For several decades, persons with disabilities, disability organizations and other communities of advocates have criticized substitute decision-making. These communities have questioned whether substitute decision-making is the most appropriate approach to dealing with situations in which people with intellectual, cognitive, mental health, psychosocial and other disabilities appear to be ‘incapable’ of making their own life decisions. The negotiation and passage of the Convention on the Rights of Persons with Disabilities (“CRPD”) provided an opportunity for the global disability community to consider the issue of legal capacity and substitute decision-making. Article 12 of the CRPD recognizes the right to legal capacity on an equal basis with others without discrimination on the basis of disability, and requires states to ensure that persons with disabilities have access to the supports they need in order to enjoy and exercise their legal capacity. Since the CRPD entered into force in 2008, there have been renewed calls to critically evaluate existing substitute decision-making regimes, and to consider alternatives to substitute decision-making that would better accord with the rights and principles provided for in the Convention.
There are several types of substitute decision-making regimes that operate in Ontario, including guardians of property or personal care, substitute decision-makers who are appointed under the Health Care Consent Act, and personal appointments such as attorneys for property or personal care. This report focuses on Ontario guardianships. Usually guardianships are created after a person is found to lack capacity to make his/her own decisions. A guardian is the ultimate substitute decision-maker, since s/he generally has complete authority to make specific decisions on behalf of the ‘incapable’ person. Due to the manner in which guardianships are created, and the broad-reaching nature of guardians’ powers and obligations, guardianships have the potential to significantly impact the rights of persons with disabilities who have capacity issues. These are fundamental human rights, including the right to legal capacity, the right to self-determination, and the right to substantive equality. Consequently, it is vital that guardians carry out their roles in a manner that promotes and protects the rights of persons with disabilities.
This report delves into the issue of accountability for the actions of guardians in Ontario. We consider whether the monitoring and accountability mechanisms that currently exist are sufficient to truly promote and protect the rights of persons with disabilities who are subject to guardianship.
In chapter II we begin by developing an analytical approach, which we call a rights-based principled approach to legal capacity. This approach draws on the Convention on the Rights of Persons with Disabilities and the Law Commission of Ontario’s Framework for the Law As it Affects Persons with Disabilities to describe the rights of persons with disabilities that are impacted by substitute decision-making regimes. Next, we describe and analyze the existing legal framework for monitoring and overseeing guardianships in Ontario. Many of the clients who we serve at ARCH are subject to guardianships. Chapter IV describes and analyzes a series of case examples drawn from ARCH’s work with persons with disabilities, disability organizations and the broader disability community. These case examples serve to ground the report by providing real life examples that illustrate how guardianships impact the rights of persons with disabilities in practical ways. Chapter V describes selected mechanisms for monitoring and overseeing substitute decision-makers in jurisdictions outside of Ontario. We conclude the report by considering opportunities and options for reforming Ontario guardianships in a manner that promotes and protects the rights of persons with disabilities.
A. About ARCH Disability Law Centre
ARCH Disability Law Centre (“ARCH”) is a specialty community legal clinic dedicated to advancing the equality rights of people with disabilities. ARCH provides legal services to help Ontarians with disabilities live with dignity and participate fully in our communities. ARCH provides free and confidential legal advice and information to people with disabilities in Ontario. We provide legal representation to people with disabilities whose cases fall within our priority areas of work and who meet Legal Aid Ontario’s financial eligibility guidelines. We work with Ontarians with disabilities and the disability community on community development, law reform and policy initiatives. We also provide public legal education to people with disabilities and continuing legal education to the legal community.
ARCH has extensive experience working on legal capacity and the rights of persons with disabilities. This experience is broad and is based upon our contacts with people with disabilities themselves, their families and support people, advocates and community organizations. Our Board of Directors has identified legal capacity as a priority area of work for ARCH. We provide legal information and advice to persons with disabilities about the law related to guardianship and substitute decision-making in Ontario. We represent persons with disabilities who have concerns or disputes with their substitute decision-makers, and we assist individuals to reassert their legal capacity. We also have experience working in situations where others erroneously assume that a person lacks capacity because of their disability or medication. ARCH has undertaken a number of law reform projects that deal with legal capacity. We have also conducted extensive public legal education to inform persons with disabilities about capacity law and how to defend their rights and protect their autonomy.
ARCH’s perspective on guardianship has a different focus than much of the available literature. ARCH does not work with elderly clients, so issues of elder abuse and financial mismanagement, which are common themes in much of the literature, are not dominant concerns in our practice. Instead, many of our clients are persons who may experience temporary periods of incapacity due to disability, serious injuries, or poor health. As a result, many of our clients who are subject to guardianship may experience fluctuating capacity or periods of intermittent capacity. Other clients may require assistance with decision-making on a more permanent basis. Many of our clients seek greater freedom and independence in the management of their financial and other affairs. Often they are persons who wish to re-assert their autonomy and terminate their guardianship.
In this report we use the term ‘incapable’ persons to refer to persons who have been found, via a legal or administrative process, to be legally incapable of making certain decisions for themselves. Throughout our report, the word ‘incapable’ is written in quotations. The meaning of legal capacity to make one’s own decisions is a subject about which there is some debate. There are those who insist that legal capacity is a fundamental element of his/her human dignity, which cannot be stripped away, even when a person has been found to be ‘incapable’ in law. Others point out that the legal and administrative tests for determining whether a person is capable of making his/her own decisions are arbitrary. In this paper we employ a rights-based principled approach, which accepts that an individual’s decision-making autonomy is, philosophically, a crucial aspect of human dignity and personhood. We have placed the word ‘incapable’ in quotation marks to denote this meaning and to recognize the evolving nature of our understanding of capacity.
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