A. INTRODUCTION AND BACKGROUND
1. The Importance of Powers of Attorney
One of the most important reforms included in the Substitute Decisions Act, 1992 (SDA) was the introduction of powers of attorney (POA). These instruments allow individuals to appoint one or more persons to make decisions for them, including during the legal incapacity of the grantor.
This created a process for personally appointing substitute decision-makers (SDM) in a way that was highly flexible and accessible. The POA was a considerable advancement for the autonomy of Ontarians, allowing them to choose for themselves who would make decisions for them if necessary, and to create tailored instructions or restrictions for those decision-makers.
Since these are personal documents, often self-created, there is little data on their use. However, there is no doubt that they are widespread. POAs are certainly far more widely used than guardianships, and are now common planning tools, often prepared in conjunction with wills. Because they provide appointees with extensive powers over the life of the grantors, they have significant implications for autonomy, security and dignity. And because they potentially affect so many areas of life, including finances, shelter decisions and health care, they affect the daily practices of a very wide array professionals and institutions.
Ontario’s legislation regarding POAs aims to make these tools widely accessible. As a result, there are relatively few practical or procedural barriers to their creation, as compared with other jurisdictions. The resultant risk is that those creating POAs may not fully understand the potential implications of doing so, and may put themselves at risk of abuse, neglect or exploitation by their attorneys. In practice, individuals may choose an attorney for reasons that have very little to do with who would best exercise that role, and more to do with family dynamics. Attorneys, particularly family members, may accept the role out of a sense of duty, without any sense of the extent or nature of the obligations that it entails.
As well, as private appointments, these powerful documents are currently amenable to very little scrutiny, so that abuse or misuse may be difficult to detect. Further, the very impairments in memory, ability to receive or assess information, or to evaluate the intentions of others that are reasons to activate substitute decision-making arrangements also make it harder for those individuals to monitor the activities of the persons acting under a personal appointment or to identify or seek help regarding inappropriate or abusive behaviour.
This Chapter focuses on the creation of powers of attorney and the responsibilities of those appointed, with a view to addressing these concerns. Although the proposed support authorizations are not a form of substitute decision-making, they are also personal appointments and pose risks that are in some ways similar. Therefore, some elements of the discussion in this Chapter are also applicable to these arrangements, should the government decide to add such arrangements to the legislation. These elements are discussed, albeit briefly, in Chapter 4.I.3.
- Chapter 7, which addresses rights enforcement and dispute resolution, discusses the available mechanisms and remedies where abuse or misuse arises: this Chapter focuses on the prevention and identification of such issues.
2. Distinguishing Abuse and Misuse
While definitions of abuse, elder abuse and abuse of persons with disabilities continue to be subjects of debate, it is clear that these are large issues with multiple dimensions and many aspects that fall beyond the scope of this project. In particular, this project is not intended to deal with abuse of persons whose decision-making abilities are not impaired and whose legal capacity is not at issue. Broader issues related to abuse of legally capable older adults were frequently raised during the consultations. While these form part of the context of the issues under examination in this project, the LCO does not intend to make recommendations on these more general issues and believes that it is important to maintain a distinction between the situations of legally capable and incapable persons with respect to abuse.
It is useful to distinguish abuse and misuse of powers of attorney. Although abuse and misuse may overlap and both may have significant negative consequences for those affected, they differ in their motives and in whether they are inadvertent or intentional, and therefore in strategies for prevention, identification and redress. For example, the provision of information and education is likely to be important in addressing misuse of statutory decision-making powers; it is likely to have less of an impact in shaping the behaviour of deliberate abusers.
Abuse carried out through statutory powers is just one aspect of the broader problem of abuse of older persons and persons with disabilities. Abuse may include physical, sexual, psychological or financial abuse, as well as neglect.248 Abuse may be perpetrated by institutions or by individuals – as the Vanguard Project notes, by “anyone who may be in a position of intimacy with or power over the vulnerable adult”. It generally includes an element of violation of trust and dependency.
Misuse of statutory decision-making powers is a more pervasive problem. A well- intentioned individual may be unaware of or misunderstand their role and obligations under an appointment, or may not have the skills to fulfil it. As a result, he or she may, for example, use a POA for purposes beyond those intended, fail to carry out important obligations such as consulting the person or keeping accounts, or inappropriately apply a paternalistic or best interests approach to decision-making where the legislation indicates another approach is required. As a result, the clear intent of the legislation may be subverted, and the autonomy, dignity and participation of the affected individual may be undermined.
B. CURRENT ONTARIO LAW
Current Ontario law includes a number of provisions intended as safeguards against abuse or misuse of the powers granted to SDMs under a POA.
Execution requirements: The SDA includes a number of requirements for the creation of a POA that are intended to ensure that those creating POAs understand the implications, and are not coerced into creating these documents. These include the requirements for two independent witnesses to the creation of the POA, and for a statement of intent in creating a continuing POA for property, among others.
Record–keeping requirements: All SDMs under the SDA are required to keep accounts of their activities on behalf of the person they are appointed to assist.
Procedural duties: The SDA includes a number of requirements that increase transparency and accountability for SDMs, including duties to explain their role to the person, foster supportive contact with family and friends, and to consult from time to time with family and friends in the discharge of their responsibilities.
Standard of care: SDMs for property are held to a fiduciary standard, while SDMs for personal care are required to act diligently and in good faith.
Clear requirements for decision–making: The clear requirements as to the principles and considerations to be taken into account in the discharge of the SDM’s role simplify determinations of whether the SDM is acting to benefit the person rather than his or herself.
C. AREAS OF CONCERN
Powers of attorney are powerful legal tools that advance autonomy rights in important ways. It is also true, however, that abuse and misuse of legal capacity and decision- making laws through POAs was a dominating concern at all stages of this project.
Concerns were expressed by legal professionals, families, health practitioners, advocates and community organizations, long-term care providers, financial institutions and other service providers – that is, across the full range of those consulted.
Misuse and Abuse of Powers of Attorney: Considering the Limited Evidence
The Challenge of Data Collection
We don’t know how many POAs exist:
- POAs are privately created, including through commercial “kits” that are widely available in stores and through forms made available through Ontario’s Ministry of the Attorney General.
- As there is no central repository for POAs, we can’t know how many have been creat
- Once a POA has been created, it may be many years until it comes into effect, or it may never come into effect at a The number of POAs in existence does not equal the number in use.
We don’t know how frequently POAs are misused or abused:
- While anecdotal reports of abuse of POAs, and particularly POAs for property, are widespread, it appears to be relatively rare for individuals to seek redress through legal processes, for a variety of reason
Some Data to Consider:
- A pioneering national survey on elder abuse indicated that 4 per cent of the approximately 2,000 respondents age 65 and older had experienced some form of abuse, with financial abuse being the most common type of abuse, suffered by 5 per cent of the sample. The sample included only older persons living in private dwellings and not those living in institutional settings. (Elizabeth Podnieks,“National Survey on Abuse of the Elderly in Canada” (1993) Journal of Elder Abuse and Neglect 4)
- A 1998 British Columbia study that focussed exclusively on financial abuse found a rate of eight per cent of older adults indicating that they had experienced financial abu The two most common forms of financial abuse in this study were concerted coercion, harassment and misrepresentation, followed by abuse via power of attorney. (Charmaine Spencer, Diminishing Returns: An Examination
of Financial Abuse of Older Adults in British Columbia (Gerontology Research Centre, Simon Fraser University: 1998))
- A 1999 Manitoba study on financial abuse of incapable adults under an order of supervision by the PGT found a rate of 5 per cent suspected financial abuse among subjects over age 60. The most common suspected abuser was an adult child of the subject. (John B. Bond et al, “The Financial Abuse of Mentally Incompetent Older Adults: A Canadian Study” (1999) 11:4 Journal of Elder Abuse and Neglect 23)
- Younger persons with disabilities have in general a higher risk of violence and victimization that is exacerbated for those who are living in institutional settings, have severe disabilities or have “mental disorders”. Persons with disabilities are particularly likely to be victimized by someone they know, whether it be family, friends, neighbours or care providers. Statistics Canada, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems by Samuel Perreault (Ottawa, Canadian Centre for Justice Statistics: 2009)
The general perception is that this is a significant and very troubling issue, and that demographics and economics indicate that it is only likely to grow in extent.
I live now in a full time practice where I only see those [POAs] that go wrong and I’m always mindful of the fact that I hope to think most of them go right, so that we’ve got to be careful before we cast a wide net that affects 100% of the situations. I’m not going to be blind to the fact that there is an ever growing number of situations of terrible abuse, talking about financial abuse ….Having said that, with an aging population, with what appears to be great inroads made in medical science to keep us alive longer but not necessarily keep our minds functional, we become more susceptible as we grow older and more vulnerable, and so there’s a lot of that grey area.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2014
The LCO received a number of very lengthy submissions from family members who felt that their loved ones had been mistreated through POAs and expressing frustration with the mechanisms for redress curren