Endnotes2017-03-08T16:17:21+00:00

[1] Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (Toronto: April 2012), online: http://www.lco-cdo.org/en/older-adults-final-report [LCO, Framework for the Law as It Affects Older Adults]; Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Toronto: September 2012), online: http://www.lco-cdo.org/en/disabilities-final-report  [LCO, Framework for the Law as It Affects Persons with Disabilities].
[2] Law Commission of Ontario, Final Report, Capacity and Legal Representation for the Federal RDSP (Toronto: June 2014) [LCO, RDSP Final Report], online: http://www.lco-cdo.org/en/rdsp.
[3]Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Discussion Paper (Toronto: May 2014), Part I, Ch 1.B, online: http://lco-cdo.org/en/capacity-guardianship-discussion-paper  [LCO, Legal Capacity and Decision-making Discussion Paper].
[4]Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Summary of Issues for Consultation (Toronto: June 2014), online: http://www.lco-cdo.org/en/capacity-guardianship-discussion-paper-summary-consultation-issues  [LCO, Summary of Issues].
[5] Law Commission of Ontario, Legal Capacity, Decision-making and Guardianship: Interim Report (Toronto: October 2015), online: http://lco-cdo.org/en/capacity-guardianship-interim-report [LCO, Interim Report].
[6] For a brief overview of this law reform process, see LCO, Legal Capacity and Decision-making Discussion Paper, note 3.
[7] Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A [HCCA].
[8] Substitute Decisions Act, 1992, S.O. 1992, c. 30 [SDA].
[9] Mental Health Act, R.S.O. 1990, c. M.7 [MHA].
[10]The British Columbia Law Institute has carried out substantial work on common law tests of capacity: British Columbia Law Institute, Report on Common-Law Tests of Capacity (Vancouver: September 2013), online: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf.
[11] Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A [PHIPA].
[12]LCO, Framework for the Law as It Affects Older Adults, note 1; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1.
[13] LCO, RDSP Final Report, note 2.
[14]Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: 1987) [Fram Report].
[15] David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: Publications Ontario, 1990), 55 [Weisstub Report].
[16]Fram Report, note 14, vii.
[17]Fram Report, note 14, 39-47.
[18]Review of Advocacy for Vulnerable Adults, Terms of Reference, January 1987 in Sean O’Sullivan, You’ve Got a Friend: A Review of Advocacy in Ontario (Toronto: Ontario Ministry of the Attorney General, 1987), 121-22.
[19] SDA, note 8, s. 2; HCCA, note 7, s. 4(2).
[20] HCCA, note 7, ss. 10, 40.
[21] SDA, note 8, s. 3; HCCA, note 7, s. 81.
[22] SDA, note 8, ss. 32(1), 38.
[23] SDA, note 8, ss. 66(2)-(3).
[24] SDA, note 8, ss. 32(2)-(5).
[25]  Information on this project may be found online at http://www.lco-cdo.org/en/last-stages-of-life.
[26] LCO, Framework for the Law as It Affects Older Adults, note 1; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1.
[27] Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, GA Res 61/106 (entered into force 3 May 2008, ratified by Canada 11 March 2010) [CRPD].
[28] Kerri Joffe & Edgar-Andre Montigny (ARCH Disability Law Centre), Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship (Toronto: Law Commission of Ontario, January 2014) [Joffe & Montigny], 6, online: http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-arch.
[29] City of Toronto, Toronto Facts: Diversity, online: http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=dbe867b42d853410VgnVCM10000071d60f89RCRD&vgnextchannel=57a12cc817453410VgnVCM10000071d60f89RCRD.
[30] LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, Ch. II.D; LCO, Framework for the Law as It Affects Older Adults, note 1, Ch. III.A.
[31] Some proponents of supported decision-making have proposed that government should have a role to play in fostering support relationships or (for some proponents) in providing paid supports that can approximate this kind of intimate and trusting relationship. See, for example, Michael Bach & Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Toronto: Law Commission of Ontario, October 2010) [Bach & Kerzner, A New Paradigm], 141 and following, online: http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner;  and Coalition on Alternatives to Guardianship, The Right to Legal Capacity and Supported Decision-making for All, A Brief to the Law Commission of Ontario (Toronto: October 2014) [Coalition on Alternatives to Guardianship, Brief] 30 and following, online: http://communitylivingontario.ca/sites/default/files/Coalition%20Brief%20to%20LCO%20-%20Oct%202014%20-%20final.pdf.
[32] Margaret Isabel Hall, “Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability” (2012) 58:1 McGill L. J. 61, 65.
[33] Webb v Webb, 2016 NSSC 180 (CanLii) 6 [Webb].
[34] SDA, note 8, s. 78.
[35] MHA, note 9, s.59.
[36] SDA, note 8, ss. 22(3) and 55(2).
[37] SDA, note 8, ss. 32(3), 66(3), (4), and (5); HCCA, note 7, s.21.
[38] A “Ulysses agreement” allows a person creating a power of attorney for personal care to waive rights to challenge a finding of incapacity or to permit the use of force to facilitate treatment. Not surprisingly, the requirements for the creation of a “Ulysses agreement” are stringent: SDA, note 8, s. 50; HCCA, note 7, s. 32(2).
[39] LCO, Framework for the Law as It Affects Older Adults, note 1, 87-88.
[40] A brief discussion of adult protection laws may be found at LCO, Framework for the Law as It Affects Older Adults, note 1, Ch. III.B.5.
[41] Among the aspects of diversity which should be considered in applying the Frameworks, should be included gender identity, reflecting the protections of the Ontario Human Rights Code and the growing understanding of the experiences of individuals related to gender identity and of the discrimination experienced by individuals on this basis.
[42]  HCCA, note 8, s. 1.
[43] See for example the description of the purposes of supported decision-making: Adult Protection and Decision-making Act, S.Y. 2003, c. 21, Sched. A, [Adult Protection and Decision-making Act], s. 4.
[44] Alberta Guardianship and Trusteeship Act, S.A 2008, c. A-4.2, [AGTA], s. 2; The Adult Guardianship and Co-Decision-making Act, S.S. 2000, c. A.5.3, [Adult Guardianship and Co-Decision-making Act], s. 3; Adult Protection and Decision-making Act, note 43, s. 2; Mental Capacity Act 2005, (UK), c. 9, [Mental Capacity Act], s. 1; Assisted Decision-Making (Capacity) 2015, No. 64 of 2015, Minister for Justice and Equality (July 13, 2012), [Irish Act 2015], s. 8.
[45] Victorian Law Reform Commission, Guardianship: Final Report (Melbourne, Australia: 2012) [VLRC, Final Report], 78, online: http://www.lawreform.vic.gov.au/projects/guardianship-final-report.
[46] Long-Term Care Homes Act 2007, S.O. 2007, c.8, [LTCHA], s. 1.
[47] LCO, Framework for the Law as It Affects Older Adults, note 1, 107.
[48] Information about the Ontario Government’s Open Government initiative can be found online at https://www.ontario.ca/page/open-government. On April 14, 2016, the LCO co-hosted, with Legal Aid Ontario and the Canadian Forum on Civil Justice, a forum on Open Data in the Justice System.
[49] Open by Default (March 2014), online: https://www.ontario.ca/page/open-default-new-way-forward-ontario.
[50] Available online: https://www.ontario.ca/page/ontarios-open-data-directive.
[51] Policy Horizons Canada, “The Case for Evidence Based Policy”, 2013, online: http://www.horizons.gc.ca/eng/content/case-evidence-based-policy.
[52]Michael Howlett & Jonathan Craft, “Policy Advisory Systems and Evidence-Based Policy: the Location and Content of Evidentiary Policy Advice” in
Shaun P. Young, ed., Evidence Based Policy-making in Canada (Don Mills, Ontario: Oxford University Press, 2013), 28.
[53] An Act to amend the Human Rights Code, S.O. 2006, c. 30, s. 57.
[54] See Andrew Pinto, Report of the Ontario Human Rights Review 2012 (Toronto: Queen’s Printer for Ontario, 2012), online: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/human_rights/Pinto_human_rights_report_2012-ENG.pdf [Pinto Report].
[55] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 [AODA], s. 41.
[56] See, for example, the extended discussion by the Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws: Report, (Queensland Law Reform Commission: September 2010), [QLRC R67] Volume 1, 264-69, online: http://www.qlrc.qld.gov.au/publications. A very helpful outline of the evolution of these approaches can be found in Kristin Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond” (2012) 44 Colum. Hum. Rts. L. Rev. 93-169.
[57] Weisstub Report, note 15.
[58] CRPD, note 27.
[59] Bonnie Laschewicz and others, Understanding and Addressing Voices of Adults with Disabilities within Their Family Caregiving Contexts: Implications for Capacity, Decision-Making and Guardianship (Toronto: Law Commission of Ontario, January 2014), online: http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-lashewicz, [Laschewicz] provides examples both of families who are attempting to support individuals in this sense, and of families that employ a more paternalistic approach to decision-making for their loved ones.
[60] HCCA, note 7, s. 4.
[61] SDA, note 8, s. 2; Capacity Assessment Office, Ontario Ministry of the Attorney General, Guidelines for Conducting Assessments of Capacity (Toronto: 2005), [MAG, Guidelines], I.2, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-06/guide-0505.pdf.
[62] Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32, [Starson], para. 80.
[63] CRPD, note 27.
[64] CRPD, note 27, Article 1.
[65] CRPD, note 27.
[66] Nations Treaty Collection, “Status of Treaties: Convention on the Rights of Persons with Disabilities”, [Declaration and Reservation], online:  https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en.
[67] Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014) Article 12: Equal Recognition Before the Law (April 11, 2014), [General Comment], online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD/C/GC/1&Lang=en.
[68] Office of the High Commissioner for Human Rights, “The right to take risks and make mistakes: equal recognition before the law for people with disabilities” (Geneva: OHCHR, 15 May 2014), online: http://www.ohchr.org/EN/NewsEvents/Pages/LegalEquality.aspx. A helpful resource on the status of General Comments can be found in Conway Blake, “Normative Instruments in International Human Rights Law: Locating the General Comment”, Center for Human Rights and Global Justice Working Paper No. 17 (New York: 2008), online: http://chrgj.org/wp-content/uploads/2012/07/blake.pdf.
[69] Irish Act 2015, note 45, s. 3.
[70] A decision-making assistance agreement may be made by a person who understands “the information as to the effect of making the appointment”. The assistant may obtain relevant information, provide advice to the appointer by explaining relevant information or considerations, ascertain the will and preference of the appointer and assist the appointer in communicating this, assist the appointer to make and express a decision, or assist in the implementation of a decision. The decision is that of the appointer. Irish Act 2015, note 45, s.  14.
[71]The supporter may assist the person in obtaining information, understanding information and alternatives, and in implementing decisions.  Capacity and Guardianship (Amendment No. 18) Law, 5776-2016, s. 30, adding section 67B.
[72] AGTA, note 44, s. 13; Adult Guardianship and Co-Decision-making Act, note 44, ss. 13, 39.
[73]  Irish Act 2015, note 44, Part IV.
[74] Advocacy Centre for the Elderly, written submission to the LCO, October 17, 2014, [ACE Submission Legal Capacity 2014], 8.
[75]  Coalition on Alternatives to Guardianship, written submission to the LCO, March 14, 2016,[Coalition Submission 2016] 3.
[76]  Coalition Submission 2016, note 75, 2.
[77] The full figures for 2013-2014 are included in LCO, Legal Capacity and Decision-making Discussion Paper, note 3, Part Three, III.C.3. There were 1838 open personal guardianship files and 16,833 open property guardianship files. The numbers should be treated with caution: while the PGT maintains a register of private guardianships, it is up to the guardian to inform the PGT of the termination of the guardianship due to, for example, death of the person under guardianship so that there may be fewer active guardianships in the province than these numbers suggest.
[78] Consultation questionnaire. Excerpts from questionnaires have been edited to remove identifying information and for typographical errors.
[79] SDA, note 8, ss. 33(1), (2), (3).
[80] General Comment, note 67, para 8.
[81] The General Comment (note 67) emphasizes that the right to choose medical treatment must be respected even in crisis situations (para 42). It states that accurate and accessible information must be provided, as well as non-medical options.
[82] Advocacy Centre for the Elderly, Written submission to the LCO on the RDSP Project, February 28, 2014, 9.
[83] Adult Protection and Decision-Making Act, note 43, ss. 5(2), 11; AGTA, note 44, s. 6(2).).
[84] Advocacy Centre for the Elderly, written submission to the LCO on the Interim Report, March 3, 2016, [ACE Submission Legal Capacity 2016] 4.
[85] Coalition on Alternatives to Guardianship, Brief, note 31, 26.
[86] Ontario Human Rights Code, R.S.O. 1990, c. H.19 [Human Rights Code], ss. 11 and 17.
[87] Human Rights Code, note 87, s. 47(2).
[88] Ontario Human Rights Commission, Policy on Preventing Discrimination on the Basis of Mental Health Disabilities and Addictions (Toronto: June 18, 2014), online: http://www.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf, 69.
[89] Written submission of the Royal College of Dental Surgeons to the LCO, March 21, 2016, 3.
[90] Communication Disabilities Access Canada, written submission to the LCO, October 2015.
[91] Canadian Bankers Association, written submission to the LCO, March 4, 2016, [Canadian Bankers Association] 2.
[92] Human Rights Code, note 87, O. Reg. 290/98, Business Practices Permissible To Landlords In Selecting Prospective Tenants For Residential Accommodation.
[93] See, for example, Ontario Human Rights Commission, Policy on Discrimination and Language (Toronto: June 19, 1996), online: http://www.ohrc.on.ca/en/policy-discrimination-and-language.
[94] City of Toronto, Stakeholder Consultation Results, Reforms to Ontario’s Legal Capacity, Decision-making and Guardianship Laws: Implications for Toronto’s Vulnerable Residents and the Service Providers Who Support Them (May 16, 2016) [City of Toronto, Stakeholder Consultation Results] 5.
[95] MAG, Guidelines, note 62, Section III.2 and VII.2.
[96] MAG, Guidelines, note 62, Section VI.
[97] SDA, note 8, ss. 33(3),(4), (5); 66(5),(6),(7), (8).
[98] SDA, note 8, ss. 66(2.1), (3), (4).
[99] SDA, note 8, ss. 66(8) and (9).
[100] HCCA, note 7, s. 21.
[101] SDA, note 7, s. 37.
[102] SDA, note 7, s. 32(1). The Public Guardian and Trustee’s Duties and Powers of a Guardian of Property (online: https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/guardduties.php) emphasizes the importance of this connection for the way in which property decisions are carried out. It states:

You must manage the property in a way that accommodates the decisions made about the incapable person’s personal care. For example, if the person wants to live in a certain place and can afford it, it would be your duty to arrange to pay for this choice of residence. If the person wants to take a vacation and can afford it, it would be your duty to make arrangements to pay for it. However, there is one exception to this obligation. You may make a financial decision that overrides a personal care decision only if to do otherwise would result in negative consequences with respect to property that heavily outweigh the personal care benefits of the decision. For example, the person may want to remain living in his or her own house, but may require 24 hour care and not have enough money to pay for it without selling the house and moving to another residence. In that case, the need to sell the house in order to have enough money to pay for the person’s care may heavily outweigh the person’s wish to remain living in the house.”
[103] SDA, note 7, s. 31(1).
[104] See for example, Laschewicz, note 59.

[106] Tal Cahana and Dr. Shira Yalon-Chamovitz, Article 12 Supported Decision-making Pilot, Study of Assessment Study Findings (December 2015) [Cahana & Yalon-Chamovitz].Cahana & Yalon-Chamovitz, 47. There have been a number of small scale pilot projects examining supports for decision-making. Most focused on persons with intellectual disabilities, although some also included persons with psychosocial disabilities, acquired brain injury or autism. None of the pilot projects included persons with dementia. Some focused on persons with existing supports, while others centred on socially isolated individuals. Many examined the possibilities for strengthening positive decision-making practices within the context of existing guardianship orders, while some excluded persons under guardianship. See Margaret Wallace, Evaluation of the Supported Decision Making Project, Final Independent Evaluation (Office of the Public Advocate, South Australia: November 2012) [Office of the Public Advocate]; Gill Westhorp, Supported Decision Making Program 2014-2015: Evaluation Report (Health & Community Services Complaints Commissioner South Australia), online: http://www.hcscc.sa.gov.au/wp-content/uploads/2015/11/HCSCC-SDM-Project-2015-Evaluation-Report1.pdf; ACT Disability, Aged and Carer Advocacy Service (ADACAS), Spectrums of Support: A Report on a Project Exploring Supported Decision making for People with Disability in the ACT (September 2013), online: http://www.adacas.org.au/decision-support/copy_of_SupportedDecisionMakingProjectFinalReport.pdf [ADACAS 2013]; Kate Rea and Fiona May, Self Determination and Cultural Change: A Report on Supported Decision Making for People Experiencing Psychosocial and Intellectual Disability 2014), online: http://www.adacas.org.au/decision-support/ADACAS_recommendations_SDM_psychosocial_and_intellectual_disabilty.pdf [ADACAS 2014]; Westwood Spice, My life, my decision – an independent evaluation of the Supported Decision Making Pilot (New South Wales Department of Family and Community Services: April 2015), online: https://www.adhc.nsw.gov.au/__data/assets/file/0009/346194/sdm_pilot_project_evaluation_report.pdf [Westwood Spice];.
[107] See for example, Office of the Public Advocate, note 107, 51;   ADACAS 2013, note 107, 33-40; ADACAS 2014, note 107, 15; Westwood Spice, note 107.
[108] See for example Cahana & Yalon-Chamovitz, note 107, 47.
[109] LCO, Legal Capacity and Decision-making Discussion Paper, note 3, Part III, Ch1.D.2.
[110] Krista James & Laura Watts (Canadian Centre for Elder Law), Understanding the Lived Experiences of Supported Decision-Making in Canada (Toronto: Law Commission of Ontario, March 2014), [James & Watts] 49-55, online: http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-ccel.
[111] For an outline of Alberta’s supported decision-making authorizations see LCO, Legal Capacity and Decision-making Discussion Paper, note 3, 126-128.
[112] James & Watts, note 110, 57-62.
[113] City of Toronto, Stakeholder Consultation Results, note 94, 5.
[114] The Report did identify as a secondary option the use of the more flexible criteria adopted in British Columbia’s Representation Act: however, the broader scope of these proposed support authorizations, the multiple safeguards built into the RDSP program itself, and the potential lack of the basic oversight provided in the RDSP context by interaction with a financial institution makes such criteria less appropriate in the broader context of this project. LCO, RDSP Final Report, note 2, section IV.C.3.
[115] AGTA, note 44, s. 4(2); Adult Protection and Decision Making Act, note 43, s. 5(1), Irish Act 2015, note 44, s. 14(1).
[116] AGTA, note 44, s. 4(2); Adult Protection and Decision Making Act, note 43, s. 5(1), Irish Act 2015, note 44, s. 14(1).
[117] AGTA, note 44, s. 4(2); Adult Protection and Decision Making Act, note 43, s. 5(1), Irish Act 2015, note 44, s. 14(1).
[118] Adult Protection and Decision Making Act, note 43, s. 5(1), Irish Act 2015, note 44, s. 14(1)
[119] Adult Protection and Decision Making Act, note 43, s. 5(1), Irish Act 2015, note 44, s. 14(1).
[120] Adult Protection and Decision Making Act, note 43, s. 5(1), Irish Act 2015, note 44, s. 14(1).
[121] Irish Act 2015, note 44, s. 11.
[122] Adult Protection and Decision Making Act, note 43, ss. 5(2), 11, AGTA, note 44, s. 6(2).
[123] As defined by Ministry of Community and Social Services, person-directed planning “helps people with a developmental disability prepare life plans that lay out their distinct needs and goals. These plans can help them make the most out of funding and outline ways they can participate in community activities”: online: http://www.mcss.gov.on.ca/en/mcss/programs/developmental/servicesupport/person_directed_planning.aspx.
[124] Sophie Nunnelley, Personal Support Networks in Practice and Theory: Assessing Their Implications for Supported Decision-making Law (Toronto: Law Commission of Ontario, January 2015), [Nunnelley, Personal Support Networks], online: http://www.lco-cdo.org/en/capacity-guardianship-commissioned-paper-nunnelley.
[125] Nunnelley, Personal Support Networks, note 124, 103.
[126]  Irish Act 2015, note 44, Part IV.
[127] HCCA, note 7, s. 10.
[128] Law Society of Upper Canada, Rules of Professional Conduct, adopted by Convocation June 22, 2000, Section 3.2-9, “Client with Diminished Capacity” online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486159; Law Society of Upper Canada, Paralegal Rules of Conduct, adopted by Convocation March 29, 2007, Rule 3.02 “Client with Diminished Capacity”, online: http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147486158. For a very helpful overview of the law in this area, see ARCH Disability Law Centre, Addressing the Capacity of Parties Before Ontario’s Administrative Tribunals: Promoting Autonomy and Preserving Fairness, December 2009, Chapter One, online: http://www.archdisabilitylaw.ca/addressing-capacity-parties-ontario%E2%80%99s-administrative-tribunals-respecting-autonomy-protecting-fairne.
[129] LCO, RDSP Final Report, note 2.
[130] Canadian Bankers Association, note 91.
[131] MHA,note 9, ss. 54-60.
[132] The person must have a guardian under the SDA, but with respect to the power of attorney, the physician must believe “on reasonable grounds” that such a document exists: MHA, note 9, s. 54(6).
[133] MHA, note 9, s. 54(2).
[134] Cancellation of a certificate is issued using form 23, which only requires the patient’s name and identifying information and the physician’s signature: Ontario Ministry of Health, Form 23, Mental Health Act – Notice of Cancellation of Certificate of Incapacity to Manage One’s Property under Section 56 of the Act (Toronto: Queen’s Printer for Ontario, 2013), online: http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetFileAttach/014-6442-41~1/$File/6442-41E.pdf.
[135] MHA, note 9, s. 57(2).
[136] MHA, note 9, s. 54(4).
[137] SDA, note 8, s. 15.
[138] Consent and Capacity Board, Review of Capacity to Manage Property (Form 18), 2, online: www.ccboard.on.ca/english/publications/documents/form18.pdf.
[139] SDA, note 8, s. 6: “A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
[140] See Roy v Furst, [1999] OJ 1490 (SCJ),  in this decision, Justice MacLeod, noting the lack of  definition for capacity to manage property in the MHA, turned to the definition in section 6 of the SDA as the basis for her judgment.
[141] This is indicated by the use of binding language (“a physician shall examine” as opposed to “the physician may examine”): MHA, note 9, s. 54(1).
[142] MHA, note 9, s. 59(1).
[143] MHA, note 9, s. 59(2).
[144] MHA, note 9, s. 60(1).
[145] SDA, note 8, s. 16(1).
[146] SDA, note 8, s. 79.
[147] SDA, note 8, s. 1(1). Note that designated Capacity Assessors frequently provide opinions with respect to capacity to, for example, create a power of attorney or make a will, situations in which the SDA does not require a formal Capacity Assessment.
[148] Capacity Assessment, O. Reg. 460/05 [Capacity Assessment Reg], ss. 2(1)(a), 2(2).
[149] MAG, Guidelines, note 6.
[150] Capacity Assessment Reg, note 148, ss. 3(1)-(2).
[151] Capacity Assessment Reg, note 148, s. 3(3).
[152] SDA, note 8, ss. 78(1)-(3).
[153] SDA, note 8, ss. 78(5), 16(4).
[154] SDA, note 8, ss. 16(5)-(6).
[155] SDA, note 8, s. 20.2. Note that persons who are found incapable of managing property and who then fall under a continuing power of attorney do not have this avenue open to them. Nor are there rights of review for a finding of incapacity for personal care. See the discussion in D’Arcy Hiltz & Anita Szigeti, A Guide to Consent and Capacity Law in Ontario, 2013 Edition, (Lexis Nexis: Markham, Ontario, 2012), [Hiltz & Szigeti], 32, 43-44.
[156] Hiltz & Szigeti, note 155, 194. It should be noted that the cost of long-term care is regulated, and may be subsidized.
[157] HCCA, note 7, s. 2.
[158] Evaluators, O. Reg. 104/96, s. 1.
[159] The origins of this form are not documented and recollections differ as to its original development. However, it appears to have been in use from the very beginning of the current regime, and has been widely treated as an “official”: Interview with Judith Wahl, Advocacy Centre for the Elderly.
[160] H. (Re), 2005 CanLII 57737 (ON CCB) states, “Merely asking those five questions and getting (or not getting) answers is not a fair test of a person’s capacity.” See, for example, Starson, note 62, paras 77, 81 (evaluators must displace the presumption of capacity on a balance of probabilities and demonstrate that an individual lacks the ability to appreciate the foreseeable consequences of the decision); Saunders v. Bridgepoint Hospital, 2005 CanLII 47735 (ON SC), [Saunders] para. 121 (procedural fairness requires that evaluators inform individuals about the capacity assessment process on an ongoing basis).
[161] In Koch (Re), Quinn J imported some of the procedural safeguards from the SDA into the admissions context, specifically, the right to be informed of the significance of a finding of incapacity, the right to have counsel or a trusted friend present during the evaluation, the right to refuse the evaluation, and the right to be informed of these rights prior to the evaluation: Koch (Re) (1997), 33 O.R. (3d) 485, 70 A.C.W.S. (3d) 712 (Gen Div) [Koch (Re)]. However, some consider these comments to be obiter and the Board has not always considered itself bound by them: Hiltz & Szigeti, note 155, citing I.L.A. (Re), 2004 CanLII 29716 (ON CCB).
[162] HCCA, note 7, ss. 50(1)-(2).
[163] HCCA, note 7, s. 10.
[164] HCCA, note 7, s. 4(3).
[165] HCCA, note 7, s. 15(1).
[166] HCCA, note 7, s. 15(2).
[167] See for example, College of Audiologists and Speech Language Pathologists, “Obtaining Consent for Services: A Guide for Audiologists and Speech Language Pathologists” (CASLPO, June 2006), online: http://www.caslpo.com/sites/default/uploads/files/GU_EN_Obtaining_Consent_for_Services.pdf [CASLPO, Obtaining Consent]; College of Physicians and Surgeons of Ontario, “Determining Capacity to Consent: Guiding Physicians through Capacity and Consent to Treatment” (CPSO, 2007) Dialogue 32, online: http://www.cpso.on.ca/uploadedFiles/policies/policies/policyitems/Consent.pdf; College of Physicians and Surgeons of Ontario, “Consent to Medical Treatment, Policy 4-05” (January/February 2006), online: http://www.cpso.on.ca/policies/policies/default.aspx?ID=1544 [CPSO, Consent to Medical Treatment]; College of Nurses of Ontario, Practice Guideline: Consent (2009), online: http://www.cno.org/Global/docs/policy/41020_consent.pdf [CNO, Practice Guideline: Consent]‎; College of Dieticians of Ontario, “Guidelines: Health Care Consent Act (HCCA)”, online: http://www.cdo.on.ca/en/pdf/publications/guidelines/hcca.pdf [College of Dieticians, “Guidelines”]; College of Dieticians of Ontario, “The Jurisprudence Handbook for Dietitians in Ontario” (Fall 2012), online: http://www.cdo.on.ca/en/pdf/Publications/…/Jurisprudence%20Handbook.pdf; College of Occupational Therapists of Ontario,  Guide to the Health Care Consent and Substitute Decisions Legislation for Occupational Therapists (1996), online: http://www.coto.org/pdf/hcca_guide.pdf [College of Occupational Therapists of Ontario, Consent]; College of Respiratory Therapists of Ontario, “Responsibilities Under Consent Legislation” (December 2011), online: http://www.crto.on.ca/pdf/PPG/UnderConsent.pdf, [College of Respiratory Therapists, “Responsibilities Under Consent Legislation”]; College of Physiotherapists of Ontario, “Health Care Consent Act: Briefing Note” (2005, updated 2007), online:  http://www.collegept.org/Assets/registrants’guideenglish/briefing%20notes/BNhealthCareConsentAct.pdf; College of Chiropractors of Ontario, “Standard of Practice: Consent” (Amended November 2004), online: http://ccholive.v51.com/site_documents/S-013%20Consent.pdf.
[168] National Initiative for the Care of the Elderly, Tool on Capacity & Consent: Ontario Edition (Toronto: Advocacy Centre for the Elderly, 2003), online:  http://www.nicenet.ca/files/NICE_Capacity_and_Consent_tool.pdf.
[169] MHA, note 9, ss. 38, 59.
[170] HCCA, note 7, s. 32.
[171] Flynn et al v. Flynn, (18 December 2007) 03-66/07 (Ont SCJ), cited in Abrams v. Abrams (2008), 173 A.C.W.S. (3d) 410, 173 A.C.W.S. (3d) 606, (Ont SCJ) [Abrams], para. 50.
[172] Abrams, note 171, para. 50.
[173] Sarita Verma & Michel Silberfeld, “Approaches to Capacity and Competency: The Canadian View” (1997) 20:1 Int JL & Psychiatry 35, [Verma & Silberfeld] 42.
[174] Henry Olders, “Comprehensive Assessments of Competence: A Psychiatrist’s Perspective” (2011) 5:2 McGill JL & Health 283, [Olders] 285.
[175] Michel Silberfeld and others, “Capacity Assessments for Requests to Restore Legal Competence” (1995) 10:3 International Journal of Geriatric Psychiatry 191, 196.
[176] See, for example, Koch (Re), note 163, where a husband requested evaluation of his wife’s capacity following the production of a draft separation agreement by his wife’s lawyer. Urbisci v. Urbisci, 2010 ONSC 6130, 67 E.T.R. (3d) 43, also involved a request for assessment in the midst of separation proceedings, when Mrs. Urbisci decided that her husband and daughter were more concerned about her money then her well-being and decided to revoke an existing power of attorney in favour of her husband. Deschamps v. Deschamps (1997), 52 O.T.C. 154, 75 A.C.W.S. (3d) 1130 (Gen Div) [Deschamps], involved a son seeking to be appointed guardian of property for his father as part of an extensive effort to prevent him from re-marrying.
[177] Verma & Silberfeld, note 173, 41.
[178] ARCH Disability Law Centre, written submission to the LCO, March 4, 2016 [ARCH Submission 2016] 8.
[179] Olders, note 174, 283 –  284.
[180] V. (Re), 2009 CanLII 13471 (ON CCB).
[181] Jude Bursten, “Mental Health Law in the Community: A rights Protection Framework That Falls Apart?” in Psychiatric Patient Advocate Office, Mental Health and Patients’ Rights in Ontario: Yesterday, Today and Tomorrow (Toronto: Queen’s Printer for Ontario, 2003) 69, online: https://ozone.scholarsportal.info/bitstream/1873/13331/1/283377.pdf. During preliminary consultations, some stakeholders raised similar concerns about potential improper use of MHA examinations as a compulsory alternative to SDA assessments. Some commented that this was generally well-intentioned. For example, the costs associated with SDA assessments make them impractical in some circumstances. However, the LCO did not locate any documented instances of this kind of practice.
[182] Capacity Assessment Office Brochure, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacityoffice.asp#pays.
[183] Written submission to the LCO from the Ontario Brain Injury Association, October 2014, 2 [OBIA Submission].
[184] Judith Wahl, Mary Jane Dykeman & Brendan Gray, Health Care Consent and Advance Care Planning in Ontario (Toronto: Law Commission of Ontario, January 2014), [Wahl, Dykeman & Gray], 253-254, online: http://lco-cdo.org/en/capacity-guardianship-commissioned-paper-ace-ddo.
[185] Focus Group, Rights Advisers and Advocates, September 25, 2014.
[186] Written submission to the LCO from Centre for Addiction and Mental Health, October 16, 2014, [CAMH Submission] 3.
[187] See note 159, above.
[188] Jeffrey Cole & Noreen Dawe, Assessing Capacity for Admission to Long-Term Care Homes: A Training Manual for Evaluators (2010, revised 2011), iii, online: http://www.ccac-ont.ca/Upload/central/General/ConsentandCapacityTrainingManual.pdf. It is not clear to which study they are referring, unfortunately.
[189] The Dementia Network of Ottawa, “A Practical Guide to Capacity and Consent Law of Ontario for Health Practitioners Working with People with Alzheimer Disease”, online: http://www.community-networks.ca/uploads/L%20consentlawOttAlzheimers.pdf.
[190] Alexandra Carling-Rowland, “Communication Aid to Capacity Evaluation – CACE: A Communicatively Accessible Capacity Evaluation to Make Admissions Decisions” (2012), online: http://www.aphasia.ca/wp-content/uploads/2012/11/Communication-Aid-to-Capacity-Evaluation-CACE.pdf.
[191] In Koch (Re), note 163, Quinn J imported some of the procedural safeguards from the SDA into the admissions context, specifically, the right to be informed of the significance of a finding of incapacity, the right to have counsel or a trusted friend present during the evaluation, the right to refuse the evaluation, and the right to be informed of these rights prior to the evaluation.
[192] Saunders, note 160, para 18.
[193] Wahl, Dykeman & Gray, note 184, 260 – 261; Judith Wahl, Mary Jane Dykeman and Tara Walton, Health Care Consent and Advance Care Planning Tools, Policies and Practices: The Challenge to Get it Right (Toronto: Law Commission of Ontario, November 2016) [Wahl, Dykeman & Walton], forthcoming.
[194] OBIA Submission, note 183, 2.
[195] Wahl, Dykeman & Gray, note 184, 263-264.
[196] [ACE Submission Legal Capacity 2014], note 74, 9.
[197] HCCA, note 7, s. 17.
[198] College of Occupational Therapists of Ontario, Consent, note 167, 1.6 and 1.7.
[199] For example, the College of Audiologists and Speech Language Pathologists, provide specific guidance as to the information to be provided to the person found incapable, the necessity of providing the information to the individual in a way that is appropriate to the individual’s capacity, the duty to continue to involve the individual to the extent possible in discussions with the SDM, and the duty to assist the individual with exercising the option to apply to the CCB for a review of the finding: CASLPO, Obtaining Consent, note 167, 12.
[200] For example, College of Respiratory Therapists, “Responsibilities Under Consent Legislation”, note 167, 15; CASLPO, Obtaining Consent, note 167, 12 “The CASLPO member has an obligation to inform the patient/client in a manner appropriate to the patient/client’s capacity”.
[201] See, for example, College of Physicians and Surgeons, Consent to Treatment, note 167, 7; CASLPO, Obtaining Consent, note 167, 12, College of Dieticians, “Guidelines”, note 167, 4. The College of Nurses of Ontario requires members to respond to indications that “the client is uncomfortable with this information” by exploring and clarifying this discomfort and then informing the client of options: CNO, Practice Guideline: Consent, note 167, Appendix B: Advocating for Clients).
[202] For example, neither the College of Physicians and Surgeons Consent to Medical Treatment, note 167, 7 or the College of Nurses of Ontario’s Practice Guideline: Consent, note 167, provides any exceptions with respect to informing the incapable person of the finding and its consequences.
[203] For example, College of Respiratory Therapists, “Responsibilities Under Consent Legislation”, note 167, 15.
[204] College of Dieticians, “Guidelines”, note 167, 4.
[205] College of Respiratory Therapists of Ontario, “Responsibilities under Consent Legislation”, note 163.
[206] College of Physicians and Surgeons, Consent to Medical Treatment, note 167, 7. See also CNO, Practice Guideline: for Consent, note 167, which requires the nurse to use “professional judgment to determine the scope of advocacy services to assist the client in exercising his/her options”.
[207] Written submission to the LCO by the Mental Health Legal Committee, November 28, 2014, [MHLC Submission 2014] 9-10.
[208] VLRC, Final Report, note 45, Ch. 15, 318.
[209] Advocacy Centre for the Elderly, written submission to the LCO on the Framework for the Law as It Affects Older Adults, July 2008, 23-24.
[210] See Conway v Fleming, [1996] 1242 ACWS (3d) 62, para 282-285; W (Re), 2006 CarswellOnt 9390 (ON CCB) para 28 and 30.
[211] HCCA, note 7, s. 7; R. v. Thomas, 2000 CarswellOnt 1173; [2000] OJ No 1308; 46 WCB (2d) 59, para 4.
[212] MHA, note 9, s. 20.
[213] R v. Webers 95 CCC (3d) 334; [1994] OJ No 2 (QL); 25 WCB (2d) 305 1994 CanLII 7552 (ON SC).
[214] LTCHA, note 46, s. 32.
[215] Retirement Homes Act, 2010, S.O. 2010, c. 11, s. 70.
[216] HCCA, note 7, ss. 53.1, 54.2.
[217] See R v. Bournewood Community and Mental Health NHS Trust; Ex parte L [1998] All ER 289 for the original decision of the House of Lords, and HL v United Kingdom 40 EHRR 32 for the decision of the European Court of Justice.
[218] Mental Capacity Act, note 44, Sched. A.1, “Hospital and Care Home Residents: Deprivation of Liberty”.
[219] VLRC, Final Report, note 45, Ch. 15.
[220] HCCA, note 7, s. 4(3).
[221] MAG, Guidelines, note 61, I.2.
[222] ARCH Submission 2016, note 178, 8.
[223] AGTA, note 44; Alta Reg 219/2009, s. 3(1)(a).
[224] AGTA, note 44; Alta Reg 219/2009, s. 4(2)(a).
[225] Written submission of the College of Audiologists and Speech Language Pathologists, March 3, 2016, 3.
[226] Dr. Samir K. Sinha, Living Longer, Living Well Report Submitted to the Minister of Health and Long-Term Care and the Minister Responsible for Seniors on recommendations to Inform a Seniors Strategy for Ontario (December 20, 2012),  131, online: http://www.health.gov.on.ca/en/common/ministry/publications/reports/seniors_strategy/docs/seniors_strategy_report.pdf.
[227] Canadian Institute for Health Information, Health Care in Canada 2011: A Focus on Seniors and Aging (Ottawa: 2011), online: https://secure.cihi.ca/free_products/HCIC_2011_seniors_report_en.pdf.
[228] Department for Constitutional Affairs, Mental Capacity Act 2005 Code of Practice (London: TSO, 2007), [COP], 178, online: http://www3.imperial.ac.uk/pls/portallive/docs/1/51771696.PDF.
[229] Robert Pettignano, Lisa Bliss & Sylvia Caley, “The health law partnership: a medical-legal partnership strategically designed to provide a coordinated approach to public health legal services, education, advocacy, evaluation, research, and scholarship”, J Leg Med (2014) 57, 69; Margaret Graham Tebo, “Just What the Doctor Ordered: Hospital on-site legal services programs help address legal ills of children” (2001) 87:10 ABA J 28, 28; Elizabeth Tobin Tyler, Poverty, health and law: readings and cases for medical-legal partnership (Durham, N.C: Carolina Academic Press, 2011)  [Tobin Tyler] 71.
[230]  Tobin Tyler, note 229, 84.
[231] Joel Teitelbaum, “Obligation and Opportunity: Medical-Legal Partnership in the Age of Health Reform” (2014) 35:1 7, pages 11, 21.
[232] Tobin Tyler, note 229, 81.
[233] Pro Bono Law Ontario, Medical-Legal Partnerships for Children: Bridging the Justice Gap, [PBLO], online: https://www.pblo.org/volunteer/medical-legal-partnerships-children/.
[234] Johanna McDonald, “ARCH and the St. Michael’s Hospital Legal Services Program: A Health Justice Initiative”, ARCH Alert: ARCH’s Quarterly Newsletter on Disability and the Law (26 June 2015), [ARCH Alert], online: http://archdisabilitylaw.ca/sites/all/files/ARCH%20Alert%20-%20June%2026%202015%20-%20Text_0.txt.
[235] ARCH Alert, note 234.
[236] Law Society of Upper Canada – Equity Initiatives Department, Report to Convocation: Access to Justice Committee (2011) 14.
[237] Excellent Care for All Act, 2010, S.O. 2010, c. 14, [Excellent Care for All Act] preamble.
[238] Advocacy Centre for the Elderly, Congregate Living and the Law as it Affects Older Adults, Research Paper for the Law Commission of Ontario (Law Commission of Ontario: August 2009), [ACE, Congregate Living],  online: http://www.lco-cdo.org.en/older adults.
[239] LTCHA, note 46, s.3(1).
[240] LTCHA, note 46, s. 3(3).
[241] ACE, Congregate Living, note 238, 18-20, 47, 111.
[242] LTCHA, note 46, ss. 141-143.
[243] Elyse Sunshine, “LHINs: A Primer”, online: www.grllp.com/…/9%20-%20Local%20Health%20Integration%20Netwo [Sunshine]; Paul Barker, “Local Health Integration Networks: The Arrival of Regional Health Authorities In Ontario”(Paper prepared for presentation at the Annual Meeting of the Canadian Political Science Association, University of Saskatchewan, Saskatoon, Saskatchewan, May 2007) 5 [Barker].
[244] Gokal Bhandari & Anne Snowdon, “Design of a patient-centric, service-oriented health care navigation system for a local health integration network” Behaviour and Information Technology, Vol 31 No 3, March 2012,  275; Barker, note 243, 2.
[245] Sunshine, note 243, 2.
[246] ARCH Submission 2016, note 178, 5.
[247] Quality Assurance Measures, O.Reg. 229/10, ss. 5.
[248] National Initiative for the Care of the Elderly, Defining and Measuring Elder Abuse and Neglect: Synthesis of Preparatory Work Required to Measure the Prevalence of Abuse and Neglect of Older Adults in Canada (Toronto: 2012).
[249] BC Adult Abuse/Neglect Prevention Collaborative, Vulnerable Adults and Capability Issues in BC, Provincial Strategy Document (January 2009), 23, online: http://www.bcli.org/sites/default/files/Vanguard (16May09).pdf.
[250] Focus Group, Families of Individuals with Developmental Disabilities, December 3, 2014.
[251] Rae Campbell v. George Xenoyannis and Adrianna Solman, Superior Court of Justice, Small Claims Court, SC – 14-00035494-00, July 2, 2015, 85.
[252] LCO, Framework for the Law as It Affects Older Adults, note 1, 97; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, 85-87.
[253] Online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/incapacity/poa.asp.
[254] SDA, note 8, ss. 10(2), 48(2).
[255] Powers of Attorney Act, C.C.S.M. c. P97 [Manitoba, Powers of Attorney Act], s. 11(1).
[256] Powers of Attorney Act, 2002, S.S. 2002, c. P-20.3, [Saskatchewan, Powers of Attorney Act] s. 12(1)(b), Powers of Attorney Regulations, RRS P-20.3, Reg. 1 Form E.
[257] Enduring Power of Attorney Act, R.S.Y. 2002, c. 73, s 3(1)(b)(iv).
[258] Saskatchewan, Powers of Attorney Act, note 256, s. 12(1).
[259] Power of Attorney Act, R.S.B.C. 1996, c 370, s. 17 [B.C. Powers of Attorney Act].
[260] VLRC, Final Report, note 45, 195
[261] Joffe & Montigny, note 28, 107.
[262] B.C. Powers of Attorney Act, note 259, s. 17.
[263] Law Reform Commission of Nova Scotia, The Power of Attorney Act, Final Report, August 2015, [Nova Scotia LRC, Final Report] 88, online: http://www.lawreform.ns.ca/Downloads/Final_Report_Powers_of_Attorney_Act.pdf.
[264] Western Canada Law Reform Agencies, Enduring Powers of Attorney: Areas for Reform (March 2008) 56.
[265] Nova Scotia LRC, Final Report, note 263, 175.
[266] Nova Scotia LRC, Final Report, note 263, 175.
[267] Nova Scotia LRC, Final Report, note 263, 175.
[268] Zonni v. Zonni Estate, 2006 CarswellOnt 519 (WL Can).
[269] Fareed v. Wood, 2005 CarswellOnt 4591 (WL Can) para 20.
[270] SDA, note 8, s. 42.
[271] For example, in the United Kingdom, appointed deputies are required to regularly submit accounts to the Public Guardian and Trustee: COP, note 228, 8.66.
[272] Joffe & Montigny, note 28, 102-103.
[273] Joffe & Montigny, note 28, 103-104.
[274] Mental Capacity Act, note 44, ss. 49, 58, 61.
[275] COP, note 228, 248
[276] Guardianship and Administration Act 2000 (QLD) [Guardianship and Administration Act], ss. 222-24.
[277] Guardianship and Administration Act, note 276, s. 224.
[278] Guardianship and Administration Act, note 276, s. 224(3).
[279] Guardianship and Administration Act, note 276, s. 227.
[280] ACE, Congregate Living, note 238, 88 and following.
[281] Representation Agreement Act, R.S.B.C. 1996, c. 405, [Representation Agreement Act], s. 12(1).
[282] Representation Agreement Act, note 281, s. 16.
[283] Manitoba, Powers of Attorney Act, note 255, s. 22.
[284] New York, General Obligations Law, 5-1509.
[285] Nova Scotia LRC, Final Report, note 263, 185.
[286] Legal Information Institute, “Trust Protector,” Cornell University Law School, online: https://www.law.cornell.edu/search/site/trust%20protector (last accessed: 1 June 2016).
[287] Matthew Conaglen and Elizabeth Weaver, Protectors as Fiduciaries: Theory and Practice (Oxford: Oxford University Press, 2012) [Conaglen & Weaver]; Susan Cancelosi, Nina A Kohn, Barry Kozak and others, “Teaching Trust & Estates and Elder Law: Pedagogy for the Future” (2012-2013) 117 Penn St L Rev 987; Philip J Renaud, “Protectors in Domestic Trusts” (2007-2008) 27 Est Tr & Pensions J 241; Adam S Hofri- Winogradow, “The Stripping of Trust: A Study in Legal Evolution” (2015) 65 UTLJ 1, 1-47.
[288] Susan Cancelosi, Nina A Kohn, Barry Kozak and others, “Teaching Trust & Estates and Elder Law: Pedagogy for the Future” (2012-2013) 117 Penn St L Rev 987.
[289] Conaglen & Weaver, note 287.
[290] ACE Submission Legal Capacity 2014, note 74, 9.
[291] HCCA, note 7, s. 53(1).
[292] HCCA, note 7, s. 53(2).
[293] HCCA, note 7, s. 32.
[294] HCCA, note 7, ss. 50, 65.
[295] SDA, note 8, s. 20.2.
[296] HCCA, note 7, ss. 33, 51, 66.
[297] HCCA, note 7, ss. 35, 53, 68.
[298] HCCA, note 7, ss. 37, 54, 69.
[299] HCCA, note 7, ss. 35, 52, 67.
[300] HCCA, note 7, ss. 34, 53.1, 54.2. Note that the provisions with respect to secure units are not yet in force.
[301] Communication from the Consent and Capacity Board, June 8, 2016.
[302] For the fiscal year 2011-2012, over 80 per cent of all applications fell into these categories: Consent and Capacity Board, Annual Report 2011 – 2012, 5, online: http://www.ccboard.on.ca/scripts/english/governance/Annual-Reports.asp.
[303] Consent and Capacity Board, Rules of Practice, 23.1 “Evidence” online: http://www.ccboard.on.ca/english/legal/documents/rulesofpractice.pdf.
[304] HCCA, note 7, s. 75.
[305] HCCA, note 7, s. 70.1.
[306] HCCA, note 7, s. 80.
[307] Communication from the Public Guardian and Trustee, June 18, 2015. One hundred and sixty-two court appointments of guardians in 2005 were of persons or institutions other than the PGT; the number  in 2006 was 172; 182 in 2007; 188 in 2008; 175 in 2009; 206 in 2010; 184 in 2011; 250 in 2012; 207 in 2013; and 227 in 2014. Over the same period of time, the court appointed the PGT as guardian in between 10 and 18 cases per year.
[308] SDA, note 8, ss. 39(4), 68(4).
[309] SDA, note 8, ss. 42(7)-(8).
[310] Communication from the Public Guardian and Trustee, May 6, 2014.
[311] MHLC Submission 2014, note 207, 7.
[312] Joffe & Montigny, note 28, 108.
[313] Written submission to the LCO, March 4, 2016.
[314] MHLC Submission 2014, note 207, 6.
[315] Mental Health Legal Committee, written submission to the LCO, March 4, 2016, [MHLC Submission 2016] 7.
[316] MHLC Submission 2016, note 315, 7.
[317] Cuthbertson v. Rasouli, [2013] 3 SCR 341, 2013 SCC 53.
[318] Saara L. Chetner “Can’t Buy Me Love: Lessons Learned from High Conflict Guardianships In Ontario”, Conference Paper, 2010 Canadian Conference on Elder Law (October 29, 2010) online: http://www.lco-cdo.org/en/ccel-2010-papers [Chetner].
[319] Joffe & Montigny, note 28, 107-108
[320] LTCHA, note 46: section 19 imposes a duty on long-term care homes to protect against abuse, and section 20 requires long-term care homes to create and abide by a zero tolerance policy towards abuse and neglect. Section 24 provides for mandatory reporting of certain types of behaviours, including abuse and neglect.
[321] LTCHA, note 46; Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities, 2008, S.O. 2008, c. 14.
[322] ACE Submission Legal Capacity 2014, note 74, 9.
[323] Joffe & Montigny, note 28, 104.
[324] MHLC Submission 2014, note 207, 7.
[325] Joffe & Montigny, note 28, 62-63.
[326] Doug Surtees, “How Goes the Battle? An Exploration of Guardianship Reform” (2012) 50:1 Alta. L. R. 115-27 [Surtees].
[327] Focus Group, Trusts and Estates Lawyers 1, October 14, 2014.
[328] An overview of self-help tools available for people with family disputes can be found in Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity: Final Report (Toronto: February 2013), [LCO, Increasing Access to Family Justice] section B.1, online: http://lco-cdo.org/en/family-law-reform-final-report.
[329] LCO, Increasing Access to Family Justice, note 329, 24-25. There are ongoing initiatives to improve family law processes, although issues remain.
[330] Joffe & Montigny, note 28, 107-108
[331] LCO, Framework for the Law as It Affects Older Adults, note 1, Step 6 “Do the Complaint and Enforcement Mechanisms Respect the Principles?”. Emphasis in the original.
[332] This is consistent with the comprehensive review of evidence on participant satisfaction with courts and tribunals conducted by Moorhead, Sefton and Scanlan, which found that perceptions of the fairness of the process were the most central to satisfaction with courts and tribunals, outweighing even the outcome of the process:

Richard Moorhead, Mark Sefton and Lesley Scanlan, Just Satisfactiom? What Drives Public and Participant Satisfaction with Court and Tribunal Processes, A Review of  Recent Evidence (November 14, 2007) 89.
[333] Rasanen v. Rosemount Instruments Ltd.  (Ont. C.A.) 17 OR (3d) 267; 112 DLR (4th) 683; 175 NR 350; [1994] CarswellNS 154; [1994] FCJ No 1584 (QL); [1994] OJ No 200 (QL); 1 CCEL (2d) 161; 367 APR 19; 68 OAC 284; 94 CLLC 14.
[334] Alison Christou, “The ‘Good’ Tribunal  Member –‐ an Aretaic Approach to Administrative Tribunal Practice”  (2009) 28:2 Univ Qld Law J 339, 342-43; Stephen H Legomsky, Specialized justice : courts, administrative tribunals, and a cross–‐national theory of specialization (New York: Oxford University Press, 1990) 10–12.
[335] Terry Carney & David Tait, The Adult Guardianship Experiment: Tribunals and Popular Justice (Sydney: The Federation Press, 1997) 197.
[336] VLRC, Final Report, note 45; QLRC R67, note 56, Chapter 20.
[337] VLRC, Final Report, note 45, 485.
[338] LCO, Increasing Access to Family Justice, note 329.
[339] Judith McCormack, “Nimble Justice: Revitalizing Administrative Tribunals in a Climate of Rapid Change” (1995) 59 Sask Law Review 385 at 5-6, 9-10.
[340] A helpful discussion may be found in Wendi J Mackay, “Administrative Institutions from Principles to Practice: Guidelines for Review and Design” (2006) 19:1 Can J Admin Law Pract 63. Also see Lorne Sossin & Jamie Baxter, “Ontario’s Administrative Tribunal Clusters: A Glass Half Full or Half Empty for Administrative Justice? (2012) online: http://digitalcommons.osgoode.yorku.ca/all_papers/28, 10–11.
[341] Council of Australasian Tribunals, International Framework for Tribunal Excellence (April 2014) 18.
[342] Surtees, note 326.
[343] See JG (CCB) (2012) CanLii 48963; JD (CCB) (2011) CanLii 86366
[344] City of Toronto, Stakeholder Consultation Results, note 94, 9.
[345] ACE Submission 2016, note 85, 13, also see MHLC Submission 2016, note 315, 6.
[346] New Zealand Law Reform Commission, Tribunals in New Zealand (January 2008) 2.67, online: http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20IP6.pdf
[347] Andrew Leggatt, Tribunals for Users: One System, One Service, Report of the Review of Tribunals, March 2001, para. 1.2 [Leggatt Report].
[348] Statutory Powers Procedures Act, R.S.O. 1990, c. 22.
[349] The Adjudicative Tribunals Accountability, Governance and Administration Act, S.O. 2009, c. 33, Sched. 55, s. 1.
[350] Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 SCR 31, at para. 29, per McLachlin C.J.
[351] Re Residential Tenancies Act, [1981] 1 S.C.R. 714; Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220.
[352] Patrick J. Monahan and Byron Shaw, Constitutional Law, 4th Edition, (Toronto: Irwin Law, 2013) 154 [Monahan & Shaw].
[353] Peter W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 2015) 7.49-7.50.
[354] Monahan & Shaw, note 352, 155.
[355] Criminal Code, R.S.C. 1985, c. c-46, s. 672.4(1).
[356] Competition Tribunal Act, R.S.C. 1985, c. 19(2nd Supp), s. 3(2), 4(1).
[357] MHLC Submission 2016, note 315, 7.
[358] Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 177(1) [Residential Tenancies Act].
[359] Social Justice Tribunals, Annual Report 2013 – 2014, online: http://www.sjto.gov.on.ca/documents/sjto/2013-14%20Annual%20Report.html#ltb-2.
[360] Legal Aid Ontario, online: http://www.legalaid.on.ca/en/getting/dutycounsel_tenant.asp.
[361] ACE Submission Legal Capacity 2016, note 84, 15.
[362] Human Rights Code, note 87, ss. 45.2, 45.3.
[363] Residential Tenancies Act, note 358, s. 204(1).
[364] Chetner, note 318, 2.
[365] Chetner, note 318, 21.
[366] City of Toronto, Stakeholder Consultation Results, note 94, 9.
[367] SDA, note 8, s. 88.
[368] Canadian Centre for Elder Law, Elder and Guardianship Mediation Report, (Vancouver, B.C.: 2011) [CCEL, Elder and Guardianship Mediation] 32, online: http://www.bcli.org/sites/default/files/EGM_Report_Jan_30_2012.pdf.  Note that this Report was developed in anticipated of the inclusion of mandatory mediation in British Columbia’s Adult Guardianship Act. However, the relevant amendments from S.B.C. 2007, Bill 29, Adult Guardianship and Planning Statutes Amendment Act, have not been proclaimed in force.
[369] ACE Submission 2016, note 85, 18.
[370] CCEL, Elder and Guardianship Mediation, note 370, 134.
[371] CCEL, Elder and Guardianship Mediation, note 370, Chapter 7.
[372] MHLC Submission 2014, note 207, 6.
[373] A helpful review of common forms of dispute resolution can be found in the Dispute Resolution Guide prepared by the Department of Justice of the Government of Canada, available online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/intro.html.
[374] Workplace Safety and Insurance Appeals Tribunal, “Mediation” online: http://www.wsiat.on.ca/english/appeal/mediation.htm .
[375] Human Rights Tribunal of Ontario, Rules of Procedure (May 2016) online: http://www.sjto.gov.on.ca/documents/hrto/Practice%20Directions/HRTO%20Rules%20of%20Procedure.html#15 [HRTO Rules].
[376] Safety, Licensing, Appeals and Standards Tribunals Ontario “Automobile and Accident Benefit Services” online:  http://www.slasto.gov.on.ca/en/AABS/Pages/default.aspx; Safety Licensing, Appeals and Standards Tribunals Ontario. Rules of Practice and Procedure, 14.2, 20, online: http://www.sse.gov.on.ca/lat/english/Documents/Rules%20of%20Practice/LAT%20Rules%20of%20Practice%20and%20Procedure%20Version%201%20April%201%202016.pdf [SLASTO Rules].
[377] ACE Submission Legal Capacity 2016, note 84, 19.
[378] Willson A McTavish, “The Office of the Official Guardian” (1988) 7 Advocates Soc J 2, 23-25. In Wu Estate v. Zurich Insurance Co, the Ontario Court of Appeal noted that the requirement in Rule 7 derives from the court’s parens patriae jurisdiction: the duty of the court is to examine the settlement and ensure that it is in the best interests of the party under disability [2006] 268 DLR (4th) 670, para 10.
[379] Lang v. Ontario (Community and Social Services), 2005 HRTO 5, para 8, 52, 57, 63, 64, 70.
[380] Tess Sheldon & Ivana Petricone, Addressing the Capacity of Parties before Ontario’s Administrative Tribunals: Respecting Autonomy, Protecting Fairness, (Toronto: ARCH Disability Law Centre, 2009) 44.
[381] Chetner, note 318, 20.
[382] Consent and Capacity Board, Policy Guideline 2: Ordering Counsel Where the Subject of an Application Does Not Have Legal Representation (September 2007) online: http://www.ccboard.on.ca/english/legal/documents/policyguideline2.pdf [CCB, Policy Guideline 2].
[383] CCB, Policy Guideline 2, note 382.
[384] During the LCO’s public consultations, some health practitioners communicated their concerns that patients very often have legal representation during a hearing while it is rare for them to have access to legal assistance: some felt that this creates some imbalance in the proceedings, while others felt that it added to the challenges of their role during a hearing.
[385] Marshall Swadron, Representing the Incapable Client in Capacity Proceeeding, (Law Society of Upper Canada, 12 Annual Estates and Trusts Summit, November 13, 2009) [Swadron] 4-5.
[386] Written submission to the LCO from Jan Goddard, July 1 2016 [Goddard].
[387] Banton v Banton (1998), 164 D.L.R. (4th) 176 (Ont. Ct. Gen Div.), 218.
[388] Written submission to the LCO from Jan Goddard, July 1 2016 [Goddard].
[389] ACE Submission 2016, note 85, 16.
[390] Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 13.
[391] Legal Aid Ontario, Mental Health Strategy Consultation Paper (November 2013) 13, [LAO, Mental Health Strategy] online: http://legalaid.on.ca/en/policy/downloads/Mental%20Health%20Strategy%20consultation%20paper.pdf?t=1429543918228.
[392] Ontario Ministry of Finance, 2014 Ontario Budget, online: http://www.fin.gov.on.ca/en/budget/ontariobudgets/2014/ch1d.html#s1-71.
[393] Ontario Ministry of Finance, 2014 Ontario Budget, note 350.
[394] Legal Aid Ontario, 2015 Questions and Answers: Legal Eligibility, [LAO, Legal Eligibility], online: http://www.legalaid.on.ca/en/info/legaleligibility_qanda.asp.
[395] LAO, Legal Eligibility, note 394.
[396] LAO, Legal Eligibility, note 394.
[397]  LAO, Mental Health Strategy, note 391, 19.
[398] LAO, Mental Health Strategy, note 391, 19.
[399] LAO, Mental Health Strategy, note 391, 38.
[400] Ziskos v. Miksche, 2007 CanLII 46711 (ONSC) , para 227, 229.
[401] Guardianship and Administration Act, note 285, s. 16.
[402] VLRC, Final Report, note 45, 447.
[403] VLRC, Final Report, note 45, 455.
[404] Guardianship and Administration Act, note 285, s. 180.
[405] Guardianship and Administration Act, note 285, s. 183(1).
[406] Guardianship and Administration Act, note 285, s. 193.
[407] QLRC R67, note 56, Vol 4, 176.
[408] Mental Capacity Act, note 44, s. 58(1).
[409] COP, note 228, 250-51.
[410] ACE Submission 2016, note 85, 14-15.
[411] SDA, note 8, ss. 39, 68.
[412] Communication from the Public Guardian and Trustee, May 6, 2014. According to the figures provided, there were 3975 open court-appointed guardianships for property (318 of these had the PGT as guardian; the remainder were private). There were 12, 858 statutory guardianships: 2379 private statutory guardianships, 4881 held by the PGT under s. 15 of the SDA; 3657 held by the PGT under s. 16 of the SDA; and 31 held by the PGT under s. 19 of the SDA.
[413] Capacity Assessment Reg, note 148, ss. 2(1)(a), 2(2).
[414] SDA, note 8, ss. 78(1)-(3).
[415] SDA, note 8, ss. 78(1)-(3).
[416] SDA, note 8, s. 78(2).
[417] SDA, note 8, ss. 78(5), 16(4).
[418] SDA, note 8, ss. 16(5)-(6).
[419] MHA, note 9, s. 59(2).
[420] Psychiatric Patient Advocate Office, Annual Report 2011: Rights Protection in a Time of Change (Toronto: 2011), 6, online: www.sse.gov.on.ca/mohltc/ppao/en/Documents/PPAO%20Annual%20Report%202011.pdf.
[421] Fram Report, note 14, 104.
[422] SDA, note 8, ss. 24, 57.
[423] SDA, note 8, s. 59.
[424] SDA, note 8, s. 70.
[425] SDA, note 8, s. 69.
[426] Summary disposition applications require the filing of two pieces of evidence containing an opinion that the adult is incapable. At least one of these must contain an opinion that it is necessary for decisions to be made on the adult’s behalf and at least one must be undertaken by a capacity assessor. See SDA, note 8, ss. 72, 77-78.
[427] SDA, note 8, s. 69.
[428] Office of the Public Guardian and Trustee, “Role of the Office of the Public Guardian and Trustee”, Paper prepared for the Law Society of Upper Canada Program, Advocacy for the Senior Client (September 24, 2003).
[429] SDA, note 8, ss. 72-77.
[430] Consultation with Brendon Pooran.
[431] Consultation with Saara Chetner and Risa Stone (Counsel for the Office of the Public Guardian and Trustee).
[432] Law Society of Upper Canada, “How to Have a Guardian of Property Appointed through Court Application”, online: http://www.lsuc.on.ca/For-Lawyers/Manage-Your-Practice/Practice-Area/Trusts-and-Estates-Law/How-to-Have-a-Guardian-of-Property-Appointed-through-Court-Application/.
[433] SDA, note 8, ss. 25(1), 58(1).
[434] SDA, note 8, ss. 24, 57.
[435] See for example, Covello v. Sturino [2007] O.J. No 2306 158; Deschamps, note 176.
[436] Koch (Re), note 161.
[437] Ontario, Legislative Assembly, Committee Transcripts: Standing Committee on Administration of Justice, “Bill 74, Advocacy Act, 1992, and Companion Legislation” (October 5, 1992). A “Ulysses contract” allows a person creating a power of attorney for personal care to waive rights to challenge a finding of incapacity or to permit the use of force to facilitate treatment. Not surprisingly, the requirements for the creation of a “Ulysses contract” are stringent: see SDA, note 8, s. 50; HCCA, note 7, s. 32(2).
[438] Michael Bach & Lana Kerzner, Fulfilling the Promise, Ensuring Alternatives to Guardianship, unpublished paper, received March 2014, 17-18.
[439] MAG, Guidelines, note 61, Part VI.
[440] Webb, note 33, 6.
[441] Data for the 2013/2014 fiscal year, provided by the Public Guardian and Trustee. This figure should be treated with caution, however: while guardians have a duty to inform the PGT’s registry when a guardianship is terminated, the PGT does not itself actively monitor the registry.
[442] Surtees, note 326, 115-27.
[443] Joffe & Montigny, note 28, 62.
[444] MAG, Guidelines, note 61, Part VI.
[445] Koch (Re), note 161.
[446] [1997] O.J. No. 4894 (Ont. Gen. Div.).
[447] Deschamps, note 176, para. 11.
[448] Coalition on Alternatives to Guardianship, Brief, note 31, 28.
[449] Coalition on Alternatives to Guardianship, Brief, note 31, 28.
[450] Mental Capacity Act, note 44, c.9, s. 49.
[451] Court of Protection, Rules of Procedure 2007, Rule 117, Reports Under Section 49 of the Act.
[452] Guardianship and Administration Act, note 285, s 16(1)(d); VLRC, Final Report, note 45, 470.
[453] Office of the Public Advocate, Annual Report 2013-2014, 16-17, online: http://www.publicadvocate.vic.gov.au/our-services/publications-forms/strategic-plans-and-annual-reports/18-opa-annual-report-2013-2014.
[454]Utah Courts, “Court Visitor Volunteers”, online: https://www.utcourts.gov/visitor/.
[455] Oregon provides an example of a more formalized Court Visitor program. The Court Visitor’s role is to gather information pertaining to whether guardianship is necessary, and if so, whether the proposed guardian is suitable. The Visitor must interview the individual who is the subject of the application, the proposed guardian, other family members and other individuals identified by the court, and provide a written report with recommendations in the prescribed format within 15 days of appointment. See for example, Deschutes County Circuit Court, Court Visitor Information and Instructions, online: http://courts.oregon.gov/Deschutes/docs/form/court_visitor/VisitorInstructions.pdf.
[456] Pamela B. Teaster and others, “Staff Service and Volunteer Staff Service Models for Public Guardianship and “Alternatives” Services: Who Is Served and with What Outcomes?” 5 J. Of Ethics L. & Aging 131 (1999) 142-145.
[457] Human Rights Code, note 87, s. 44.
[458] Residential Tenancies Act, note 358, s. 201(1).
[459] R. v. Gladue, [1999] 1 S.C.R. 688.
[460] A helpful overview can be found in Sebastien April and Mylene Magrinelli Orsi, Gladue Practices in the Provinces and Territories (Research and Statistics Division, Department of Justice Canada, 2013).
[461] Legal Services Society, Gladue Primer (February 2011), 6-7.
[462] “Gladue Report Services to expand in Ontario (June 27, 2014), online: http://www.legalaid.on.ca/en/news/newsarchive/1406-26_gladuereportservices.asp; “Legal Aid Ontario expands Gladue Funding”, March 12, 2015, http://www.legalaid.on.ca/en/news/newsarchive/1503-12_newgladuefunding.asp; “Gladue Report Services to Expand in Ontario’s North” (November 27, 2014), online: http://www.legalaid.on.ca/en/news/newsarchive/1411-25_gladuereportservices.asp.
[463] The Ontario Human Rights Tribunal has made significant use of active adjudication in appropriate cases. See: Human Rights Code, note 87, s. 43(3); Ontario Human Rights Tribunal, Rules of Procedure, 1.6, 1.7, online: http://www.sjto.gov.on.ca/documents/hrto/Practice%20Directions/HRTO%20Rules%20of%20Procedure.html#1; Pinto Report, note 54, section 6(a).
[464] J.A. Jolowicz, “Taking a Reflective Turn: Non-Adversarial Justice and Mental Health Review Tribunals” (2011) 37 Monash UL Rev 81, 289.
[465] Pinto Report, note 54, section 6(a).
[466] R v LePage 2006 CanLII 37775 (ONCA) 22.
[467] For Alberta’s previous process, see Dependent Adults Act, R.S.A. 2000, c.D-11, ss.70-72. For its current court-based process, see AGTA, note 44, Divisions 3 and 4.
[468] California Probate Code §2920(a)(1).
[469] California Probate Code, §2952-2955.
[470] SDA, note 8, ss.27, 62.
[471] SDA, note 8, ss. 24(2.1), 55(2.2).
[472] The application form for referral can be found at http://humanservices.alberta.ca/documents/PT0002.pdf.
[473] The Public Guardian and Trustee Act, S.S. 1983, c. P-36-.3, s. 29(2) [The Public Guardian and Trustee Act]; The Public Guardian and Trustee Regulations, R.R.S. c. P-36.3, Reg. 1, s. 27(1). See also Saskatchewan Ministry of Justice, “Capacity and Incapacity Forms” (2012), online: http://www.justice.gov.sk.ca/Capacity-Incapacity-Forms. Restrictions exist on who can give a certificate, see: The Mental Health Services Act, S.S. 1984-85-86, c. M-13.1, s. 15.
[474] The Public Guardian and Trustee Act, note 487, s. 29(3); Saskatchewan Ministry of Justice and Attorney General, Substitute Decision Making — A Framework (Regina: Public Guardian and Trustee, 2011), 9, online: http://www.justice.gov.sk.ca/PGT-sdm.
[475] SDA, note 8,  s. 20.1
[476] Guardianship and Administration Act, note 285, ss. 61(1), 63(1).
[477] VLRC, Final Report, note 45, 243.
[478] AGTA, note 44, ss. 33(8), 54(7).
[479] Adult Guardianship and Co-Decision-making Act, note 44, s. 40(3).
[480] Joffe & Montigny, note 28, 98.
[481] Joffe & Montigny, note 28, 98-99.
[482] Joffe & Montigny note 28, 98.
[483] Joffe & Montigny note 28, 97-98.
[484] AGTA, note 44, s. 54(5).
[485] VLRC, Final Report, note 45, 192.
[486] VLRC, Final Report, note 45, 264.
[487] Surtees, note 326, 115-127.
[488] Irish Act 2015, note 44, s. 38(2).
[489] LCO, RDSP Final Report, note 2.
[490] HCCA, note 7, ss. 33, 51
[491] Figures provided by the Office of the Public Guardian and Trustee, based on the Register of Guardians maintained by the Public Guardian and Trustee as required by Regulation 99/96 under the Substitute Decisions Act.
[492] Office of the Public Guardian and Trustee, The Role of the Office of the Public Guardian and Trustee (Queen’s Printer for Ontario, 2006, reprinted 2013), [OPGT, The Role] 3.
[493] Figures provided by the Office of the Public Guardian and Trustee, based on the Register of Guardians maintained by the Public Guardian and Trustee as required by Regulation 99/96 under the Substitute Decisions Act.
[494] Figures provided by the Office of the Public Guardian and Trustee, based on the Register of Guardians maintained by the Public Guardian and Trustee as required by Regulation 99/96 under the Substitute Decisions Act.
[495] Office of the Public Guardian and Trustee, Annual Report 2011 – 2012, [OPGT, Annual Report 2011 – 2012] 3, online: http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/2011report.pdf.
[496] OPGT, Annual Report 2011 – 2012, note 495, 5.
[497] LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, 83.
[498] LCO, Framework for the Law as It Affects Older Adults, note 1, 94.
[499] LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, 4; LCO, Framework for the Law as It Affects Older Adults, note 1, 3.
[500] SDA, note 8, s. 17(4)-(5).
[501] The exception to this being for summary disposition applications, which are uncontested.
[502] SDA, note 8, ss. 24, 46(2), 57.
[503] See, for example, Janet Phelan “Funding Shortage Inhibiting PFB’s Effectiveness”, San Bernardino County Sentinal, November 19, 2010, online: http://www.estateofdenial.com/2010/11/20/californias-professional-fiduciaries-bureau-appears-ineffective-in-its-mission/; “Law-makers take first step to curb abuse by professional guardians”, online: http://www.myelderadvocate.com/news/story/lawmakers-take-%E2%80%98first-step%E2%80%9D-to-curb-abuse-by-professional-guardians; “Viewers claim guardians abuse elderly’s rights”, online: http://www.local10.com/news/call-christina-viewers-claim-guardians-abuse-elderlys-rights/32658868; National Association to Stop Guardian Abuse, online: http://stopguardianabuse.org/; Colton Lochhead, “Clark County’s private guardians may protect — or just steal and abuse”,  Los Vegas Review Journal, online: http://www.reviewjournal.com/news/las-vegas/clark-county-s-private-guardians-may-protect-or-just-steal-and-abuse.
[504] ACE Submission Legal Capacity 2016, note 84, 11-12.
[505] One author estimates that one-quarter of all guardianships in the U.S. are provided in this way: Alison Barnes, “The Virtues of Corporate and Professional Guardians”, 2002 Stetson Law Review, Vol. XXXI, 941-1025, 942.
[506] National Guardianship Association, online: www.guardianship.org.
[507] California Professional Fiduciaries Act § 6510 [CPFA] § 6538(a).
[508] Tex Gov’t Code Ann § 152.101 (West 2014).
[509] Fla Stat Ann § 744.3135 (West 2015); see also Fla Stat Ann §§ 744.1085(3), 744.1085(4) (West 2015.).
[510] CPFA, note 533, § 6536.
[511] Tex Gov’t Code Ann § 152.101 (West 2014).
[512] Fla Stat Ann § 744.1085(2) (West 2015).
[513] Wash Rev. Code Ann 11.88.100 (West).
[514] Professional Fiduciary Association of California, online: http://www.pfac-pro.org.
[515] CPFA, note 507\, § 6580(c).
[516] Fla Stat Ann § 744.1085(3) (West 2015); see also Florida State Guardianship Association, “Guardianship Training,” online: www.floridaguardians.com/education/8-hour-family-course.
[517] CPFA, note 533, § 6538(b).
[518] Professional Fiduciaries Bureau, “Pre-Licensing Education Information”, online: http://www.fiduciary.ca.gov/forms_pubs/prelicreq.shtml.
[519] The registration form may be found at Department of Elder Affairs, State of Florida, “Professional Guardian Registration Status,” online: http://elderaffairs.state.fl.us/doea/spgo_professional.php.
[520] Fla Stat Ann § 744.3678 and 744.3675 (West 2015).
[521] CPFA, note 533, § 6560.
[522] CPFA, note 533, § 6561.
[523] Texas Judicial Branch, Judicial Branch Certification Commission, Guardianship Certification, Forms, “Renewal Applications,” online: http://www.txcourts.gov/media/928662/Applicant-Checklist-Renewal-04-03-15.pdf ; see also http://www.txcourts.gov/media/890873/Renewal-App-GC.pdf.
[524] Fla Stat Ann § 744.361(9) (West 2015).
[525] CPFA, note 533, § 6518, 6520.
[526] Manitoba Law Reform Commission, Regulating Professions and Occupations, October 1994, [Manitoba LRC, Regulating Professions] online: http://www.manitobalawreform.ca/pubs/pdf/archives/84-full_report.pdf.
[527] Manitoba LRC, Regulating Professions, note 526, 19.
[528] See also Canada Competition Bureau Report, Self-regulated professions:  Balancing competition and regulation (2007) which also recognizes that regulation adversely affects competition and thereby limits choice and higher price for service for consumers.
[529] Manitoba LRC, Regulating Professions, note 526, 24.
[530] Manitoba LRC, Regulating Professions, note 526, 48.
[531] Regulated Health Professions Act, 1991, S.O. 1991, c. 18 [RHPA], s. 11(2)(a).
[532] Health Professionals Regulatory Advisory Council, Regulation of a New Health Profession under the Regulated Health Professions Act (RHPA), 1991 – Criteria and Process (July 2011), [HPRAC], online: http://www.hprac.org/en/reports/resources/RegulatingaNewProfession_CriteriaProcess_July2011.pdf.
[533]  HPRAC, note 532.
[534] CPFA, note 507, § 6510 [CPFA].
[535] Tex. Gov’t Code Ann § 152 (West 2014).
[536] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Schedule B, s. 12(1).
[537] See in particular the Supporting Homeless Seniors Program, in which third party administrators, including not only family and friends, but also municipalities, registered charitable organizations, and non-profit organizations act on behalf of vulnerable seniors to receive CPP, OAS or Guaranteed Income Supplement benefits: Service Canada, Supporting Homeless Seniors Program – Overview, [Supporting Homeless Seniors], online: Service Canada http://www.servicecanada.gc.ca/eng/audiences/partners/thirdparty.shtml.
[538] Supporting Homeless Seniors, note 537.
[539] The Bloom Group, “About – Overview”, online: http://www.thebloomgroup.org/about/overview/.
[540] Interview with Lesley Anderson, Bloom Group, July 22, 2015.
[541] The Bloom Group, Annual Report 2013-2014, http://www.thebloomgroup.org/annualreport/.
[542] The Bloom Group, “Our Work”, online: http://www.thebloomgroup.org/our-work/adult-guardianship/.
[543] ACE Submission Legal Capacity 2016, note 84, 12.
[544] Canadian Hearing Society “Services – General Support Services”, online: http://www.chs.ca/services/general-support-services.
[545] City of Toronto, Stakeholder Consultation Results, note 94, 11.
[546] Pamela B. Teaster, Erica F Wood, Winsor C. Schmidt Junior, Susan A. Lawrence, Public Guardianship After 25 Years: In the Best Interests of Incapacitated People? National Study of Public Guardianship, Phase II Report (American Bar Association: 2007) [Teaster and others, Public Guardianship After 25 Years] 90, online: http://www.americanbar.org/content/dam/aba/migrated/aging/PublicDocuments/wards_state_full_rep_11_15_07.authcheckdam.pdf.
[547] City of Toronto, Stakeholder Consultation Results, note 94, 12.
[548] LCO, RDSP Final Report, note 2, 66.
[549] ARCH Submission 2016, note 178, 13.
[550] See, for example, Guardianship Associates of Utah, which is the only non-profit organization in that state providing direct guardianship services. It also assists families in obtaining guardianship of their family members and provides public education on guardianship issues: http://guardianshiputah.org/.
[551] Saskatchewan, Powers of Attorney Act, note 265, s. 8.
[552] Law Reform Commission of Saskatchewan, Consultation Paper on Enduring Powers of Attorney, (Saskatoon: January 2001), 28, online: http://www.lawreformcommission.sk.ca/Papers.htm.
[553] Financial Institutions Act, RSBC 1996, c. 141, “Trust and Deposit Business Exemption Regulation”, BC Reg 173/2008, s. 2.
[554] Pamela B. Teaster and others, The Florida Public Guardian Programs: An Evaluation of Program Status and Outcomes, Report for the Florida Department of Elder Affairs Statewide Public Guardianship Office (August 2009) [Teaster and others, The Florida Public Guardian Programs] 11.
[555] Teaster and others, The Florida Public Guardian Programs, note 554, 11.
[556] Teaster and others, The Florida Public Guardian Programs, note 554, 10.
[557] Teaster and others, Public Guardianship After 25 Years, note 546, 91-92.
[558] Adult Guardianship and Co-decision-making Act, note 44, s. 30.
[559] Interview with Doug Surtees, April 8, 2015.
[560] COP, note 228, 8.33.
[561] Office of the Public Guardian and Trustee, “Panel Deputy Diversification Project”, 20 February 2014, online: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB0QFjAA&url=http%3A%2F%2Fwww.solicitorsfortheelderly.com%2Fassets%2Fmedia%2FOPG_-_Panel_Deputy_Diversification_Project_PP.ppt&ei=XXklVdnEHMTMsAWwtIGYBQ&usg=AFQjCNFTyae7MTt3utgxQvWNx9YBllqJ0g&sig2=Q8gRa2ZyXbYJpi0XxnwmLw&bvm=bv.90237346,d.b2w.
[562] Office of the Public Guardian, Deputy Standards – Professional deputies (July 2015) online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/442272/ProDeputyStandardsFINALv3.pdf.
[563]Teaster and others, Public Guardianship After 25 Years, note 546, 105.
[564] http://www.nicenet.ca/.
[565] LCO, RDSP Final Report, note 2, section IV.D.1.
[566] Written submission to the LCO from ARCH Disability Law Centre, October 31, 2014, 7-9 [ARCH Submission 2014].
[567] ACE Submission Legal Capacity 2014, note 74, 9.
[568] OBIA Submission, note 183.
[569] Wahl, Dykeman & Gray, note 184, 250-53; Wahl, Dykeman & Walton, note 193, pinpoint cite.
[570] LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, Step 5 “Do the Processes Under the Law Respect the Principles?”
[571] LCO, Framework for the Law as It Affects Older Adults, note 1, 159; LCO, Framework for the Law as It Affects Persons with Disabilities, note 1, 54.
[572] ARCH Submission 2014, note 566, 13.
[573] City of Toronto, Stakeholder Consultation Results, note 94, 4 and 12-13.
[574] Irish Act 2015, note 44, s. 95 (1)(a).
[575] Guardianship and Administration Act , note 285, s. 15(c).
[576] VLRC, Final Report, note 45, 448.
[577]  Provincial Advocate for Children and Youth Act, 2007, S.O. 2007, c. 9, s. 1; AODA, note 55, s. 32(3); Human Rights Code, note 87, s. 29
[578] Wahl, Dykeman & Gray, note 184.  In a 2016 paper commissioned for the project on Improving the Last Stages of Life, Wahl, Dykeman and Walton recommended a systems model for achieving this goal, which includes clarifying terminology, a broad approach to education and training that involves multiple stakeholder institutions, an emphasis on ensuring the accuracy of legal tools, and leveraging existing institutions to drive stronger enforcement: Wahl, Dykeman & Walton, note 194, 77 and following
[579] Karen Cohl and George Thompson, Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services (Law Foundation of Ontario: December 2008), online: www.lawfoundation.on.ca.
[580] Joffe & Montigny, note 28, 100-101.
[581] VLRC, Final Report, note 45, 413.
[582] 46 OR (3d) 271; 180 DLR (4th) 72; [1999] OJ No 4236 (QL); 126 OAC 216; 70 CRR (2d) 29.
[583] A.M. v. Benes, 1998 CanLII 14770 (ON SC)
[584] City of Toronto, Stakeholder Consultation Results, note 94, 14.
[585] Health Professions Regulatory Advisory Council, Adjusting the Balance: A review of the Regulated Health Professions Act, 2001, 1, 11, online: http://www.hprac.org/en/reports/resources/RHPA_Review_2001_Report.pdf.
[586] Health Professions Procedural Code, Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched 2 [Health Professions Procedural Code], s.2.1.
[587] Health Professions Procedural Code, note 586, s. 3(1).
[588] Joan M Gilmour, Merrijoy Kelner and Beverly Wellman, “Opening the Door to Complementary and Alternative Medicine: Self-Regulation in Ontario” (2003) 24 Law & Policy, 154.
[589] RHPA, note 531, s. 1.
[590] Zubin Austin and others, “Continuous Professional Development: The Ontario Experience in Professional Self-regulation through quality assurance and peer review”, (2003) 67 American Journal of Pharmaceutical Education,  227. Marianne Tompkins & Denise Paquette-Frenette, “Learning Portfolio Models in Health Regulatory Colleges of Ontario, Canada” (2010) Journal of Continuing Education in the Health Professions [Tompkins & Paquette-Frenette] 30, 57.
[591] Catherine J Schiller, “Self-regulation of the nursing profession: Focus on four Canadian provinces” (2015) Journal of Nursing Education and Practice 5, 101.
[592] Shannon L Sibbald and others, “Ontario primary care reform and quality improvement activities: An environmental scan (2013) BMC Health Services Research 13, 2.
[593] Tompkins & Paquette-Frenette, note 590, 60.
[594] College of Audiologists and Speech Language Pathologists, Consent Tool, online: https://members.caslpo.com/public/elearning/consent.html.