A. INTRODUCTION AND BACKGROUND
nder current Ontario law, where a person does not have the legal capacity to make a particular decision or type of decision, a substitute decision- maker (SDM) must be identified. In the vast majority of cases, that SDM will be a member of the individual’s family or a close friend. There are a
relatively small number of individuals who have as their SDMs a professional (such as a lawyer, for example), an organization (such as a trust company) or the government (through the Public Guardian and Trustee (PGT).
The Discussion Paper, Part Three, Ch II, raised the question of whether, in light of changing economics, family structures and demographics, Ontario ought to expand the range of options for appointments as SDMs available to individuals. This Chapter examines that issue.
It should be emphasized that this discussion does not include supported decision- making arrangements, in which the individual makes the final decision with assistance from others. It is the view of the LCO that supported decision-making requires close, trusting personal relationships. While many persons granted powers of attorney (POAs) or appointed as guardians are in trusting relationships with the individual for whom they make decisions and may be selected for such reasons (as discussed below), this is not necessarily the case. Furthermore, where no such relationships exist or they are not appropriate as a basis for decision-making, the more formal accountability mechanisms associated with substitute decision-making are essential.
However, it is worth considering whether expanded roles for professionals and community agencies may include roles as monitors under a POA or supported decision-making authorization, as outlined in Chapters 4 and 6.
B. CURRENT ONTARIO LAW
1. Legislative Overview
• The provisions of Ontario law regarding who may act as a substitute decision- maker are outlined at length in the Discussion Paper, Part Three, Ch. II.
Who May Act as a Substitute Decision-maker
Under a Power of Attorney
An attorney must be:
2.Eighteen in the case of an attorney for property; sixteen for personal care An attorney for personal care may not be a person who
• Provides paid health, residential, social, training or support services to the grantor
• Unless that person is the grantor’s spouse, partner or relative
The PGT may only be appointed as an attorney with permission in writing.
Court Appointed Guardians
The court may not appoint:
1. A person who provides paid health, residential, social, training or support services to the individual, with limited exceptions
2. The PGT, unless the application proposes the PGT, the PGT consents, and there is no other suitable person who is available and willing to be appointed
The court must consider:
1.Whether the individual proposed as guardian is already acting under a POA for the person
2.The wishes of the person involved if they can be ascertained
3.The closeness of the relationship between the proposed guardian and the person
Replacement Statutory Guardians for Property
The PGT may consider applications from the following persons to replace the PGT as statutory guardian:
1.the person’s spouse or partner
2.a relative of the person
3.an individual holding a continuing POA for property for that person, if that POA was completed prior to the certificate of incapacity and did not give the attorney authority over all of the person’s property, or
4.a trust company, if the person has a spouse or partner who consents in writing.
The PGT must consider:
1.the legally incapable person’s current wishes if they can be ascertained
2.the closeness of the relationship between the applicant and the person
The PGT must be satisfied with the management plan submitted, and that the person is suitable
Health Care Proxies
The HCCA sets out a hierarchical list of those who may act for those who have been found incapable. These individuals must be:
1.capable with respect to the decision to be made
2.at least 16 years of age, unless he or she is the parent
3.not prohibited by court order from having access to or giving or refusing consent for this person
5.willing to assume the responsibility
The PGT shall make the decision if no person identified through the list meets the requirements
Families can bring a deep personal knowledge of the individual to guide them with decision- making and assist with the practical and emotional aspects of the task.
2. The Preference for Family
A review of the legislation quickly indicates a strong preference for family as SDMs. This is not surprising: the role is a difficult and demanding one which not infrequently spans many years and may be closely entwined with caregiving choices and responsibilities. Families can bring a deep personal knowledge of the individual to guide them with decision-making and assist with the practical and emotional aspects of the task. As well, they can often bring the profound commitment to the wellbeing of the individual that the role requires. It is a role imbued with trust and responsibility, and for many people, families are where they are most comfortable placing that trust and responsibility.
Nonetheless, some individuals either do not have family or friends who are appropriate, willing or able to take on this role, or would prefer that the role be carried out by someone with professional skill and objectivity. Trust companies will act under POAs for property for some existing clients, and will also sometimes be appointed as guardians for property in court proceedings. Lawyers and accountants will also sometimes agree to act under a power of attorney for property for their clients. Trust companies are, of course, heavily regulated institutions. Lawyers and accountants are guided by their professional standards and are subject to the oversight of their regulatory bodies, although not necessarily with respect to this role.
3. The Role of the Public Guardian and Trustee
The PGT may become guardian for a person who lacks legal capacity in two ways:
• statutory guardianships for property, as is detailed in Chapter 8, and
• appointment by the court, as is described in Chapter 7, most frequently following a “serious adverse effects” investigation.
In 2013-2014, the PGT was acting for only 21 clients under personal guardianship (3 on a temporary basis).491 The PGT notes that the Court will appoint it to make personal care decisions only “very occasionally” and in most cases to “remove the individual from a situation of harm or to prevent access by third parties who are abusing the person”.492 It is more common for the PGT to act as guardian of property, most frequently through statutory guardianships: the figures were provided in Chapter 8. 493
The PGT will also act as a decision-maker of last resort under the HCCA. In 2011- 2012, the PGT made 4,664 treatment decisions, under its responsibility to do so where there is no one who meets the HCCA requirements.494 The PGT may also consent (in rare circumstances) to appointment under a POA.
The Annual Reports of the PGT point to a steady and significant increase in the caseload of the PGT since 2000, both in absolute numbers and the number of clients as a percentage of Ontario’s adult population,495 likely reflecting Ontario’s aging population, as well as other demographic shifts such as smaller family sizes and increased family mobility. The PGT’s Annual Reports also point to increased complexity in the client files handled.496
What is important to note from the above is that the PGT acts as decision-maker in two broad circumstances: where there is no other appropriate, available and willing person to act, and where, as with statutory guardianships and guardianships resulting from investigations, there is perceived to be a need for an entity that can act quickly to prevent dispersal of property (as with statutory guardianships) or to end ongoing abuse, neglect or exploitation. This Chapter will focus on the PGT’s role as an SDM of last resort.
In addition to the demanding legal requirements, SDMs often face many practical, emotional and ethical challenges.
C. AREAS OF CONCERN
The LCO heard a number of concerns about the options for potential SDM appointees available to individuals. These growing challenges create pressure on existing institutions: they also create an opportunity to re-think who may fulfil the role of an SDM.
The complexities and challenges of the role: The role of an SDM can be extremely challenging. Some lawyers commented to the LCO that if people really understood what they were taking on when they agreed to act under a POA, far fewer people would be willing to do this. In addition to the demanding legal requirements, SDMs often face many practical, emotional and ethical challenges. Decisions may be high- stakes, involve complicated information and require rapid response. Decisions may well need to be made over the objections of the person who is intended to benefit over the long-term, so that the emotional costs may be high: for example, while admission to long-term care may be necessary, it is very often not a welcomed decision. Not infrequently, despite the guidance of the legislation, it will be far from clear what the “right” thing is to do in a particular circumstance. And as discussed in Chapter 10, there are relatively few practical supports for those taking on the role of substitute decision-maker.
In conversations with trust companies that act under POA for property or as guardians for property, these professionals also emphasized the challenges of the role, despite their expertise in financial management and the benefit of accumulated experience. The shifting nature of legal capacity, the complexity of the law, the difficulties of family dynamics and the challenging nature of some individuals’ needs all combine to make this a demanding role, even in the best circumstances.
It was pointed out to the LCO that the role of an SDM is a unique and complex role, requiring a very particular mix of skills. Individuals frequently ask lawyers or accountants to act under powers of attorney for property, assuming that those professional skills will provide adequate preparation for the role, but this is not necessarily the case at all.
Individuals who are socially isolated: As is discussed in Chapter 3, social and demographic trends are leaving more individuals without any family or friends who are both appropriate SDMs and willing to undertake the role. Throughout the consultations, the LCO repeatedly heard concerns about growing numbers of individuals who are socially isolated and have no appropriate person to act as an SDM if necessary. One long-term care home administrator with whom the LCO spoke indicated that she was aware of a long-term care home in which approximately one- third of the residents were having their property decisions made by the PGT.
Constrained options: Powers of attorney offer individuals the opportunity to choose for themselves who will act for them, should such assistance become necessary. It seems reasonable that individuals, knowing their own needs and their social circle, will be in the best position to make good choices about SDMs.
However, it was pointed out that these are, in most cases, constrained choices. Few of us have a wide circle of support from which to choose. The people who are closest to us, or who we most trust, may not have the skills to manage complex property issues or the temperament to make high stakes treatment decisions, or may live too far away to be able to effectively fill the role. Or the family dynamics or dependency relationships may be such that the person creating the POA may not be comfortable to name the person(s) who would be most effective, because others would be hurt or upset by the choice. In some cases, the individual must make the least inappropriate choice within a set of suboptimal options. These kinds of constrained choices may contribute to problems once the POA comes into effect, whether in the form of attorneys who exercise their duties poorly or abusively, or conflicts within the family regarding the exercise of the POA functions.
There are, therefore, individuals who are looking for SDM options beyond their family and friends, not because they are socially isolated, but because they simply have no one in their social circle with the necessary skills or temperament to fill this role, or because family dynamics make it impossible to fill the role without serious conflicts arising.
Many lawyers who work in this area told the LCO that they are very frequently asked to act under POAs. Some lawyers will take on this role, but many will not. Some trust companies reported being asked by clients to act as POAs for personal care, a role which they cannot take on, and which they would view as inappropriate for them even if it was permitted. Many stakeholders pointed out that there is a business opportunity here, and that there are organizations and individuals moving to fill the gap, but because there are no checks or oversight mechanisms, the quality of what is provided is extrem