe that a person is legally incapable and that prompt action is necessary to prevent serious adverse effects, the PGT must apply to the court for temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order (thereby terminating any existing power of attorney in that area).
Consent and Capacity Board: The Consent and Capacity Board (CCB) is established under the HCCA as an independent, expert administrative tribunal, with jurisdiction over issues raised by the HCCA, the MHA and determinations of capacity under the SDA. In particular, the CCB may hear applications:
- to review a finding of incapacity, whether by a health professional with respect to treatment, an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home, a physician with respect to the capacity to manage property under the MHA, or by a Capacity Assessor with respect to property;
- to appoint a decision-making representative with respect to decisions to be made under the HCCA;
- for permission for an SDM to depart from the prior capable wishes of a person who lacks capacity;
- to determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made;
- for directions when the appropriate application of the HCCA with respect to a required decision is not clear; and
- for review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility.
Superior Court of Justice: In contrast to the CCB, the Ontario Superior Court of Justice has a more limited but still crucial role in this area of law. The Superior Court of Justice is responsible for the appointment, variance and termination of guardianships, as well as providing oversight of the activities of SDMs and resolving questions of interpretation. Notably, the Court may hear applications for the passing of all or part of the accounts of either a guardian or attorney for property. The Court also has broad powers to “give directions on any question arising in connection with the guardianship or power of attorney” [emphasis added] for either property or personal care. The Court has broad remedial powers when addressing applications for directions or for the passing of accounts. For example, upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian, or terminate the guardianship.
In understanding Ontario’s current systems in this area, it is important to know that they were originally designed in the context of an elaborate system of advocacy supports for persons who were affected by these laws. The Advocacy Act, repealed in 1996, was intended to provide advocacy services to assist vulnerable individuals to express and act on their wishes, ascertain and exercise their rights, and speak on their own behalf. These advocacy supports would have acted as counterbalance to the relatively easy entry to substitute decision-making through powers of attorney, statutory guardianships, and automatic appointments under the then Consent to Treatment Act, 1992 (since replaced by the HCCA), assisting individuals to access the otherwise largely passive statutory mechanisms for asserting rights and reducing needs for monitoring and oversight functions.
D. SUMMARY: STRENGTHS AND WEAKNESSES OF LEGAL CAPACITY, DECISION-MAKING AND GUARDIANSHIP IN ONTARIO
The core strengths and weaknesses of Ontario’s laws are discussed in greater depth in each of the Chapters of this Final Report, but are briefly summarized here to provide a sense of the overall functioning of these systems.
As is described briefly in the introduction to this Chapter, Ontario’s current law related to legal capacity, decision-making and guardianship is the result of an extensive and thoughtful law reform process spanning a number of years during the late 1980s and early 1990s. The result was legislation which was progressive and innovative in its approach to the issues, largely philosophically consistent and reasonably well coordinated. There are a number of aspects of Ontario’s current law which were far-sighted at the time, continue to be valuable, and should be preserved in any reforms.
Emphasis on the importance of self–determination: Charter and human rights values of self-determination and freedom from unwarranted intervention underlie many aspects of the current legislative framework, resulting in an emphasis on respecting where possible the right of individuals to make choices that others disagree with or that may be risky or unwise.
Nuanced approaches to legal capacity: As noted above, Ontario has adopted a nuanced concept of legal capacity, with a domain and time-specific approach, and a presumption of capacity to contract as well as with respect to treatment, admission to long-term care and personal assistance services, an approach designed to be responsive to individual circumstances and contexts, and to reduce intervention as much as possible.
Contextual approach: Ontario’s approach aims to be sensitive to the multiple contexts in which legal capacity and decision-making issues arise, so that processes are tailored to the specific circumstances of, for example, persons admitted to psychiatric facilities or older persons for whom long-term care is in contemplation.
Accessible powers of attorney: In Ontario, powers of attorney are very simple and low-cost to create, making them an easily accessible planning tool for Ontarians. They allow individuals to plan ahead, choose their own SDMs, and limit or direct how substitute decision-making powers are exercised.
Clear and appropriate duties for substitute decision-makers: Ontario’s approach to substitute decision-making is based for the most part in a “substituted judgment” approach, in which the SDM is required to stand in the shoes of the individual and to take into account their goals and values when making decisions. SDMs are required to support participation in decision-making by the individuals on whose behalf they act, and to encourage support from others who care for individuals. This approach attempts to avoid paternalism and to respect the individuality and goals of the individual to the greatest degree possible in the circumstances.
Enabling families: The automatic appointments of SDMs under the HCCA and the accessibility of POAs under the SDA make it easy, in most cases, for families to be appointed to act for their loved ones. Once SDMs are appointed, the current approach allows a great deal of flexibility and discretion in how duties are carried out.
Balanced approach to advance care planning: The balance struck in Ontario’s advance care planning regime between the importance of allowing individuals to express their values, beliefs and wishes, and the risk of inflexibly binding individuals to poorly expressed or inapplicable directives had general (though not universal) support during the LCO’s public consultations, and appears to the LCO to appropriately address the competing needs of various stakeholders on a sound principled basis.
Protection of procedural rights for persons lacking or perceived to be lacking legal capacity: The legislation makes provision for procedural rights in most situations where legal capacity is removed. This embodies a recognition that removal of the right to make one’s own decisions is a serious infringement on autonomy, and attempts to ensure that rights are removed only where justified and only where the individual has had an opportunity to challenge that decision.
Accessible adjudication by the Consent and Capacity Board: The CCB overall provides accessible and timely adjudication that attempts to balance the competing needs in this area of the law.
Important roles performed by the Public Guardian and Trustee: The PGT performs a range of important functions in the legal capacity and decision-making system, including its investigative powers in situations raising concerns of serious adverse effects, its role as a last-resort decision-maker, its review of guardianship applications and the maintenance of a register of guardians.
The LCO’s research and consultations also revealed a number of challenges in the Ontario approach to legal capacity and decision-making laws. In some cases, these result from implementation challenges; in others, they are shortfalls in design.
Confusion within a complex system: As the brief description above reveals, Ontario’s legal capacity, decision-making and guardianship regime is extremely complicated, with multiple layers, pathways, tests and institutions. Tests for capacity and mechanisms for assessment vary depending on the type of decision to be made, as do procedural protections and avenues for recourse. There are multiple types of appointment mechanisms, and considerable variance even within the processes for the appointment of a guardian. There is no central repository for knowledge about the system, and relatively little in the way of navigational supports. As a result, not only individuals and families but also service providers often find the system extremely confusing and difficult to navigate. Complexity is perhaps inevitable in any system that is designed to be responsive to multiple needs and contexts. Nevertheless, the LCO believes that the system could be clarified in some important respects.
Misunderstandings and lack of knowledge about the law: Connected to the previous point, misunderstandings of the law are widespread among all sectors, and have a significant effect on the implementation of the law. Despite the important role played by SDMs, there is little in the way of structured information, tools or supports easily accessible to this group. Stakeholders have reported that misunderstandings of the law are widespread among health practitioners, and that there are shortcomings in assessments of capacity under the HCCA as a result.
Lack of clarity and standardization with respect to assessments of capacity: The nuanced approach to legal capacity that is foundational to this legislation means that assessments of capacity will necessarily differ somewhat depending on the nature of the decision to be made. However, the very different training and standards applicable to the different types of assessments result in processes and quality that vary greatly, both between and even within a particular decision-making domain, adding to the confusion for people accessing the system and in the operation of the system.
Lack of oversight and monitoring mechanisms for substitute decision-makers: There are few means of monitoring the activities of SDMs once they are appointed. This is true for all SDMs, but particularly for those acting under a POA, who may be exercising a broad range of powers over a long term, with effectively no supervision. Combined with the lack of understanding of the law, this creates a situation where misuse of SDM powers or even abuse may be undetected, with negative effects on the lives of those individuals whom they are meant to assist.
Barriers to Capacity Assessments under the Substitute Decisions Act, 1992: In certain circumstances, the creation of or challenge to a guardianship under the SDA, requires a Capacity Assessment by a designated Capacity Assessor. These Capacity Assessments are provided on a consumer model, in which individuals seeking an assessment must locate and pay for an appropriate Capacity Assessor. This approach can result in considerable barriers either to entering guardianship or to exiting it, whether because individuals have difficulty in navigation, or because of cost.
Lack of meaningful procedural protections under the Health Care Consent Act, 1996: While the HCCA contains procedural protections for persons found to lack legal capacity with respect to treatment or admission to long-term care, these protections are largely ineffective. Provisions regarding rights information are poorly understood and unevenly implemented, so that individuals may have their rights to decide for themselves removed without being informed or having any meaningful recourse.
Inflexible appointment mechanisms under the Substitute Decisions Act, 1992, resulting in overly intrusive measures: While the underlying intent of the SDA appears to be to ensure that guardianship, as a very intrusive measure, is applied only where no less restrictive alternative exists, in practice the costly and relatively inflexible mechanisms surrounding guardianship mean that this goal is not consistently achieved: to avoid subsequent applications, guardianships sought and granted may be broader than actually needed.
Inaccessible rights enforcement and dispute resolution mechanisms under the Substitute Decisions Act, 1992: Most of the remedies available under the SDA to access rights or resolve disputes require application to the Superior Court of Justice, a costly, complicated and intimidating process that is practically inaccessible to many individuals directly affected and their families. Some individuals will attempt to represent themselves in the court system, while others decide that they must abandon attempts to enforce their rights. As a result, the rights under the legislation often go unfulfilled. This raises fundamental issues of access to justice.
The role of families: The current legislation gives priority to family members as the most appropriate substitute decision-makers, for example through the HCCA automatic appointment list, or the provisions regarding replacement statutory guardians. The requirements of this challenging role may be seen in many ways as naturally suited to the family, particularly since most substitute decision-makers carry out this role without compensation. However, as families change, decrease in size and become more geographically dispersed, the assumption that families can be consistently available or appropriate for this role increasingly comes into question.
Further, despite the many challenges of the role, the current system provides very little information or supports to the family members who are expected to carry it out.
Impact on institutions and service providers: Because of the complexity of the system, institutions and service providers may themselves experience difficulty in navigating the system – for example, in identifying the appropriate mechanism for meeting a particular person’s need for an assessment of legal capacity, or how to address a concern regarding potential abuse.
Challenges in monitoring and evaluating the system: Ontario’s systems related to legal capacity, decision-making and guardianship are highly decentralized. As a result of the relative lack both of central coordinating institutions or mechanisms and of means for gathering and disseminating data about the operation of the system, there are challenges in evaluating the current system, whether on an ongoing basis to correct problems of implementation, or as part of a more thorough-going review.