A. INTRODUCTION: THE FRAMEWORKS FOR THE LAW AS IT AFFECTS OLDER ADULTS AND PERSONS WITH DISABILITIES
As was highlighted in Chapter 1, 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. These projects were designed to develop approaches to law reform relating to these two communities. These projects resulted in comprehensive Reports as well as the Frameworks, which set out step-by-step approaches to evaluating laws, policies, practices and law reform proposals related to the two groups, based on a set of principles and considerations. From its inception, this project was intended to apply the considerations and principles that underpin the Frameworks to the law of legal capacity, decision-making and guardianship, to develop recommendations for reform to law, policy and practice.
- Appendix E of this Paper sets out the Principles and Considerations for Implementation of each of the Frameworks for easy reference. The full Frameworks contain a step-by-step process for evaluating laws, policies and practices, including examples and questions for consideration. The full Frameworks and their accompanying Reports can be accessed at http://www.lco-cdo.org/en.
This grounding of the project in the Frameworks has had implications for its every aspect, including the following.
Focus on substantive equality for persons with disabilities and older adults: Most profoundly, adopting a Framework analysis means that the LCO’s analysis of the impact of the law and of its effectiveness has focused on the experiences of persons with disabilities and older adults who are affected by these laws, and that the ultimate intent of the recommendations is to advance the substantive equality of these individuals. It also means that the analysis is rooted in the Framework principles, which are themselves derived from foundational laws, such as the Charter of Rights and Freedoms and the Ontario Human Rights Code, and from international instruments such as the International Principles for Older Persons and the Convention on the Rights of Persons with Disabilities (CRPD).
Emphasizing an inclusive law reform process: As well as the substance of the analysis and recommendations, the Frameworks have shaped the project process. Step 2 of each of the Frameworks sets out considerations for reviewing or developing new legislation. These focus on the meaningful inclusion of older adults and persons with disabilities in the process of review, including processes for research, public consultation, communications and analysis.
Considering the implementation gap: The problem of the “implementation gap” plays a central role in both Frameworks. Even where laws are based on a thorough and nuanced understanding of the circumstances of older adults or persons with disabilities and aim to promote positive principles, their implementation may fall far short of their goals. There may be many reasons for the implementation gap: problems with misunderstandings of the law, negative or paternalistic attitudes on the part of those responsible for implementing it, and shortfalls in mechanisms for access to the law, including systems for rights enforcement and dispute resolution. The Frameworks therefore focus not only on the substance of the law, but also on how it is applied in practice, and encourage users to consider shortfalls not only in the law itself, but in the policies and practices that accompany it. The implementation gap plays a significant role in critiques of Ontario’s legal capacity, decision-making and guardianship laws.
This Chapter provides an overview of the Frameworks, and of how the principles and considerations have been applied in this project. As well, each Chapter explicitly considers the application of the Frameworks to the particular issues raised in that Chapter.
B. APPLYING THE FRAMEWORKS: CONSIDERING THE CONTEXTS IN WHICH THE LAW OPERATES
Step I of the Frameworks asks users to consider the context of the particular law being evaluated, including how that context may relate to or affect the attainment of the principles, and the challenges or constraints implicit in that context.
There are a number of contexts that were brought to the LCO’s attention during research and consultations as crucial to take into account in developing recommendations for improvements to law, policy and practice in the area of legal capacity, decision-making and guardianship.
Connecting the issues to broader issues of disability and elder rights: Issues related to legal capacity and decision-making cannot be separated from broader issues of disability and elder rights. The application of the LCO’s Frameworks to this area makes this broader connection clear. It is also highlighted by the significant role of Article 12 of the United Nations CRPD.27 Persons with disabilities and older persons, as well as their advocates, have framed issues related to legal capacity and decision-making as central to the achievement of equality, dignity and autonomy for these groups. For example, ARCH Disability Law Centre has stated,
Due to the manner in which guardianships are created, and the broad-reaching nature of guardians’ power and obligations, guardianships have the potential to significantly impact the rights of persons with disabilities who have capacity issues. These are fundamental human rights, including the right to legal capacity, the right to self-determination, and the right to substantive equality.
Demographic and social trends and pressures: The Discussion Paper briefly highlighted some of the key demographic and social trends affecting this area of the law. Some of this material is highlighted on the following page.
Also important to consider is the growing cultural and linguistic diversity of Ontario. Looking at Toronto alone, over 140 languages and dialects are spoken in the city, and over 30 per cent of the population speaks a language other than English or French at home. Half of Toronto’s population was born outside of Canada.29 There is a significant population of Franco-Ontarians, particularly in Eastern and Northeastern Ontario, and despite their linguistic rights, they may face challenges in accessing information and services in their own language, as the LCO heard during the course of its consultations. As well, attention must be paid to the cultural, linguistic and other needs of Indigenous Ontarians. This diversity requires knowledge and sensitivity in the provision of information and education about this area of the law, in the provision of supports for navigating the law, and in the assessment of legal capacity, where linguistic or cultural barriers may affect the outcome of the assessment. Therefore, to the extent possible, we need to provide not only translation, but cultural translation.
Cultural translation: In translating from one language to another, simple transcription or rendering of words may not be sufficient. Words and concepts are embedded in a cultural context involving historical, social, religious and other factors. The literal meaning of a word or concept in another language may not reflect how it is actually understood in another language. It may be valuable to prepare written or oral supports first, not in English or French but in the relevant other language.
The impact of social isolation and marginalization: Consultations widely emphasized the social isolation and marginalization often affecting those most deeply affected by this area of the law, and the significant implications of this for any approach to law reform. Broader societal challenges related to the principle of promoting social inclusion and participation for persons with disabilities and older adults are an important context for this project and a challenge for law reform.
Persons Affected by Legal Capacity Laws: Some Background
Persons with Acute Illnesses
- Those who temporarily lose legal capacity to make decisions in the context of treatment for an acute illness make up a very large but amorphous group of persons affected by this area of the
Older Persons Developing Cognitive Disabilities Later in Life
- In 2008, 7 per cent of Canadians age 60 and older lived with some degree of dementia, while 49 per cent of those over age 90 did so. The Alzheimer’s Society of Canada’s recently estimated that the prevalence of dementia will more than double over the next 30 years, up from 5 percent of Canada’s population in 2008 to a projected 2.8 per cent of the population in 2038.
- The vast majority of older adults – 93 per cent – live in private household “Aging in place” is the goal of the vast majority of older adults. As age increases, so does the likelihood of living in a congregate setting, such as a retirement home or long-term care home: approximately one-third of individuals over the age of 85 live i