In this chapter we identify and describe the types of guardianships provided for by Ontario law, and we describe the mechanisms that are currently in place in Ontario to monitor guardians and ensure that they fulfill their responsibilities and obligations to ‘incapable’ persons. We also consider the mechanisms that are available to prevent guardians from misusing or abusing their powers; to ensure that guardianships are not maintained any longer than necessary; to provide processes by which people who have been declared ‘incapable’ can reassert their capacity; and to complain about the action or inaction of a guardian.

 

A.    Overview of Monitoring and Accountability of Guardians under the SDA

The key legislation dealing with guardianships in Ontario is the Substitute Decisions Act, 1992 (“SDA”).[22] The SDA provides basic definitions of capacity, establishes the presumption of capacity and creates a regime to allow for substitute decision-making for those persons found to lack capacity to make specific types of decisions. The SDA outlines three basic systems for putting in place three types of substitute decision-makers: powers of attorney, statutory guardians and court-appointed guardians.

The Act also creates the Office of the Public Guardian and Trustee (“PGT”), outlines the powers of the PGT and the court in relation to substitute decision-makers and ‘incapable’ persons, and outlines the powers and obligations of guardians and substitute decision-makers. The regulations to the Act deal with capacity assessments,[23] the accounts and records of attorneys and guardians,[24] and applications to replace the PGT as statutory guardian [25]. 

The SDA accommodates issue-specific and fluctuating capacity by restricting the attribution of incapacity to particular areas of decision-making. There are no findings of global incapacity. A person is found to be capable or ‘incapable’ of specific types of decisions, such as decisions about property or decisions about personal care.

There are certain protections intended to ensure that guardians are appointed only where no less restrictive alternative exists. Persons are assumed to be capable unless there is good reason to believe otherwise. When questioned, a person’s capacity is determined on a task-by-task basis. Under the Health Care Consent Act capacity is evaluated (or re-evaluated) for each health care decision. Even once declared to be ‘incapable’ of a particular type of decision by a doctor or capacity assessor, a person has the right to challenge that finding before the Consent and Capacity Board.

Once a guardian is appointed, however, the SDA grants that guardian substantial powers to make decisions on the adult’s behalf as well as the legal authority to execute those decisions. While the SDA encourages guardians to involve ‘incapable’ persons in the decision-making process to the extent possible, decisions are made by the guardian and not the ‘incapable’ individual. Under the SDA, guardianship effectively deprives an adult of legal capacity to make decisions and transfers that capacity to another person.[26]

The SDA offers individuals subject to a guardianship little in the way of effective protection if their guardians abuse their powers or fail to carry out their statutory obligations. Under the SDA guardians are not subjected to any form of rigorous supervision or oversight. Without proper monitoring and supervision, it is not possible to ensure that guardians actually abide by the provisions of the SDA intended to protect the rights of ‘incapable’ individuals. In particular, the processes related to court-appointed guardians privilege guardians, make it difficult for an ‘incapable’ person to defend his/her rights, and consequently leave ‘incapable’ persons vulnerable to abuse.

 

B.    Legal Presumption of Capacity and Definition of Incapacity in the SDA

A key protection of a person’s legal autonomy offered by the SDA is the Act’s acknowledgement of the presumption of capacity. Sections 2(1), 2(2) and 2(3) outline this presumption as follows:

2.(1) a person who is eighteen years of age or more is presumed to be capable of entering into a contract.

2.(2), a person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. 

2.(3) a person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is ‘‘incapable’’ of entering into the contract or of giving or refusing consent, as the case may be. 

This presumption enhances autonomy and promotes the inherent dignity, worth and equality of all persons. All persons are assumed to be capable and able to participate fully in society and all aspects of decision-making affecting their lives. No one is expected to prove their capacity. Clear evidence is required to challenge the presumption of capacity.

Additionally, the SDA allows individuals to take action to protect their rights regardless of their capacity status. Section 3 deems a person capable to instruct counsel for the purposes of defending his/her rights as listed in the SDA. Section 3 provides that:

3.(1) if the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,

(a) the court may direct the Public Guardian and Trustee to arrange for legal representation to be provided for the person.

(b) the person shall be deemed to have capacity to retain and instruct counsel

This section addresses the potential vulnerability that an ‘incapable’ person may encounter if s/he were not able to retain a lawyer due to a finding of incapacity to make other kinds of decisions. Unfortunately, in many situations section 3 might not function as intended. For lawyers, a statement of presumed capacity to instruct may be of little practical use if they cannot actually obtain instructions from the client. Clients may be too ill to give instructions, they may not wish to participate, they may not trust a lawyer appointed for them, or they may lack capacity to give instructions. A lawyer is obliged to do all s/he can to accommodate the client and find supports that may allow the client to give instructions.[27] However, in some cases, despite the presumption of capacity to instruct, a client may not be able to provide instructions, even with support and accommodation. In such instances, a lawyer, although able to represent the person, is restricted to functioning within very limited parameters that severely compromise the lawyer’s ability to advocate effectively for the client.[28] Essentially, the role of counsel in such cases is necessarily limited to ensuring that all proper processes are followed and client’s rights are upheld.[29]

Section 6 of the SDA provides a definition of incapacity to manage property. A person is ‘incapable’ to manage 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. This section recognizes that the quality of a decision is not a basis for determining whether a person has capacity. This promotes the principle of autonomy by offering some protection to persons who might otherwise be susceptible to findings of incapacity on the basis that their decisions were not in accord with what others would see as proper, wise or rational.[30]

Section 45 of the SDA provides a similar definition of incapacity with respect to personal care. Personal care decisions include decisions about the person’s health care, nutrition, shelter, clothing, hygiene or safety. [31]

 

C.    Guardians of Property

1.     Statutory Guardians of Property: The Public Guardian and Trustee

Sections 15 to 21 of the SDA deal with the Public Guardian and Trustee as statutory guardian for property. The PGT becomes a person’s guardian when a certificate of incapacity (Form 21) is issued by physician under the Mental Health Act,[32] or a certificate of incapacity (Form A) is issued by a capacity assessor under the SDA.[33]

Section 16(1) provides that a person may request that an assessor perform a capacity assessment of his/her own capacity or another person’s capacity in order to determine whether the PGT should become the statutory guardian of property.[34] Essentially this provision allows the PGT to initiate an investigation, which could lead to a finding that the person is ‘incapable’, at which point the individual may be placed under the guardianship of the PGT. The SDA provides that no assessment will be performed unless certain conditions, outlined in section 16(2), are met.[35]

There are certain protections provided for individuals during the capacity assessment process. For instance, an assessor must explain the purpose of the assessment and the impact of a finding of incapacity. An assessor must also explain that a person has the right to refuse an assessment.[36]

If a person refuses to be assessed, the PGT may, pursuant to section 79(1) of the SDA, obtain a court order compelling the person to submit to a capacity assessment against his/her will. [37] The PGT may also obtain permission to enter premises and even detain a person to ensure that s/he is assessed.[38] The SDA allows for a person who is subject to an order compelling a capacity assessment to be forcibly removed by police.[39] The person can be admitted to a health facility and detained there until the assessment is complete.[40] The SDA also provides the PGT with fairly broad access to records to help it carry out its duty to investigate alleged cases of incapacity.[41]

Orders compelling a person to subject him/herself to a capacity assessment against his/her will are to be employed only where the person has refused to be assessed and it appears there is no other way to determine what the person’s needs may be. Courts have ruled that a compelled assessment is a substantial intervention into the privacy and security of the individual and constitutes a demeaning and abusive process.[42] Although there is case-law that limits the use of such orders, there is still a danger that these orders will be used more widely than intended.[43]

Clearly the capacity assessment process carries with it the prospect of undermining both the inherent dignity and autonomy of individuals. Together, the PGT powers of entry, investigation and access to records give the PGT a great deal of power to invade the privacy rights of persons alleged to be ‘incapable’ of property management.

If a capacity assessment is performed and the person is found to be ‘incapable’ with respect to property management, the PGT becomes his/her guardian of property as soon as the certificate of incapacity is received.[44] The PGT is obliged to inform the individual that s/he has been placed under the guardianship of the PGT, and that s/he has the right to apply to the Consent and Capacity Board for a review of this decision.[45]

An application to the Consent and Capacity Board must be made within six months of the finding of incapacity. The Board’s decision can be appealed to the Superior Court of Justice.[46] Alternatively, a person may ask for a new capacity assessment if it has been at least six months since his/her last assessment. Pursuant to section 20(1) of the SDA, a statutory guardian is obliged to assist in arranging a new assessment.[47] If the new assessment determines that the person has capacity, the guardianship can be terminated.

The guardianship of the PGT is a ‘default’ position in the sense that the PGT, in some instances, becomes a guardian of property automatically following a finding of incapacity, and in the sense that the PGT will act as guardian when there is no-one else available.[48]

The PGT assigns a client representative to individuals subject to its guardianship. This client representative manages the individual’s finances and becomes the primary contact between the client and the PGT. Client representatives receive on-going training and there is a process in place at the PGT to monitor their work. Client representatives are grouped into teams with a team leader, a manager and supervisors. Clients who are unhappy with the work of their client representative can make a complaint to the client representative’s supervisor.[49]

The PGT also has an obligation, pursuant to Ontario Regulation 99/96, to maintain a register of all persons subject to either a statutory or court-appointed guardianship.[50]

 

2.     Terminating the Guardianship of the Public Guardian and Trustee

Pursuant to sections 16 and 17 of the SDA, the statutory guardianship of the PGT may be terminated in the following circumstances: [51]

  • a person gave a continuing power of attorney before s/he was declared ‘incapable’;
  • a guardian is appointed by the court;
  • a certificate of incapacity is cancelled;
  • a notice is received from an assessor stating the person has been found capable; or
  • by application to court.

Pursuant to section 17(1) of the SDA, the guardianship of the PGT can also be terminated if a family member applies to assume the role of guardian in place of the PGT.[52]

The mechanisms provided to terminate the statutory guardianship of the PGT promote autonomy to some extent as there are some autonomic mechanisms that result in termination of guardianship, particularly if the individual took steps to choose a substitute decision-maker by granting a power of attorney. A person’s autonomy is further protected by the fact that an individual has the right to request re-assessment [53] and an assessment confirming capacity is sufficient to terminate the guardianship of PGT. To the extent that these processes are triggered by a finding of capacity, they promote i