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 intellectual and cognitive disabilities who were unlikely to meet the threshold to appoint a power of attorney for personal care”, and who wish to make decisions without a finding of incapacity, in the context of their trusting relationships, by enabling alternative approaches to substitute decision-making.438
When an SDA Capacity Assessment is carried out for the purposes of an application for a summary disposition court-appointed guardianship, the Capacity Assessor may be required to complete, as an accompaniment to the Capacity Assessment, a “Needs Statement” which addresses whether it is necessary for decisions to be made on the person’s behalf. The Ministry of the Attorney General’s binding Guidelines for conducting Capacity Assessments comment as follows on such Needs Statements:
In providing a “needs statement”, the assessor is commenting on necessity: that is, whether the person will derive substantial benefit from having a guardian act or make decisions on his or her behalf.
In the absence of a court ruling providing interpretation as to the definition of “necessity”, two interpretations are proposed, and it is recommended that assessors answer both:
1. Is there a requirement for a formal consent (to a transaction, for example) in order to obtain or provide protective services to reduce the risk of harm or to prevent the loss or dissipation of the estate? ….The focus is on the merits of the appointment of a guardian for the benefit of the person, as opposed to the benefit of a third person such as a creditor.
2. Does the person face likely and serious harm to his or her well-being, or to their estate, if a guardian is not appointed?
This interpretation recognizes that guardianship legislation has risk- management for the incapable person as its ultimate goal. 439
Concerns have been raised that even where guardians have been appointed for valid reasons, those guardianships may nevertheless be too broad.
C. AREAS OF CONCERN
Despite the procedural and substantive protections associated with the appointment of guardianships in Ontario, there remain concerns that some individuals continue to have substitute decision-making arrangements inappropriately applied to them, or that appropriate substitute decision-making arrangements are in practice implemented in a way that overly restricts the lives of those affected. The most significant concerns include the following:
Overly broad application of guardianship: Concerns have been raised that even where guardians have been appointed for valid reasons, those guardianships may nevertheless be too broad. For example, a person who is legally incapable of making complex property decisions about investments or sale of assets but is able to make day to day spending decisions, may be under a plenary property guardianship.
The importance of tailored and specific approaches to guardianship was recently reinforced in the decision of the Supreme Court of Nova Scotia in Webb v. Webb. In that case, which developed from a Charter challenge to the Incompetent Person’s Act, Justice Campbell commented that
The object of the Incompetent Persons Act is to protect people who are incapable “from infirmity of mind” from managing their own affairs. That protection is provided by the appointment of a guardian. That is a rational and reasonable way to help that person. The problem is that the legislation is overbroad. It goes too far.
Every person with “infirmity of mind” is not incapable of managing their own affairs to the same extent. There is a spectrum of adult “infirmity of mind” that would warrant guardianship in respect of some matters, but not in respect of others. Competency is not an all or nothing thing.
The Incompetent Persons Act takes an all or nothing approach. It allows for no nuance. It does not allow a court to tailor a guardianship order so that a person subject to that order can retain the ability to make decisions in respect of those areas in which they are capable.440
The concept of legal capacity, as understood in Ontario, is domain specific. A person may have legal capacity to make one type of decision and not another. It is one thing to make decisions about where to live or what type of activities one may wish to engage in, and another to make decisions about finances. Further, many individuals may have the ability to make day-to-day decisions in a particular domain, but may not have the ability to make complex or long-term decisions in that area. Making decisions about day-to-day spending requires quite a different skill set from, for example, managing a real estate transaction or making decisions about investments.
Reflecting this nuanced approach to legal capacity, the SDA makes provision for partial guardianships for personal care issues. A guardian may be appointed in relation to decisions about, for example, safety, while independent decision-making is preserved for decisions about nutrition, clothing and hygiene. On the other hand, within the domain of property, all guardianships are plenary. This is significant because most guardianships in operation in Ontario are for property: there are over 16,833 open property guardianships in Ontario, as compared to 1,838 personal guardianships.441
It has been hypothesized that the inflexibility and relative inaccessibility of external appointment processes contribute to a tendency for courts to award plenary guardianships. Professor Doug Surtees, in considering the empirical evidence related to guardianship reform in Saskatchewan, notes that despite the positive principles included in that jurisdiction’s 2001 reforms, including the presumption of capacity and a legislative preference for the least restrictive alternative, the overwhelming majority of guardianship orders continue to be virtual plenary orders. Surtees suggests that a lack of knowledge of the legislation on the part of the bench and bar may underlie the issue; as an alternative, applications for guardianship may be delayed too long, so that they are only brought at the point where plenary orders are in fact the least restrictive alternative.442
Addressing fluctuating capacity: Concerns have also been raised that it may be difficult for individuals, once guardianship has been imposed, to take the necessary steps to regain legally independent decision-making status. Legal capacity, by its nature, frequently fluctuates. Some people will develop greater decision-making abilities over time as they learn and acquire access to social resources, others will experience declines in their decision-making abilities, and others will cycle in and out of legal capacity. It is therefore important that processes be sufficiently responsive and flexible so that those who actually have legal capacity do not find themselves under substitute decision-making, and those who require assistance are able to access it in a timely manner.
Kerri Joffe and Edgar-André Montigny, in a paper prepared by ARCH Disability Law Centre for the LCO, emphasize the many barriers that individuals under guardianship may face when attempting to regain their legal ability to make decisions independently, particularly because all of the mechanisms currently available in the SDA are “passive”, meaning that they require the person who has been found legally incapable to understand and actively assert their rights, commenting that “Provisions that require an ‘incapable’ person to take legal action against a guardian privilege guardians and disadvantage ‘incapable’ persons attempting to protect their rights”.443
Statutory guardianship: Statutory guardianship processes were designed to be relatively simple and easy to access, compared to court-based processes. While the Capacity Assessment must be paid for, if the person assessed is found incapable, no further steps or expenses are required in order to create a guardianship.
However, this simplicity comes at a price. Statutory guardianship tightly ties together the assessment of capacity with a need for guardianship. Unlike the court-based process for the appointment of a guardian, physicians examining capacity to manage property under the MHA are not required (and nor are they in a position to) consider whether the individual’s needs could be met through a less restrictive course of action. As was noted above, Capacity Assessors under the SDA may prepare a “needs” statement where the assessment is being completed in the context of a summary disposition application for a court-appointed guardianship, but do not do so in the context of a statutory guardianship.444
Further, statutory guardianship results in automatic appointment of the PGT as guardian. Unless the individual has already completed a comprehensive power of attorney for property or has a guardian, the PGT will become the guardian: any family or friends must actively take steps to replace the PGT as guardian.
As a result, a finding of legal incapacity for property under section 16 of the SDA has extremely grave consequences for the autonomy of the individual.
Thus, statutory guardianship may be seen as inconsistent with some of the values that underlie the legislation as a whole. Despite the general intent to give preference as SDMs to family or other persons with intimate knowledge of the individual, statutory guardianship makes the PGT the guardian of first, not last, resort. The result of statutory guardianship, that the PGT is in most cases the guardian of first resort, rather than of last, also raises the question as to whether this is the best means of employing the expertise of the PGT, and of government resources in general.
Further, the automatic appointment of an SDM upon a finding of incapacity suggests that the incapacity itself is sufficient to justify the appointment of a guardian, regardless of whether the needs of the individual can be managed through other arrangements or supports, contradicting the value expressed in the Fram Report of avoiding unnecessary intervention. Considerable efforts have been made to ensure that Capacity Assessors, who make this life-altering determination, are trained, professional and adhere to clear standards, and that procedural rights are provided, particularly for patients examined under the MHA. However, it is nonetheless the case that a determination that is fundamental to individual rights is being made as a matter of professional judgement by a health care professional, rather than as a legal determination of rights.
This apparent disjunction between the general intent of the legislation and the use of statutory guardianship processes becomes more acute when it is remembered that this is the means through which the vast majority of those under guardianship in Ontario have entered into this status and that, as was noted above, persons under guardianship may find it difficult to access the necessary resources to challenge that status.
As well, should the alternatives to substitute decision-making outlined in Chapter 4, or the more limited forms of guardianship proposed later in this Chapter be implemented, it is difficult to see how an assessment of the potential application of these less restrictive alternatives could be integrated into the statutory guardianship. Opportunities to limit guardianship, and in particular, plenary guardianship, to cases of true necessity, would necessarily continue to be restricted in a system in which the vast majority of guardianships are created under the statutory process.
D. APPLYING THE FRAMEWORKS
Chapter 4 of this Report, dealing with alternatives to substitute decision-making, explores at length the relationship of the Framework principles to substitute decision- making. It is not necessary to repeat that analysis here, beyond noting that these issues are clearly closely tied to the Framework principles of promoting autonomy and independence, as well as of safety and security. The LCO believes that there are situations where substitute decision-making provides the most appropriate approach for allocating legal accountability for decision-making and ensuring meaningful safeguards against abuse of persons who are vulnerable due to deficits in their decision-making abilities. However, it is also widely understood that because substitute decision-making does have a profound impact on the autonomy of the persons on whom it is imposed (as well as potentially affecting achievement of the other principles, such as possibly diminishing the individual’s dignity or opportunity to participate in their community), significant efforts must be taken to ensure that it is only imposed with care, and in situations where no less intrusive means are available or appropriate.
It is therefore necessary that there be processes in place that allow for the careful weighing of considerations related to autonomy, security, and participation and inclusion in the particular circumstances of the individual. It is always true that the Framework principles apply not only to outcomes but also to processes, but because determinations related to substitute decision-making have such fundamental implications for individual achievement of the principles, it is particularly important that processes are designed to enable meaningful access by individuals and to ensure that meaningful consideration can be given to the rights of the individuals involved.
E. THE LCO’S APPROACH TO REFORM
As was discussed in Chapter 4, it is the LCO’s view that substitute decision-making is necessary for some individuals in some circumstances. However, it is also clear that substitute decision-making should be a last resort, after other alternatives for meeting the needs of the individual have been explored, and that it should be applied in the most limited fashion that is feasible in the circumstances.
The LCO further believes that substitute decision-making is best carried out, where possible, in the context of a trusting relationship where the values and wishes of the person affected can be ascertained. Where no such relationships exist, the PGT may provide specialized, skilled and trustworthy professional decision-making where necessary. In addition to other benefits, this approach to guardianship is also a more effective use of resources at all levels.
Throughout this Final Report, the LCO has considered the general goal of reducing unnecessary intervention in developing its recommendations. LCO recommendations regarding alternatives to substitute decision-making, provision of education and information, and increasing the accessibility of adjudication through an expanded role for an administrative tribunal all are intended to contribute to reducing unnecessary intervention and promoting the autonomy of persons affected by this area of the law. The recommendations in this Chapter are only one element of the LCO’s overall approach to promoting these goals.
As well, in designing these recommendations, the LCO has considered how they fit into the overall approach to reform in this project – that is, with the recommendations that the LCO has made in other Chapters regarding changes to Ontario’s legal capacity, decision-making and guardianship system.
The LCO is recommending four key initiatives that would more closely target substitute decision-making to need:
• promoting more consistent consideration of alternatives to guardianship;
• re-examining the use of statutory guardianship as a means of external appointments;
• promoting greater opportunities for the use of partial or limited appointments; and
• promoting systematic consideration of time limited appointments and of mandated reviews of the appropriateness of external appointments of substitute decision-makers.
Feedback on the Interim Report indicated broad support for these approaches.
1. Exploring Alternatives to the Appointment of a Substitute Decision-maker
During the LCO’s consultations, it was repeatedly pointed out that there are many individuals who might be found to lack legal capacity, but who nevertheless do not require guardianship, either because the nature of the decisions they make, or because they are receiving effective informal supports and services, and therefore do not need a formal appointment of a substitute decision-maker. For example, many people highlighted the important role that Adult Protective Services Workers (APSWs) play in the lives of many people, and how those supports reduce the need for more formal interventions. In a focus group with professionals in the development services sector, participants emphasized that they make it a priority to find ways to support individuals in ways that do not formally diminish their autonomy and independence: while the informal nature of these connections and supports are not always well recognized, they are crucial.
In Chapter 4 of this Final Report, the LCO proposed the creation of formal alternatives to guardianship, in the form of support authorizations and network decision-making. This Chapter outlines a number of recommendations for more limited forms of guardianship, including guardianships that are reviewable or time limited, limited property guardianships, and the appointment of representatives for single decisions. The implementation of these recommendations would bring into greater prominence and importance the existing provisions of the SDA with respect to consideration of least restrictive alternatives. Without effective mechanisms to ensure that these alternatives are carefully considered prior to the appointment of a guardian, their implementation may be limited and individuals may continue to experience unnecessary or over-broad intervention.
The Courts, in considering the application of the “least restrictive alternative” provisions of the SDA, have looked to informal supports and services in determining whether guardianship is appropriate. In its important decision in Koch (Re), the Court recognized these types of supports, finding the appellant capable with respect to property management. The Court commented 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.445
In a similar vein, in Deschamps v. Deschamps, the Court declined to make a finding of lack of capacity to manage property with respect to Mr. Deschamps, because he could make decisions with appropriate assistance from his spouse or his appointed attorneys.446 The Court quoted the report of Mr. Deschamps’ Capacity Assessor as follows:
I am of the opinion that Mr. Deschamps is incapable of managing his finances. However, given Mr. Deschamps’ specific circumstances, I do question the need for a substitute decision maker. There appears to be a less restrictive way of handling his financial affairs, either by way of daily help from his wife (whom he clearly married of his own free will) or by asking his appointed attorneys (which he is competent to choose) to help. In this case the appointment of a guardian would appear to be far outweighed by the adverse consequences of such an action in terms of quality of life or psychological well-being.447
However, it has been noted that it is relatively rare for there to be any person in the court process for guardianship who has an interest in raising less restrictive alternatives for the individual or has the knowledge and ability to identify such alternatives. As was noted in Chapter 7, Section 3 Counsel under the SDA can play a vital role in promoting consideration of the wishes and needs of individuals who are the subject of guardianship applications, although as was discussed in that Chapter, there are limitations inherent in their role.
The Coalition on Alternatives to Guardianship, in their 2014 Brief to the LCO, commented that the current system is heavily focussed on assessments of capacity. This is particularly true for the statutory guardianship process, even though the Guidelines for Conducting Assessments of Capacity and Assessor training encourage an exploration of less restrictive alternatives: “Assessors may not be aware of all of the available alternatives in a specific community and they are not in a position, nor do they have the legal mandate, to determine which, if any, might be feasible in a given situation”.448 In response to this concern, the Coalition recommended an extensive system of Alternative Course of Action Assessors. These “ACA Assessors” would operate in a manner parallel to the current system of Capacity Assessors, with a set of requirements for training and education, and a roster of approved ACA Assessors maintained by government. These ACA Assessments would be engaged, in parallel to Capacity Assessments, at multiple points under both the SDA and the HCCA, including prior to engaging the HCCA hierarchy, during “serious adverse effects” investigations by the PGT, and whenever guardianship is in contemplation.449
The LCO believes that the goal underlying the Coalition Brief, of providing a meaningful opportunity for consideration of alternatives prior to creation of a guardianship, is valid and shares the concern that the current system does not provide sufficient mechanisms to allow for such a consideration. However, the LCO is concerned that the Coalition’s proposal for an extensive new system of ACA Assessors is likely to be costly and cumbersome, and contribute to the complexity and burdensomeness of a system that the LCO has heard is already quite challenging for individuals to navigate. It is particularly difficult to see how the proposed system of ACA Assessors could play a meaningful role in questions of consent to treatment, given the sheer number of such determinations made every day in the province and the need for flexibility and efficiency in the provision of treatment.
A simple alternative may be to strengthen the existing “least restrictive alternative” provisions by requiring the adjudicator to explicitly address the issue in the decision regarding the appointment, or to require parties to the application to address the issue. However, given that the parties to the application will often not have either the interest or the knowledge to address the issue, and the challenges that an adjudicator faces in addressing the issue in a vacuum of evidence, the LCO believes that something more is required.
The Court of Protection (CoP) of England and Wales has the power to call for a report to be made to it by the Public Guardian or a Court of Protection Visitor, or may require a local authority or National Health Service body to arrange for a report to be made, on such matters related to the individual who is the subject of an application.450 Under the CoP’s Rules of Procedure, the creator of such a report must undertake the following:
• contact or seek to interview such persons as he thinks appropriate or as the court directs;
• to the extent that it is practicable and appropriate to do so, ascertain what the individual’s wishes and feelings are, and the beliefs and values that would be likely to influence the person if she or he had the capacity to make a decision in relation to the matter to which the application relates;
• describe the person’s circumstances; and
• address such other matters as are required in a practice direction or as the court may direct.451
The Victorian Civil and Administrative Tribunal (VCAT) has similar powers with respect to that state’s Public Advocate Office. The Public Advocate’s Office has a broad array of powers which include advocacy and investigations into complaints of abuse or exploitation. In complicated matters, VCAT may request the Public Advocate to conduct a formal investigation into the matter prior to a hearing.452 This might include investigations into less restrictive alternatives, or on issues related to consent for special procedures. In 2013-2014, the Public Advocate conducted 362 investigations, of varying length and depth, at the request of VCAT. 453
• VCAT is described more fully in the Discussion Paper, Part IV, Ch. II, and the Public Advocates Office in the Discussion Paper, Part IV, III, D. 1.
A somewhat different approach is taken in Court Visitor programs operated in several American states. Rather than the adjudicator requesting reports or investigations from other bodies with relevant expertise, in these programs the courts oversee their own specialized Court Visitor programs for their guardianship cases. Court Visitors may be directed by the court to visit a person who is the subject of a guardianship-related application, to gather information on that person’s circumstances. Utah’s Court Visitor Program is described as follows:
Volunteers are needed to serve as court visitors: to observe and report about the circumstances of incapacitated adults…. A judge sometimes needs a visitor to gather evidence to help the judge:
• Decide whether the protected person may be excused from court hearings.
• Decide the nature and extent of the protected person’s incapacity.
• Decide the nature and extent of the guardian’s authority.
• Ensure that the court’s orders are being followed.
The judge may appoint a visitor to inquire about and observe a protected person’s circumstances to provide a more complete and nuanced picture of that person’s life.454
Court Visitor programs may be operated on a relatively informal volunteer basis, or may be compensated and require Visitors to meet a set of educational and training requirements, and to make formal written Reports to the court.455
Within the existing system in which the Superior Court of Justice makes determinations regarding applications for guardianship, it would not be practical to institute a Court Visitor program. If the government implements the LCO’s recommendations regarding a tribunal with broad jurisdiction over matters related to legal capacity, consent and substitute decision-making, as detailed in Chapter 7, the creation of some type of Visitor program may be a feasible means of obtaining information about alternatives to guardianship. The LCO cautions that evaluations of the American experience have indicated that volunteer programs, while often embraced with enthusiasm as a cost-effective means of meeting needs in this area, have not generally been found to fulfil the hopes vested in them, as they tend to be resource intensive to develop and oversee.456 Because of the challenges in identifying and assessing less restrictive alternatives, a volunteer program is not likely to be effective in this context: to provide meaningful information to an adjudicator, a Visitor program would have to be expert, specialized and professional.
As another option, in the Ontario context, there are examples of tribunals with the power to order investigations or make enquiries. For example, the Human Rights Tribunal of Ontario (HRTO) has the power, at the request to a party to an application, to appoint a person to conduct an inquiry if the HRTO is satisfied that an enquiry is required to obtain evidence, that the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application and it is appropriate to do so in the circumstances. At the conclusion of the enquiry, the person appointed must provide the HRTO and the parties with a copy of a report detailing the results.
The Human Rights Code gives the person conducting the inquiry broad investigative powers.457 The Landlord and Tenant Board has the power to “conduct any inquiry it considers necessary or authorize an employee in the Board to do so”, “request a provincial inspector or an employee in the Board to conduct any inspection it considers necessary”, or “permit or direct a party to file additional evidence with the Board which the Board considers necessary to make its decision”.458
The LCO believes that providing adjudicators with a mechanism to gather additional information in selected appropriate cases, with a view to ensuring that the question of “least restrictive alternative” has been meaningfully considered, will contribute towards the goal of reducing inappropriate or unnecessary intervention.
It is important to acknowledge that the gathering of such information is not an easy task. Part of the context of legal capacity, decision-making and guardianship law, as has been acknowledged throughout this Report, is the pressure on services and supports for groups whose members are most often found to lack or potentially lack legal capacity. Identifying alternatives may require not only knowledge of the law and an ability to navigate complicated service and support systems, but also considerable creativity, and a thorough understanding of the circumstances of the individual in question. Such reports will not be of use in all, or anything close to all, cases. Nevertheless, it is the LCO’s view that as the Court has a duty to satisfy itself on the issue of the less restrictive alternatives, there must be some meaningful mechanism through which such an enquiry may be made.
The LCO proposed in the Interim Report to make use of existing expertise by enabling adjudicators to seek reports from existing expert bodies and providing statutory authority to these bodies to prepare such reports. In drafting legislation to this effect, it would be important to consider the kind of rights to information that would be appropriate to allocate to those undertaking such investigations: without some statutory rights to gather information it would be difficult to conduct meaningful investigations into the circumstances of individuals, but due attention must also be paid to issues of scope and privacy. As well, attention would be required to allocation of the costs of such reports.
Another option would be to look to the experience of the courts with Gladue Reports. Gladue Reports have their origin in a decision of the Supreme Court of Canada interpreting s. 718.2(e) of the Criminal Code. The decision in R. v. Gladue459 considered the systemic problem of over-representation of Aboriginal individuals in the Canadian criminal justice system, and required sentencing judges, in cases involving Aboriginal offenders, to consider the particular systemic factors that may have resulted in the engagement of that individual with the criminal justice system and to consider all possible alternatives to imprisonment. Gladue has been implemented in a range of ways in the provinces and territories:460 Gladue Reports are one approach. These Reports are prepared by “Gladue Caseworkers”, usually in the context of sentencing or bail hearing, at the request of the judge, defense counsel, or Crown Attorney. These reports contain information about the factors that have brought the individual before the Court and recommendations about community based rehabilitation options.461 In Ontario, Legal Aid Ontario provides funding for the creation of Gladue Reports, for example by Aboriginal Legal Services Toronto and Nishnawbe-Aski Legal Services Corporation.462
This draft recommendation received some attention in the feedback on the Interim Report. The Advocacy Centre for the Elderly (ACE) opposed this proposal, seeing it as supplanting the adjudicator’s own expertise in determining whether a less restrictive alternative exists. ACE suggested that such reports could be requested by the parties and presented as evidence in support of a position, and could then be challenged by opposing counsel. While the Mental Health Legal Committee (MHLC) supported the recommendation, it also noted this concern.
On a similar note, while supporting this recommendation as a means of reducing the number of court-appointed guardianships – and indeed, suggesting that such reports be mandatory in all guardianship applications – ARCH Disability Law Centre raised concerns about adjudicators inappropriately relying on such reports, and suggested that safeguards be instituted to support adjudicators in determining how much weight to give to such reports, such as requiring adjudicators to assess reports for conflict of interest. ARCH suggested that where professionals undertake such reports, such professionals must be appropriately trained in the area, including on less restrictive alternatives. ARCH also supported providing individuals with the opportunity to identify individuals who might undertake such report, and that it should not be necessary for the reports to be from professionals: persons who know the individual in question, such as family or friends, might in ARCH’s view appropriately prepare such reports.
Such concerns point to questions as to how such reports might fit into the adversarial process. This proposal might be understood within the context of contemporary adoption of active adjudication approaches, which occupy a middle ground between pure adversarial and inquisitorial approaches. Active adjudication has often been adopted by tribunals, including as a means of reducing power imbalances where there are vulnerable litigants.463 It should be emphasized that active adjudication is not intended to supplant the role of counsel, particularly counsel for the person who may lack legal capacity.
One of the merits of active adjudication, is, in the words of one commentator, the ability to reduce “the power of the parties to restrict the [decision-maker] to consideration of only such available evidence as they are willing to have taken into account – which is, in truth, little less than the power to force the court into an incorrect decision”.464
While there may be concerns that these more interventionist approaches to adjudication may compromise procedural fairness, a review of the operation of the Human Rights Tribunal of Ontario saw that Tribunal’s use of active adjudication in appropriate circumstances as meritorious, able to respect fairness, and worthy of further pursuit.465 In the context of the Ontario Review Board, the Ontario Court of Appeal ruled that it had a “duty to search out” and consider evidence against imposition of restrictions on persons found Not Criminally Responsible.466
On balance, the LCO believes that with appropriate safeguards to protect fairness, enabling adjudicators to seek further information about the availability and appropriateness of less restrictive alternatives would strengthen the implementation of the policy priorities underlying the SDA.
THE LCO RECOMMENDS:
39: The Government of Ontario promote effective consideration of the“least restrictive alternatives” under the Substitute Decisions Act, 1992 by giving adjudicators who are considering the appointment of a guardian for matters related to property or personal care the authority to:
a) request submissions from any party regarding the least restrictive alternative;
b) request, with appropriate processes and safeguards, a report from a relevant expert or organization, such as the Public Guardian and Trustee, Adult Protective Services Worker, Developmental Services staff or other body, on the circumstances of the individual in question, including
i. the nature of their needs for decision-making,
ii. the supports already available to them, and
iii. whether there are additional supports that could be made available to them that would obviate the need for guardianship,
and provide these experts or institutions with appropriate powers and responsibilities for the preparation of such reports.
2. Eliminating or Reducing the Use of Statutory Guardianship
As was described earlier in this Chapter, in Ontario law, guardians may be appointed either through a court process, or through an administrative “statutory guardianship” process in which a finding of incapacity by a Capacity Assessor leads to guardianship by the PGT for individuals who do not already have a substitute decision-maker in place. A significant majority of guardianships in Ontario are created through the statutory guardianship process.
The statutory guardianship process may be understood as having a number of benefits.
1. As an administrative process, it is intended to be relatively simple compared to a court appointment process.
2. It can be a quick way to create a guardianship, something which can be particularly valuable in urgent situations, such as where there is a risk of dispersal of assets without immediate action. This is understood to be particularly important for statutory guardianships created through the MHA processes, as a means to prevent significant disadvantages accruing to patients (such as loss of an apartment due to non-payment of rent, for example), during their temporary period of legal incapacity.
3. Because Ontario’s statutory guardianship processes automatically make the PGT guardian of property upon a finding of incapacity, this provides a very simple means for individuals without family or friends who are able or willing to act for them to access the services of the PGT as a substitute decision-maker.
However, the statutory guardianship process may not achieve all of the benefits intended, and may have some accompanying disadvantages.
First, the automatic appointment of the PGT may discourage family from taking on the role of guardian. Family members who do wish to act for the individual must go through the process of applying to be named as a replacement guardian: something which several families who spoke to the LCO found objectionable in principle. The LCO has also heard from some individuals and from some trusts and estates lawyers that the replacement application process may be lengthy and confusing. The PGT may therefore find itself with a larger caseload than is truly necessary or appropriate: it becomes in many cases a guardian of first, rather than last resort. This situation conflicts with the assumption underlying Ontario’s current legislative framework that substitute decision-making is best provided by those who have a close relationship with the individual for whom they are making decisions, and who are thereby able to effectively encourage the individual’s participation in decision-making and to take into account her or his values, preferences and wishes. It is also, arguably, an ineffective use of the resources and expertise of the PGT.
Secondly, statutory guardianship by its nature conflates a lack of legal capacity with a need for guardianship. A finding of legal incapacity automatically results in the appointment of a guardian. This sits uneasily with the policy goals that underlie the Substitute Decisions Act, with the nuanced approach to legal capacity advanced in this Report, and with the emphasis in the Convention on the Rights of Persons with Disabilities on supporting individuals to exercise legal capacity.
Thirdly, statutory guardianship does not allow for tailoring of the scope or duration of guardianship to the needs of individuals. The recent Nova Scotia case of Webb v Webb, described earlier in this Chapter, emphasizes the vital significance of tailored and nuanced approaches in ensuring that guardianship systems complies with Charter guarantees. While the Nova Scotia legislation differs in several respects from Ontario’s, policy-makers may wish to consider the implications of the Webb v Webb decision for the statutory guardianship system.
The recommendations in this Chapter focus on reducing the scope or duration of guardianship, to preserve to the greatest extent appropriate the autonomy of individuals. However, these types of recommendations are very difficult to integrate with the statutory guardianship process, which is designed for administrative simplicity, and in which the key determinant is a professional judgment as to the individual’s functional abilities, rather than a weighing of needs and options in light of available supports and services. Considerable effort has been expended to ensure the professional quality of Capacity Assessments under the SDA; however, Capacity Assessors are not intended to perform such a weighing of options, which is more appropriate to an adjudicative approach.
In short, the type of reforms recommended in this Chapter and in Chapter 4 have limited impact in a system in which three-quarters of all guardianships result from a process in which a finding of incapacity almost automatically results in guardianship by (at least initially) the PGT. Statutory guardianship provides no readily identifiable mechanism for consideration of least restrictive alternatives, and assigns the PGT to a role far beyond a “last resort”. In these ways, statutory guardianship may result in excessive intervention.
The LCO notes that many other jurisdictions have only limited “statutory guardianship”-type processes or none at all. For example in its 2009 reforms, Alberta ended its analogous process, so that all applications for guardianship are processed through the courts.467 Issues related to accessibility to the process were addressed through the Review Officer system, as well as by a number of initiatives to create plain language forms and information.
• Alberta’s Review Officer system is described in Part Four Ch.III.D of the Discussion Paper.
In the United States, California does not have an administrative process for creating guardianships. It does have an urgent process whereby the Public Guardian must apply to be the conservator of the person or of the estate or both, where the person needs a conservator, no one else is qualified and willing to act in the best interests of the person, and there is “an imminent threat to the person’s health or safety or the person’s estate”.468 That is, at least some of the advantages of statutory guardianship may be designed into an adjudication-based system for external appointments.
In a system in which applications to the court for guardianship, even when uncontested, generally cost thousands of dollars, an administrative system for guardianship is perhaps unavoidable. However, should jurisdiction over external appointments be transferred from the Superior Court of Justice to a tribunal, as the LCO recommended in Chapter 7, this would make applications for external appointments less intimidating and costly, and more accessible. In such circumstances, the question of statutory guardianship can be considered afresh. As well, should such a tribunal retain the CCB’s focus on and strength in rapid decision-making, this would reduce concerns that statutory guardianship may be necessary to ensure timely- decision-making in urgent matters. Depending on how such a tribunal would be constituted, it may be necessary to give consideration to the kind of supports, Legal Aid or otherwise, that would be required to ensure that low-income individuals had meaningful access to appointments or termination of appointments as necessary.
Resources which are currently expended in having the PGT acting either temporarily or over the longer term for individuals who have other appropriate options, and in having the PGT assess replacement applications can be better allocated to providing a transparent and accessible hearing process for external guardianship appointments through the tribunal system.
It is the LCO’s considered view that a guardianship system with the following characteristics is not only more truly consonant with the Framework principles and the CRPD, but also will result in a more effective allocation of limited government resources:
• the PGT is truly a guardian of last resort, within the parameters described in Chapter 9;
• an adjudicator, rather than the PGT, is responsible for determining whether a family member is a suitable guardian; and
• there is an opportunity to tailor the guardianship order to the needs of the individual, and to consider whether a less restrictive alternative than guardianship is available to individuals who lack legal capacity.
Resources which are currently expended in having the PGT acting either temporarily or over the longer term for individuals who have other appropriate options, and in having the PGT assess replacement applications can be better allocated to providing a transparent and accessible hearing process for external guardianship appointments through the tribunal system.
In such a system, a finding of lack of legal capacity to manage property by either a designated Capacity Assessor under the SDA or an examining physician under Part III of the MHA would lead, not to the automatic appointment of the PGT as guardian, but to a deemed application for guardianship to the tribunal. Careful attention to notice requirements would be necessary in designing such a process: the notice requirements for applications related to guardianship currently found under s. 69 of the SDA provide a useful starting point.
This proposal received widespread support in responses to the LCO’s Interim Report, with the exception of the Advocacy Centre for the Elderly (ACE), which disagreed strongly: it was the view of ACE that “It is vital to retain the automatic triggering of guardianship to a neutral organization such as the PGT to ensure that the incapable person’s property is managed in a timely and safe manner”. ACE recommended instead that the replacement guardianship process be reviewed and streamlined, and that the rights advice requirements for Capacity Assessors be strengthened.
Upon consideration, it is the view of the LCO that the advantages of the statutory guardianship process in terms of rapidity and administrative simplicity do not outweigh its inherent limitations in process protections. Careful design of an accessible and flexible adjudicative appointment process can mitigate concerns regarding timeliness and safety.
The design of these processes will have to consider two common scenarios (which in some situations may co-exist).
First, there will always be some significant number of cases in which rapid appointment of a guardian is necessary in order to end or prevent abuse, secure assets, or undertake urgent decisions. In some cases, potential guardians will be available, but the necessary scrutiny may cause too much delay. In other cases, no potential guardians will be readily obvious, and it will be necessary to attempt to identify appropriate family members or friends prior to any decision to permanently appoint the PGT as guardian. In such situations, processes for urgent applications resulting in temporary appointments may be helpful.
The Mental Health Legal Committee made the interesting suggestion that the PGT be a mandatory party to a guardianship application triggered by an incapacity finding that would otherwise have resulted in statutory guardianship. Such an application should be returnable on a short time frame, and the initial appearance should provide an opportunity to grant the PGT temporary powers to address any urgent concerns if no one else is available at that time.
The state of California provides another model. This state does not have processes similar to statutory guardianship: all appointments of guardians are made by courts. California does have, however, an urgent process to allow the Public Guardian to step in and protect property while it searches for appropriate agents or family members to manage the property. The process can be commenced by the issuance of a signed declaration by two peace officers to the Public Guardian. This declaration allows the Public Guardian discretion to take control or immediate possession of any real or personal property belonging to the person. Peace officers may issue such declarations where they reasonably believe that the person is substantially unable to manage their financial resources or resist fraud or undue influence; has consulted with an individual who is qualified to perform a mental status examination, and reasonably believes that as a result of the inability there is a significant danger that the person will lose all or a portion of the property, or a crime is being committed against the person. These declarations are temporary, but can be renewed. If an appropriate substitute decision-maker cannot be identified, the Public Guardian must apply for conservatorship.469 Some form of such a process adapted to Ontario’s needs might be used to allow the PGT to intervene where necessary while not accepting the role of guardianship, creating an alternative to the statutory guardianship system.
Secondly, it would be necessary to give thought to the processes by which the PGT would be appointed as a guardian in this new system. In Chapter 9, the LCO has provided an outline of a more focused mandate for the PGT’s substitute decision- making role, one centred on providing its expert, professional and trustworthy services to those for whom the particular attributes of the PGT make it the best option. Currently, in situations where family is unavailable, unwilling or inappropriate to act, a guardianship by the PGT may be reasonably easily effected by organizing a Capacity Assessment resulting in a statutory guardianship. As the Table earlier in this Chapter makes clear, the vast majority of guardianships by the PGT are created in this way. If statutory guardianship was eliminated, it would be less obvious how situations where an individual has no one else to act would be effectively brought to the PGT’s attention.
Currently, outside the statutory guardianship process, the PGT can be appointed only in the following circumstances:
• as a temporary guardian resulting from an “serious adverse effects” investigation;470 or
• when an application for guardianship is made to the Court proposing the PGT as guardian of property or personal care; it is accompanied by the written consent of the PGT to act as guardian; and there is no other suitable person who is available and willing to be appointed.471
These are cumbersome processes. It may be necessary for the PGT to institute an administrative process through which the PGT’s services as a guardian of last resort could be sought. Alberta’s PGT has developed such a process,472 which could provide a model which could be modified to Ontario’s needs.
Should government decide not to eliminate statutory guardianship, there may be some adjustments that can be made to enable the exploration of alternatives prior to a statutory guardianship. The adoption of such adjustments would have to be carefully weighed, however: the core benefit of statutory guardianship is its simplicity, so that burdening the process with additional requirements could undermine the very rationale for its existence.
For example, Saskatchewan has a process analogous to statutory guardianship; however, the PGT does not automatically become a property guardian after a certificate of incapacity is issued. Rather, to become the property guardian, the PGT must sign under seal an acknowledgment to act.473 The PGT must sign the acknowledgement agreeing to act if (i) it believes that the adult’s estate needs to be administered and (ii) no one has applied or appears to be interested in applying to be the property guardian. The PGT may also sign the acknowledgment if there is a serious concern of financial abuse or a dispute among family members.474
Allowing the PGT some discretion as to when to take up a statutory guardianship may allow time for family members to come forward or for alternatives to guardianship to be explored: it would, however, require the PGT to develop additional processes for exercising such discretion. It would be important to consider whether requiring the PGT to take additional steps prior to commencing its role as a statutory guardian could increase the burden on that organization in a manner disproportionate to any reduction in its workload. Further, the PGT currently performs an important role in scrutinizing potential“replacement guardians”, for example by reviewing management plans. Any system for appointing guardians must include some scrutiny of potential guardians: if, in a system modelled on Saskatchewan’s, the PGT defers taking up an appointment, it is not clear where the responsibility for evaluating the potential guardian would lie. If it remained with the PGT, there may be little practical difference between this and the current“replacement guardian” system.
It was also suggested that the system for appointing substitute decision-makers under the Health Care Consent Act, 1996, in which a determination of incapacity results in an automatic appointment from a hierarchical list, be applied to the appointment of guardians for property or personal care.
The LCO does not find this to be an appealing proposal. The very simple and highly informal process under the HCCA works well in that context, where appointments are generally for a single decision and decisions must often be made on an urgent basis. As well, decisions under the HCCA are in most cases ultimately implemented by the health practitioner proposing the treatment: this builds in a certain amount of oversight. Guardians of property and personal care, however, are appointed to make many decisions for an indefinite period of time. These appointments provide the guardians with easy access to the individual’s assets or living arrangements, thus placing the individuals in a very vulnerable position. There is little oversight once a guardian has been appointed, and the harms that may be caused by an incompetent or abusive guardian may be difficult or often impossible to remedy. As well, as has been discussed earlier in this Chapter, it is no
easy process for an individual under guardianship to challenge the necessity for or choice of a guardian once appointed. It is for this reason that Ontario’s current system requires potential guardians to develop thorough management plans, and provides for scrutiny either through the PGT’s replacement process or the court appointment process. Certainly, this approach would not facilitate the consideration of less restrictive alternatives, one of the core rationales for eliminating statutory guardianship. The LCO therefore does not recommend that this approach be pursued.
THE LCO RECOMMENDS:
40: In order to promote transparent and consistent consideration of less restrictive alternatives in the context of guardianship appointments, and to enable the Public Guardian and Trustee to focus its mandate,
a) the Government of Ontario conduct further research and consultations towards replacing statutory guardianship with an accessible adjudicative process, in which assessments of capacity under the Mental Health Act and Substitute Decisions Act, 1992 result in deemed applications for guardianship rather than automatic appointments of a guardian.
b in designing this adjudicative process, consideration be given to:
i. ensuring that applications are heard in a timely fashion;
ii. providing a mechanism for urgent applications in appropriate cases;
iii. providing the adjudicators with appropriate powers to gather the requisite information to make a determination as to the appropriateness of guardianship and the choice of a guardian; and
iv. providing a mechanism for identifying situations where the Public Guardian and Trustee should exercise its mandate as an expert substitute decision-maker.
3. Time Limits and Mandated Reviews of External Appointments
Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly requires that measures related to legal capacity “apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body”. This is in keeping with the understanding of substitute decision-making as a significant intrusion on the autonomy of the individual, which should be employed only when and as necessary.
Ontario’s statutory provisions regarding time limits and reviews for external appointments are somewhat limited. The SDA permits the court to impose time limitations when it appoints guardians of the person or of property, but it does not create a preference or presumption to do so. Nor does the SDA require regular reviews of appointments. By way of contrast, temporary guardianships arising from “serious adverse effects” investigations are specifically limited to 90 days (although the court has the power to extend the term, as well as reducing or terminating it).
Reassessments of capacity are essential to the review of guardianship appointments. Section 20.1 of the SDA requires a statutory guardian of property, upon request by the incapable person, to assist in arranging a reassessment. The section includes time limitations to preclude over-use of this provision.475 However, the SDA does not include parallel provisions for court-appointed guardians, perhaps based on the more thorough scrutiny involved in court appointments and the ability of the court to impose time limitations.
Compared to Ontario, some other jurisdictions have stronger measures to review external appointments of SDMs. In the Australian state of Victoria, orders for guardianship, whether personal or property, by the Victorian Civil and Administrative Tribunal (VCAT) are subject to regular re-assessment. Under the legislation, a reassessment must occur within 12 months after the VCAT makes an order, and at least once within each three year period after an order is made, unless the VCAT orders otherwise. Upon reassessment, the VCAT has the power to continue, revoke, vary or replace the order, as it finds appropriate.476 In practice, VCAT often orders reassessments of personal guardianship orders every 12 months, and of property administration orders every three years. The VCAT also has the power to issue a self- executing order that expires after a designated period or event, unless an application is made to extend the order. These are more common for personal than for financial appointments.477
The province of Alberta has included in the Adult Guardianship and Trusteeship Act less stringent requirements for review: where the court appoints a guardian (who may deal only with personal matters) or trustee (who deals with property matters), if the capacity assessment report indicated a likelihood of improvement in capacity, the order must include a date for application for a review; if the capacity assessment report does not so indicate, the order may include a date for application for a review.478 Saskatchewan takes a somewhat different approach towards the same end: where the court makes an order, it must determine whether it is in the best interests of the adult to require a review of the order and if a review is required, shall specify the period within which the review is to take place.479
ARCH Disability Law Centre recommends that all substitute decision-making arrangements, public and private, be time-limited, with provisions for review and potential renewal upon expiry of the term of the appointment.480
Consideration should be given to making all substitute decision-making arrangements in Ontario limited in time. Upon the expiration of the appointment, the decision-maker could seek a renewal of the arrangement. Such renewal would be subject to a review process, whereby the ‘incapable’ person’s circumstances would be reconsidered. The substitute decision-making arrangement could be modified to enhance or reduce the decision-maker’s powers, depending on the ‘incapable’ person’s circumstances. The review process would provide an opportunity for individuals to challenge their ‘incapable’ status, seek to terminate the arrangement, or raise concerns about their decision-makers. Were such reviews to be instituted, consideration would have to be given to what body would oversee and administer the process. 481
As well, ARCH suggested that all persons subject to substitute decision-making be notified of a right to have their capacity reassessed on a regular basis and of the existence of public funds to cover the costs for those who cannot afford an assessment, and that wherever the court orders a substitute decision-making arrangement, it must require the decision-maker to offer or arrange a capacity assessment at regular intervals.482
Under the rights-based principled approach to legal capacity, the need for a substitute decision-maker should be subject to regular review by a competent, independent and impartial public authority or statutory body. This is important in order to ensure that substitute decision-making arrangements do not last longer than necessary, and to provide ‘incapable’ persons with opportunities to reassert their right to legal capacity. Therefore, in Ontario’s new legal capacity regime, persons subject to substitute decision-making arrangements must be notified of their right to have their capacity reassessed, and of the existence of public funds for those who are impecunious. Where a court orders a substitute decision-making arrangement, the order must require the decision-maker to offer and/or arrange for a capacity assessment at specified intervals of time. 483
The LCO agrees that Ontario’s legislation needs stronger provisions governing the review of external appointments. Such provisions would provide more appropriate legal protections for individuals. They would also be more consistent with the LCO Framework principles, the language of the CRPD and the underlying values of the current legislative scheme.
It is important to note that the LCO does not believe these provisions would be transferrable to POAs. All POAs for personal care, and many POAs for property are only legally effective during periods of incapacity, so that the appropriate mechanism for reviewing the use of POAs for personal care is reassessment of capacity. As well, the private nature of these instruments is not easily compatible with a public review process.
Nor does the LCO believe that it would be practical to require a regular review of every appointment of a guardian. This would result in a very large volume of cases, significant numbers of which are unlikely to demonstrate substantial changes in circumstances sufficient to require a change in appointment status.
In general, the LCO believes that the Alberta approach is the most practical and cost- effective alternative. This would require the courts to turn their minds to issues of review at the time of appointment. However, the Albertan focus of the analysis on changes to legal capacity excludes the possibility that a person who lacks legal capacity may nonetheless develop supports or otherwise enter into a situation where guardianship is no longer necessary. The LCO therefore supports a somewhat broader approach than Alberta’s to review, one which is more compatible with the existing SDA language related both to the need for decision-making and the “least restrictive alternative”.
The LCO’s draft recommendation to this effect in the Interim Report received general support.
The LCO further believes that guardians could be required to submit on a regular basis an affidavit to the effect that there have been no changes in the legal capacity of the individual, the need for decision-making or the availability of a less restrictive alternative. This would require the guardian to regularly turn her or his mind to the status of the person under guardianship, and could be effectively paired with a duty for the guardian, should he or she have reason to believe that the individual has regained legal capacity, to assist the person to terminate the guardianship order.
Accompanying the requirement of guardian submission of affidavits, the LCO believes the requirements for re-assessments should be consistent between guardians appointed through the statutory guardianship process and those appointed by adjudicators. All guardians should be required to assist with arranging reassessments of capacity, within reasonable time frames. Because it will most frequently be the case that the guardian has control over the resources of the person affected, the practical assistance of the guardian will often be indispensable in effecting a reassessment.
Without such assistance, an effort to regain independent status may be practically inaccessible for many individuals.
These latter two proposals received support from all those commenting on them in response to the Interim Report.
THE LCO RECOMMENDS:
41: The Government of Ontario
While the SDA permits the Court, in appointing guardians of property, to impose such conditions as it deems appropriate, there is not the same strong legislative language directing the consideration of and preference for partial guardianships for property.
a) amend the Substitute Decisions Act, 1992 to require an adjudicator, when appointing a guardian either of the person or of property, to make the appointment:
i. for a limited time,
ii. subject to a review at a designated time, or
iii. subject to a requirement for the guardian at speciﬁed intervals to submit an aﬃdavit with particulars to all parties, indicating that the individual has not regained legal capacity, that the need for decision- making remains, and that there are no less restrictive alternatives available,
unless the adjudicator believes that the circumstances warrant an unlimited appointment; and
b) provide adjudicators with the authority necessary to enable the necessary oversight.
42: The Government of Ontario amend the Substitute Decisions Act, 1992 to require all guardians, upon request by the individual, to assist with the arrangement of assessments of capacity, no more frequently than every six months.
43: The Government of Ontario amend the Substitute Decisions Act, 1992 to require guardians, should they have reason to believe that the individual has regained legal capacity, to assist the individual to have his or her guardianship order terminated.
4. Greater Opportunity For and Use of Limited Appointments
As was described above, Ontario’s approach to decision-making is domain-specific. It clearly distinguishes between decisions for property and personal care, and as noted above, for court-appointed guardians of the person, there is a strong legislative preference for partial guardianships. While the SDA permits the Court, in appointing guardians of property, to impose such conditions as it deems appropriate, there is not the same strong legislative language directing the consideration of and preference for partial guardianships for property. Nor does the legislation specifically address the possibility of partial guardianships for statutory guardians of property.
Some jurisdictions provide explicitly for partial guardianships for property matters. In Alberta, when the court addresses trusteeships for property matters, the court may provide that the order applies “only to property or financial matters specified in the order”.484
Stronger provisions were recommended by the Victorian Law Reform Commission, in its review of that Australian state’s capacity and guardianship laws. It recommended that for both personal and financial matters, a non-exhaustive list of types of decisions be created. In particular, it suggested a very specific list of financial matters, including such things as paying sums of money to the person for their personal expenditure, receiving and recovering money payable to the person, carrying on a trade or business of the person, performing contracts entered into by the person, investing for the person, undertaking a real estate transaction for the person, withdrawing money from, or depositing money into, the person’s account with a financial institution, and many others.485 For any guardianship order, the Victorian Civil and Administrative Tribunal (VCAT) would stipulate in the order which specific powers the guardian or administrator should have or, in rare circumstances, that the guardian is able to exercise powers related to all matters in the list.486 That is, the legislation would specifically direct the VCAT’s consideration to the very particular decision-making needs of the individual at issue, and indicate that full administration of property-related matters by the substitute decision-maker should be the exception and not the rule.
It should be noted that because the range of decisions that may fall within property management is so extensive, and because needs will often evolve as an individual moves through the life cycle, there is a risk with partial guardianships for property of unexpected and problematic gaps in the guardianship order. As with other recommendations, a more accessible tribunal-based process for appointments would make this recommendation more viable. As well, appointments for limited property guardianships could be paired with review orders, as recommended above, to reduce the risk of problematic gaps.
Professor Doug Surtees, in his examination of the implementation of reforms to Saskatchewan’s laws related to guardianship, found that despite reforms to legislation intended to reduce overly-broad use of guardianship, the vast majority of appointments continued to be plenary or virtually plenary orders (that is, the only powers not granted were powers that were not relevant, such as powers to make decisions about employment in relation to a person of very advanced age). In his analysis of this trend, Surtees pointed to the possibility of implementation issues, including lack of understanding of the legislation on the part of the bench and bar, or that the transaction costs associated with repeated orders creates an incentive to seek plenary orders.487 If the latter is the case, a move towards a more accessible tribunal system for appointments may reduce this incentive and make partial orders a more practical option for many families.
The LCO believes that increasing the opportunities for limited appointments is in keeping with the underlying values of legal capacity and decision-making laws, and that if the government accepts the recommendation for an expanded administrative tribunal, this may become a more practical option for appointments. This proposal received support during the Interim Report feedback.
THE LCO RECOMMENDS: 44: Consistent with the current approach to the appointment of guardians for personal care, the Government of Ontario amend the Substitute Decisions Act, 1992 to permit adjudicators to make appointments for limited property guardianships, where an assessment of needs for decision-making indicates that a partial guardianship would meet the needs of the individual within the time limits of the order.
In some jurisdictions, the court or tribunal has the power to make a specific necessary decision for an individual, rather than appoint a substitute decision-maker or supporter. For example, in the very new Irish legislation, where the court has made a finding of incapacity, and a co-decision-making order is inappropriate, the court has the power to make the necessary decision or decisions on behalf of the individual, “where it is satisfied that the matter is urgent or that it is otherwise expedient for it to do so”. The court may also appoint a decision-making representative solely for the purpose of making a single decision, where appropriate.488
Under Ontario’s regime, decisions for treatment, admission to long-term care and personal assistance services for persons who lack legal capacity are made on a decision- specific basis without the need for a formal, long-term appointment of a substitute decision-maker. Accordingly, the need for a single decision will be relatively rare. However, the LCO’s project on Registered Disability Savings Plans (RDSPs) provided an example of how such a situation can arise. The RDSP is a federal program under the Income Tax Act to provide support to adults with disabilities as they grow older. Where an individual lacks legal capacity to open a plan, a legally authorized person must be appointed to do so. While the requirements and consequences of appointing a guardian were perceived as disproportionate to the nature of the decision to be made, affected adults might also be unable to meet the threshold for capacity to make a power of attorney. The LCO’s Final Report in its RDSP project provided recommendations for creating a streamlined appointment process to meet this particular need.489 However, other similar situations do arise, such as the settlement of trusts, and it is neither efficient nor effective to contemplate developing special processes for each type of case that may arise. It is the LCO’s view that partial or single appointments for property Guardianship is intended to apply not simply where an individual has a limitation in decision- making abilities, but where that limitation, in the circumstances of that individual, makes substitute decision- making by a guardian necessary in order that required decisions can be made in a way that has legal effect.decisions may provide an effective avenue for some individuals in these types of circumstances, particularly when combined with more accessible appointment processes, as recommended in Chapter 7.
The LCO does not believe that it is consonant with the approach to legal capacity and decision-making adopted in this project to provide an adjudicator with the authority to make decisions for an individual. However, we note that the HCCA currently includes a process whereby the CCB can appoint a representative to make a decision under that statute.490 The LCO believes that expanding this power to issues related to property management or personal care would increase the flexibility of the system to address those situations where needs for formal decision-making are relatively rare, and even a partial guardianship would unnecessarily restrict the autonomy of the individual. As with representatives under the HCCA, any person could bring an application, with the PGT able to do so as a last resort. This proposal received support in the feedback on the Interim Report.
As with the recommendations for reviews and partial guardianships for property, this recommendation is worthwhile within the current court-based system, but is likely to have a much stronger impact if adjudication under the SDA is moved to a more accessible forum.
45: The Ontario Government amend the Substitute Decisions Act, 1992 to permit an adjudicator to appoint a representative to make a single decision related to property or personal care.
In this Chapter, the LCO recommends a number of measures related to the appointment of guardians that are intended to reduce the scope and use of guardianship, and more closely tailor this sometimes necessary but highly intrusive function to those circumstances where it is truly necessary. Guardianship is intended to apply not simply where an individual has a limitation in decision-making abilities, but where that limitation, in the circumstances of that individual, makes substitute decision-making by a guardian necessary in order that required decisions can be made in a way that has legal effect. These recommendations are intended to enable guardianship to be tied more closely to the needs and circumstances of each particular individual. The LCO’s recommendations require some re-allocation of resources, but in the view of the LCO, this would result in the more effective use of limited resources overall. Some recommendations, such as the elimination of statutory guardianship, could only be implemented in the context of a much more accessible adjudication system, as
These proposals, taken together, would enhance the ability of Ontario’s legal capacity, decision-making and guardianship system to divert individuals away from guardianship where appropriate alternatives can be found, and to ensure that whenever a guardian is appointed, that the appointment is as tailored as possible.
recommended in Chapter 7, while others could be implemented within the current adjudication system, but would be more effective when paired with reforms to adjudication.
In summary, the LCO recommends that,
• adjudicators considering the appointment of a guardian for matters related to property or personal care be empowered to request a report on the circumstances of the individual in question, including the nature of their needs for decision- making, the supports already available to them, and whether there are additional supports that could be made available to them that would obviate the need for guardianship;
• the statutory guardianship process under sections 15 and 16 of the Substitute Decisions Act, 1992 be eliminated, as a matter of progressive realization, and replaced by applications for appointments, subject to the creation of a tribunal with broad jurisdiction over Substitute Decisions Act matters, as proposed in Chapter 7;
• the Substitute Decisions Act, 1992 be amended to require adjudicators, at the time of the appointment of a guardian, to determine whether the order could appropriately be time-limited or subject to review at a specific time, and to only make an unlimited guardianship order where such limitations are not warranted;
• guardians be given an explicit duty, when they have reason to believe that the individual may have regained legal capacity, to assist the person to have the guardianship order terminated;
• the Substitute Decisions Act, 1992 be amended to permit adjudicators to make appointments for limited property guardianships; and
• the Substitute Decisions Act, 1992 be amended to permit an adjudicator to appoint a representative to make a single decision related to property or personal care.
These proposals, taken together, would enhance the ability of Ontario’s legal capacity, decision-making and guardianship system to divert individuals away from guardianship where appropriate alternatives can be found, and to ensure that whenever a guardian is appointed, the appointment is as tailored as possible.
Ultimately, these proposals would better align Ontario’s system with its underlying value of minimizing unwarranted intervention.