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 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
|Property Guardianships in Ontario 2013–2014
|Open Court Appointed Guardianships:||3,975
|PGT as guardian
|Open Statutory Guardianships:
|PGT: Certificate under the MHA
|PGT: Capacity Assessment under the SDA
|PGT: Resumption under s. 19 of the SDA
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 incapacity to manage property, the PGT becomes the statutory guardian, unless there is already a POA for property or a guardianship in place. However, designated individuals 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. There is currently a fee in Ontario of $382 plus HST levied where an application for replacement guardianship is approved and a certificate of statutory guardianship is issued.
Application process and procedural protections: Any person may apply to the Superior Court of Justice to appoint a guardian of property or personal care.422 It is important to note that guardianships of the person can only be obtained through a court order, and not through a statutory process. Further, guardianship of the person may be full or partial, and full guardianship may be ordered only if the court finds that the individual is incapable with respect to all issues contained within this area, including health care, nutrition, hygiene, safety, shelter and clothing.423
An application for guardianship must be accompanied by:
1. consent of the proposed guardian;
2. a plan for guardianship (if the application is for personal guardianship) or for management of property (if the application is for guardianship of property);
3. a statement from the applicant indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or if it was not possible to give the person this information, an explanation of why it was not possible.424
The SDA contains additional measures to ensure an adult’s due process rights in these applications. It requires that notice of the application be served with accompanying documents on the adult alleged to be incapable, specified family members and the PGT, among others.425 The SDA also requires, in the case of a summary disposition application, at least one statement of opinion by a Capacity Assessor that an adult is incapable and, as a result, the same measures of due process that apply to Capacity Assessments for statutory guardianship appointments also apply to those for summary disposition applications. These include that a Capacity Assessor must provide information to the adult about the purpose and effect of the Assessment and that the adult is entitled to refuse the Assessment.426
As well, for all applications for court-appointed guardianships, the PGT is a statutory respondent.427 The PGT reviews these applications, and will send a letter addressing the issues raised by the application to counsel for the applicant as well as to the Registrar for the Superior Court of Justice. In most cases, issues are clarified and resolved prior to hearing, but in rare cases, the PGT may appear at the hearing to submit responding evidence or make submissions or both.428
Summary procedures: The SDA provides for summary procedures for both applications for and termination of guardianship. This allows the applications to be addressed on the basis of the documents provided, without a hearing or any appearances, where all parties agree to do so. In such summary applications, the judge may grant the relief sought, request the parties to provide further evidence or make representations, or order the matter to proceed to a hearing.429
There is little evidence about how summary dispositions operate in practice. The LCO heard from one lawyer that in some cases summary disposition applications have worked effectively and expeditiously as a streamlined process. They minimize the possibility of a court appearance, which makes them more cost-effective. They have particularly worked well in the developmental disability community, when the relationship between the adult and his or her family members is “straightforward” and the application is not contested.430 However, summary disposition applications are not used frequently. The LCO has heard that one explanation for the low usage of summary disposition applications in Ontario is that appointing a guardian without a hearing has raised concerns regarding due process, given the gravity of the rights at issue.431 The Law Society of Upper Canada states that “it should be noted that not all jurisdictions or members of the bench allow guardianship matters to proceed in this fashion, citing that the seriousness of the relief requested requires a hearing”.432
Least restrictive alternative: Under the SDA a guardian may only be appointed by the court under the following circumstances:
• the individual has been determined to lack capacity to make decisions related to property or to personal care, and as a result of that lack of capacity needs decisions made on her or his behalf by a person authorized to do so;433 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.434
The term “alternative course of action” is not defined in the legislation, and in practice, these provisions have received limited use. Powers of attorney have been recognized as important alternatives to guardianship,435 as well as the importance of informal supports. Notably in Koch (Re), the Court found Koch capable of managing property, commenting that mental capacity exists if the individual is able to carry out decisions with the help of others, and that the appellant had access to a number of services and supports that allowed her to function in her environment.436
The wording of the legislation indicates that guardianship is meant to be used as a last resort: even if a person is found to lack legal capacity, a guardian will only be appointed if there is a need for decisions to be made, and there is no less restrictive alternative available. Stephen Fram commented about these provisions to the Standing Committee that held hearings regarding what became the SDA that:
It has always been the intention of the various governments that guardianship, because it takes away all rights in connection with a person, be the last alternative when you can’t use powers of attorney for personal care, when you can’t use a Ulysses contract, where you can’t use other forms of a Consent to Treatment Act. The last thing in the world we want is too much guardianship in the province. This really says, ‘Guardianship is the last resort. If you can’t get the decisions in another way, court-appoint the guardian, but otherwise look to less restrictive means.437
Bach and Kerzner argue that the least restrictive alternative and alternative course of action provisions were originally intended specifically to “address the needs of a very specific group – those individuals with significant