VIII. External Appointment Processes: Increasing Flexibility and Reducing Unnecessary Intervention

Introduction & Background

As was discussed in Chapter 3, one of the values underlying the current legislation related to legal capacity, decision-making and guardianship is avoidance of unnecessary intervention. Substitute decision-making was intended to be used as a last resort, where legal capacity is lacking and

substitute decision-making is required for a necessary decision to be made. Ontario’s current laws in this area contain a number of significant measures intended to prevent unnecessary intervention in the lives of individuals and ensure that substitute decision-making – and in particular guardianship – are used only where there are no appropriate available alternatives. However, during the LCO’s public consultations, many participants expressed concerns that substitute decision-making continues to be inappropriately or excessively employed.

Chapter 5, which considers assessments of capacity, addresses concerns with how substitute decision-making is triggered under the Health Care Consent Act, 1996 (HCCA) through various assessments of legal capacity.

During the consultations in this project, the most serious concerns about inappropriate intervention were expressed about guardianship, since it is more restrictive than a power of attorney (POA), is the least flexible in terms of entry and exit, does not provide the opportunity for the individual to select the substitute decision-maker (SDM) or to formally express wishes as is possible with POAs, and is generally experienced as more marginalizing. As well, because powers of attorney are personal rather than public appointments, many of the issues related to their misuse arise in connection either with faulty approaches to assessing capacity (and thereby improper activation of these documents) or with misuse by the SDM. Therefore, this Chapter focusses on the appointment of guardians.

Issues related to misuse of powers of attorney are dealt with in Chapter 6 of this Report.

There are a variety of reasons why substitute decision-making may be sought or imposed where it is not necessary. In some cases where legal capacity is doubtful, service providers may seek formal arrangements that appear to provide them with assurance that the agreements into which they are entering are legitimate and enforceable. Efforts to comply with privacy protections may preclude individuals from making use of the kind of informal supports and arrangements that have been employed in the past, for example by making it difficult for family members to obtain or share information on behalf of their loved ones. Families who are struggling with the challenges of caring for a person with a significant disability affecting their cognition may hope that formal substitute decision-making arrangements will give them greater access to supports or ease the difficulties of providing care. Conflicting family members may hope that a formal position as SDM will give them the upper hand in their disputes. Pressured service providers may find it simpler to consult with and obtain decisions from family members, rather than take the time to determine on a case by case basis whether the individual can make her or his own decisions or to effectively communicate with a person with challenges in receiving, analyzing or providing information.

Problems in the implementation of existing laws may contribute to this kind of misuse or overuse of substitute decision-making. For example, professionals, service providers and SDMs often misunderstand the law in this area, particularly the concept of legal capacity and the responsibilities of SDMs. As a result, they may fail to respect the provisions of the law intended to limit the use of substitute decision- making, such as the presumption of capacity and the notion of domain or

decision-specific capacity. The costliness and complexity of the processes for creating and terminating guardianships may encourage guardians to seek broad, rather than limited (and possibly more appropriate) powers, to avoid having to undergo the process again. It may also discourage efforts to terminate guardianships when they are no longer needed.

There are recommendations throughout this Final Report that aim to reduce inappropriate or unnecessary interventions and to safeguard autonomy. For example, recommendations related to education and information aim to ensure that SDMs understand the limits of their powers and their responsibilities to encourage the participation of the person affected. Recommendations related to alternatives to substitute decision-making, as outlined in Chapter 4, aim to provide options for those for whom other approaches are more appropriate. Recommendations in Chapter 6 aimed at strengthening monitoring and rights enforcement related to substitute decision-making are intended to reduce inappropriate or excessive use of substitute decision-making powers. This Chapter focusses on changes to the external appointment processes to help ensure that guardianships are used only where and to the extent that no other alternative is available and appropriate.

B.  CURRENT ONTARIO LAW
In Ontario, guardians may be appointed through two means: statutory guardianship for property (only) and court-appointed guardianships for either property or personal care.

Statutory Guardianship
Statutory guardianship is the major means through which individuals enter into property guardianship. Based on 2013-2014 figures provided by the Public Guardian and Trustee, of those persons currently under property guardianship in Ontario, approximately three-quarters entered this status through the statutory guardianship process.412

Statutory guardianships are triggered automatically through a finding of a lack of capacity, either through an examination for capacity under Part III of the Mental Health Act (MHA), or through a Capacity Assessment requested by“a person” under section 16 of the SDA. It is important to note that these assessment processes are attended by a number of important rights protections, intended to recognize that the consequences of these assessments for the fundamental rights of the affected individual may be extremely significant.

Processes for capacity assessments are detailed in Chapter 5.

For example, Capacity Assessments under the SDA may only be conducted by a qualified Capacity Assessor who has met designated requirements for education and training.413 The SDA sets out a number of procedural rights for persons undergoing these assessments,414 including a right in most circumstances to refuse an assessment;415 a right to receive information about the purpose, significance and potential effect of the assessment;416 and a right to receive written notice of the findings of the assessment.417 Where the individual becomes subject to a statutory guardianship, the Public Guardian and Trustee (PGT) must, upon receipt of the certificate of incapacity, inform the individual that the PGT has become their guardian of property and that they are entitled to apply to the Consent and Capacity Board (CCB) for a review of the finding of incapacity.418

Persons who enter into statutory guardianship under the provisions of the MHA do not have the right to refuse the assessment, but do have the important right to timely provision of a rights adviser,419 who will meet with the patient and inform her or him of the significance of the certificate and of the right to appeal to the CCB. If requested, the rights adviser will assist the patient to apply for a hearing before the CCB, obtain a lawyer or apply for Legal Aid.420

Statutory guardianship is intended to provide an expeditious, relatively low-cost administrative process for entering guardianship. It was included in the SDA in accordance with the recommendations of the Fram Report, which characterized it as a process intended to “allow families to avoid unnecessary applications to court in situations where there is no doubt about an individual’s incapacity, and the person does not object to having a [guardian]”.421 It is important to note that statutory guardianship applies only to property management, and not to personal care.

Upon a finding of i