[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