III. Monitoring and Accountability of Guardians in Ontario2017-03-03T18:33:23+00:00

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 individual autonomy by ensuring that a statutory guardianship does not remain in place once a person has been declared capable.

While there may be provisions that help a person terminate a statutory guardianship once their capacity improves, there is little formal oversight to ensure that these processes are followed. The SDA does not impose any proactive obligations on the PGT or any other statutory guardian to have an ‘incapable’ individual’s capacity reassessed at regular intervals. It is up to the ‘incapable’ person to request an assessment.

There is financial assistance available from the PGT to help cover the cost of an assessment for persons whose income is too low to pay for one themselves. This is important given that capacity assessments generally cost several hundred dollars, an amount that creates a significant barrier for many low-income persons with disabilities.[54] There is no statutory requirement that the PGT provide this funding. Nor is there a requirement that persons subject to the guardianship of the PGT be informed of the existence of this financial assistance. As the PGT provides this funding on an entirely discretionary basis, access to this fund is not automatic. A manager at the PGT must approve a request to access these funds.[55] While impecunious persons can, technically, access public funds to ensure that they can have their capacity assessed every six months, there is no guaranteed right to these funds. In those cases where the PGT does not provide funding, people may find that their ability to re-assert their capacity is compromised by their inability to pay for an assessment.

 

3.     Statutory Guardians of Property: Private Guardians

Section 17 of the SDA outlines how certain individuals may apply to replace the PGT as statutory guardian. Through this process an ‘incapable’ person’s spouse, partner, relative or a trust company may be appointed statutory guardian to replace the PGT. Applicants must provide a management plan to indicate how they plan to deal with the ‘incapable’ person’s finances and the PGT has discretion to deny an application.[56]

When a family member or other private statutory guardian dies or resigns, the PGT may step in to become the person’s statutory guardian until another person is appointed guardian.[57]

 

4.     Court-Appointed Guardians of Property

Sections 22 to 24 of the SDA deal with the appointment of a guardian of property by the Superior Court of Justice. Court-appointed guardians are usually close family members to the ‘incapable’ person. The PGT does not generally act as a court-appointed guardian. Pursuant to section 24(2.1) of the SDA, the court shall not appoint the PGT as guardian unless there is no other suitable person who is available and willing to be appointed.[58]

Sections 72, 74 and 77 of the SDA allow for a summary process to appoint guardians of property and guardians of the person, and permit a court to make an order without anyone appearing before it and without holding a hearing.[59] Although potentially quicker and perhaps less costly than appearing before a judge, a summary process does not allow for any discussion about how to best protect the rights of the ‘incapable’ person, or whether less intrusive forms of decision-making assistance would be appropriate.

Pursuant to section 22(3), a court-appointed guardian should be imposed only as a last resort where no other less restrictive option is available.[60] This provision promotes the rights of persons with capacity issues by ensuring that both formal and informal supports are considered and applied to allow persons to maintain their autonomy if they could function effectively with decision-making assistance. As stated in Gray v. Ontario, the autonomy and dignity of the individual and the inclusiveness of the decision-making process is best recognized by a process short of full guardianship.[61]

Section 22(3) opens the door to the SDA being interpreted in a manner that is consistent with Article 12 of the CRPD, which requires that people be given access to supports to exercise their legal capacity. Article 12 also requires that all measures related to the exercise of legal capacity are proportional and tailored to the person’s circumstances.[62] If a decision-making system that protected or enhanced an individual’s ability to assert his/her decision-making autonomy was or could be put in place, the court should not impose a guardian on that individual. In such circumstances the imposition of a guardian could be seen as a violation of the individual’s right to legal capacity since a guardianship would restrict the person’s autonomy far more than required.

Section 25(2) of the SDA allows the court to make the appointment of a guardian for as limited a period as the court considers appropriate or to impose such conditions on the appointment as the court considers appropriate.[63] This provision is also in accord with Article 12 of the CRPD, which requires that any measures relating to a person’s exercise of legal capacity apply for the shortest time possible.[64] Section 25(2) may be used to support the principle of inherent dignity by ensuring that guardians have only those powers that are absolutely required, and that guardianships exist for the most limited period of time possible.

The SDA provides the Superior Court with the authority to vary an order or replace a guardian. This offers a process to allow individuals to alert the court to problems with the guardianship or to ask that a new guardian be appointed.[65] For many ‘incapable’ persons, making use of this process would require legal advice and assistance.

 

5.     Termination of Court-Appointed Guardians

Sections 69, 71, 73, and 75 of the SDA outline the process for terminating a court–appointed guardian of property. This process is far more complex than that used to terminate statutory guardianships. Whereas the production of an assessment indicating that the person is capable is usually sufficient to terminate a statutory guardianship, this is not, in itself, sufficient to terminate a court-appointed guardianship. [66]

Terminating a court-appointed guardianship requires bringing a motion before the Superior Court of Justice, Estates Court. Motion materials must be prepared presenting the capacity assessment(s) to the court and making legal arguments to convince the court that the guardianship is no longer required. The motion materials must be served on a range of family members. These family members are able to present evidence at the hearing of the motion should they wish to challenge the termination of the guardianship.[67]

While most motions to terminate a guardianship are successful if supported by capacity assessments, even a simplified legal process can be time-consuming and expensive. It can take several months after the production of a positive capacity assessment before a court-appointed guardianship is terminated and decision-making control returned to the formerly ‘incapable’ individual. This means that a person capable of making decisions can remain subject to the control of a guardian long after s/he no longer requires a guardian. Additional delays, complications and costs arise if family members decide to intervene in the proceedings to challenge the termination of the guardianship. This is an unnecessary violation of the principle of autonomy and independence.

Pursuant to sections 72, 74 and 77 of the SDA, a summary process to terminate a court-appointed guardian is also available. 


6.     Duties and Obligations of Guardians of Property

Sections 31 to 42 of the SDA deal with the powers, duties and obligations of guardians of property and attorneys for property. Guardians are fiduciaries who are obliged to perform their duties in good faith, with honesty and integrity, for the ‘incapable’ person’s benefit.[68] C.D. Freedman argues that the fiduciary obligations of an attorney or guardian acting on behalf of an ‘incapable’ person are more extensive than those of a trustee, and that persons acting on behalf of an ‘incapable’ person must act according to the highest standards of competency, probity and fidelity. This is in large part due to the fact that an ‘incapable’ person may be in no position to participate directly in enforcing the attorney’s or guardian’s obligations.[69] The SDA states that a guardian’s duties must be met according to the standard of care that a person of ordinary prudence would adhere to in exercising care, diligence and skill with respect to his/her own affairs, or according to the standard of a professional in cases where the guardian receives compensation.[70]

A guardian is obliged to explain to the ‘incapable’ person what the powers and obligations of a guardian are.[71] A guardian is supposed to manage a person’s property in a manner consistent with decisions concerning personal care made by the person who has authority to make those decisions.  A guardian should encourage the ‘incapable’ person to participate to the best of his/her abilities in decision-making about his/her property.[72] A guardian should foster regular personal contact with the ‘incapable’ person and his/her supportive family and friends. A guardian must act in accordance with the management plan established for the property of the ‘incapable’ person.[73] The SDA sets out required expenditures and guiding principles to apply to expenditures made by a guardian of property.[74]

There are certain processes available to compel guardians to demonstrate that they have carried out their obligations according to the provisions of the SDA. However, none of these processes are automatic; all require someone to initiate the process. For example, a guardian is required to keep accounts of all transactions involving the property of the ‘incapable’ person, but there is no provision to ensure any regular review of those accounts.[75] The SDA provides that the guardian, the ‘incapable’ person or other interested persons listed in section 42(4) may apply to court for an order requiring the guardian to pass his/her accounts. The PGT may also request an accounting from the guardian.[76] Under the current system a guardian’s accounts may not be reviewed by anyone for several years, if at all. It is worth noting that the original version of the SDA, prior to the amendments of 1996, required guardians to prepare annual financial statements and to give them upon request to the ‘incapable’ individual, the individual’s guardian of the person or the PGT.[77]

Pursuant to section 20.1 of the SDA a guardian has an obligation to assist in arranging an assessment of the ‘incapable’ person’s capacity if the assessment is requested by the ‘incapable’ person.[78]

The SDA offers no mechanism of formal oversight to automatically or regularly monitor guardians to ensure that they carry out their duties and obligations as required. There is no provision that mandates oversight over how faithfully a guardian follows a management plan. There is no provision to confirm that guardians respond appropriately to requests for re-assessment from ‘incapable’ persons.

The SDA does not require court-appointed guardians to receive any specific training on how to perform their duties.

Nor is there any obligation outlined in the SDA for anyone to provide a person subject to a guardianship with fulsome rights advice. While all guardians are required to inform ‘incapable’ persons about the guardian’s powers, duties and obligations, this is not the same as providing ‘incapable’ persons with information about their rights to obtain information from the guardian, participate in decision-making, challenge the guardianship, and the processes for asserting these rights. Consequently, people subject to a guardianship may be unaware of the provisions in the SDA that may be used to protect their rights.

The current system leans toward unnecessary restrictions on autonomy rather than minimal impairment of a person’s capacity.[79] Article 12 of the CRPD requires that all measures related to the exercise of legal capacity be subject to regular review by a competent, independent and impartial authority of judicial body.[80] The SDA is not consistent with the CRPD on this point. Under the SDA there are no automatic reviews or processes that monitor guardians and no mandatory periodic reporting requirements. The result is that a person can remain subject to a guardianship for far longer than is required. As noted above, under the court-appointed system, even once a person is found capable by a capacity assessor, it can take several months before the court actually terminates the guardianship.

 

D.    Guardians of the Person

Only the Superior Court of Justice can appoint a guardian of the person. Section 57(2.2) of the SDA provides that the court shall only appoint the PGT as a guardian where there is no other suitable person available and willing to be appointed.[81] Consequently, the PGT usually acts as guardian of the person for no more than one or two dozen individuals at any given time.[82] Nevertheless, on applications for guardianship, whether for property or personal care, the PGT is an automatic party.[83] The PGT may submit a report to the court, but otherwise its involvement is often limited.

As with a court-appointment of a guardian of property, section 55(2) requires that the court not appoint a guardian of the person if there is a less restrictive alternative available.[84] Section 59 stipulates that a guardianship of the person should not be a full guardianship covering all aspects of personal care unless the individual in question is actually ‘incapable’ with respect to all functions of personal care. Section 58 allows the court to make the appointment for as limited a period as the court considers appropriate and to impose such conditions on the appointment as the court considers appropriate.[85] Again, these provisions are consistent with the requirements of Article 12 of the CRPD.

Despite section 59(1), it appears that many guardianships of the person are full guardianships, granting the guardian a high level of control over crucial day-to-day concerns such as where the person lives, what s/he eats, and what social services s/he receives.[86] Given the high degree of control exercised by such guardians, it is disturbing to note that the SDA does not provide for any clear monitoring or supervision of their actions.[87]

Pursuant to section 59(2) of the SDA, under an order for full guardianship the guardian may:

  • exercise full custodial power over the person under guardianship, determine his/her living arrangements and provide for his/her shelter and safety;
  • be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers;
  • settle claims and commence and settled proceedings on the person’s behalf, except for purposes of litigation that relates to the guardian’s status or powers;
  • have access to personal information, including health information and records to which the person would have access if capable, and consent to the release of information to another person, except for purposes of litigation that relates to the guardian’s status or powers;
  • make any decision to which the Health Care Consent Act applies;
  • make decisions about the person’s health care, nutrition and hygiene;
  • make decisions about the person’s employment, education, training, clothing, recreation, and any social services provided to the person; and
  • exercise other powers and perform other duties as specified in the court order.[88]

Pursuant to section 59(3), if the guardian has custodial power over the person, the court may in its order authorize the guardian to apprehend the person. Guardians have the power, under certain limited circumstances, to use confinement, monitoring devices or restraint, either physical or chemical.[89] The SDA restricts a guardian’s ability to use confinement to control an ‘incapable’ individual,[90] but it is not clear how improper confinement would come to anyone’s attention or that anyone has an obligation to deal with it.

 

1.     Duties and Obligations of Guardians of the Person

Sections 66 to 68 of the SDA deal with the duties and obligations of guardians of the person. As with guardians of property, there is no provision in the SDA to ensure that guardians of the person receive training on how to properly carry out their obligations. 

The powers and duties of a guardian of personal care must be exercised and performed diligently and in good faith. The guardian shall explain to the ‘incapable’ person what the guardian’s powers and duties are.[91] Guardians are expected to make decisions to which the Health Care Consent Act applies.[92] Guardians are also expected to make decisions to which the Health Care Consent Act does not apply, in accordance with the principles set out in sections 66(3) and 66(4) of the SDA. These principles include making decisions in accordance with the person’s wishes as expressed while capable, and if such a wish is not known then in accordance with the person’s best interests. The SDA instructs that a person’s best interests must take into consideration the values and beliefs that the person held while capable, the person’s current wishes if they can be ascertained, and whether the decision is likely to improve the person’s quality of life. Guardians must keep records of the decisions they make,[93] but there is no statutory requirement that these records be submitted to anyone for regular review. Guardians are to act in accordance with the guardianship plan that should be submitted to the court,[94] but again, there is no provision in the SDA to ensure that anyone monitor whether a guardian is indeed acting according to the plan.

Importantly, guardians are expected to foster the ‘incapable’ person’s independence,[95] and encourage the person to participate to the best of his/her abilities in the decisions the guardian makes on the person’s behalf.[96] When in doubt, guardians are able to seek directions from the court on any question arising in the guardianship.[97]

These provisions offer certain protections to ‘incapable’ persons. However, given the wide range of powers a guardian can exert over an ‘incapable’ person, it is not clear how effective these protections are or how readily they could be enforced in any particular circumstance. For example, it is not clear how ‘incapable’ persons could ensure that their guardians fostered their independence or involved them in decision-making. Other than applying to court for directions, the SDA provides no mechanism by which ‘incapable’ persons could raise concerns about their guardians not abiding by these statutory requirements. Even then, unlike a guardian, an ‘incapable’ person requires leave of the court to use this provision.[98]

In summary, there are no provisions in the SDA that provide for any regular monitoring of guardians of the person, nor is there any requirement that guardians report on their duties and obligations. There is no requirement that the capacity of an ‘incapable’ person subject to a guardianship of the person be re-assessed at any point in time. The SDA requires that ‘incapable’ persons be told what the guardian’s basic duties and obligations are, however there is no requirement that ‘incapable’ persons be given any fulsome rights advice.

 

E.    Dealing with Disputes between an ‘Incapable’ Person and a Guardian

The SDA does not offer any complaint or dispute resolution mechanism for persons subject to a guardianship. Persons subject to the guardianship of the PGT can file a complaint with a supervisor if they feel that their client representative is not dealing properly with their finances.[99] Persons subject to the statutory guardianship of a family member have no access to a similar complaint mechanism. The SDA does not require the PGT or any other public authority to take any specific action when it comes to receiving, investigating or addressing complaints or concerns about the actions of a family member statutory guardian. If the PGT receives requests for assistance from ‘incapable’ persons, it may help to locate social services, may provide information to the guardian and/or third parties to help clarify the role of the guardian, or may launch an investigation.[100] However, it is within the PGT’s discretion to decide whether and how to respond to such requests.

Section 88 of the SDA provides that the PGT may mediate disputes arising between a person’s attorney for property and attorney for personal care, or between joint attorneys or joint guardians.[101] There is, however, no provision in the SDA requiring or even permitting the PGT or any other public authority to mediate disputes between a guardian or attorney and the ‘incapable’ person.

Persons subject to a court-appointed guardianship have even less access to a complaint process. The PGT may intervene in cases where it appears that a court-appointed guardian should be removed. Anyone can make an allegation to the PGT that a person is incapable and may be subject to serious harm if no action is taken. If upon investigation the PGT determines that the incapable person or his/her property is at risk of serious harm the PGT is compelled, pursuant to sections 27(2), 27(3.1) and 62(3.1) of the SDA, to bring this to the attention of the court.[102] The PGT interprets these provisions to apply to allegations against a court-appointed guardian.[103] There is no obligation on anyone to intervene in less serious disputes between a court-appointed guardian and an ‘incapable’ person.

In most cases, an ‘incapable’ person who wishes to challenge the actions of his/her guardian must bring a motion to the court to obtain directions, pursuant to sections 39(1) and 68(1) of the SDA. The cost, legal complexity and time-consuming nature of such a process makes it inaccessible for many persons subject to guardianship. Moreover, it is clear from the language employed in these provisions that the motion is to be brought by the guardian or the PGT. A person subject to a guardianship would have to seek leave of the court to use this process to seek directions.[104]  It is worth noting that in the original version of the SDA, prior to the amendments of 1996, the ‘incapable’ person was able to apply to the court for directions without having to seek leave.[105]

 

F.    Supports for ‘Incapable’ Persons

The Advocacy Act was proclaimed in 1995 and repealed in March 1996. It was created to contribute to the empowerment of vulnerable persons and to promote respect for their rights, freedoms, autonomy and dignity.[106] The Act defined ‘vulnerable person’ as a “…person who, because of a moderate to severe mental or physical disability, illness or infirmity, whether temporary or permanent and whether actual or perceived”:

2(a) is unable to express or act on his or her wishes or to ascertain or exercise his or her rights; or 

2(b) has difficulty in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights.[107]

The Act provided advocacy services to help individual vulnerable persons who were ‘incapable’ of instructing an advocate; help vulnerable persons to bring about systemic changes at the governmental, legal, social economic and institutional levels; help individual vulnerable persons express and act on their wishes, ascertain and exercise their rights, speak on their own behalf, engage in mutual aid, and form organizations to advance their interests; and to acknowledge and enhance individual, family and community support for the security and well-being of vulnerable persons.[108] The Act would have created a commission of advocates to carry out its purposes.

Section 17(1) of the Act provided that advocates shall not do anything that is inconsistent with the instructions or wishes that the person being served expressed orally or in any other manner, while capable of instructing an advocate. Section 17(5) provided that:

a vulnerable person is capable of instructing an advocate if the person is able to indicate a desire for advocacy services and the purpose for which he or she wishes to receive the services and is able to express, in some manner, his or her instructions or wishes. 

This definition of capacity to instruct would have made the scheme accessible to many persons with capacity issues.

An advocate was also empowered to provide advocacy services for a vulnerable person in accordance with instructions from the person’s substitute decision-maker, if the person was ‘incapable’ of instructing an advocate or the person agreed to allow the advocate to obtain instructions from his/her substitute decision-maker. If a person granted permission to take instructions from his/her substitute decision-maker, this permission could be revoked or revised.[109]

Given the definition of capacity required to instruct an advocate, it does not appear that a substitute decision-maker would have been able to override a vulnerable person’s instructions to his/her advocate without the person’s permission. In this way the ability of the advocate to take instructions from a substitute decision-maker does not seem to have placed undue restrictions on a vulnerable person’s autonomy, at least vis ὰ vis his/her advocate. The fact that a vulnerable person could have revoked the permission s/he granted to his/her advocate to take instruction from a substitute decision-maker would have allowed vulnerable persons to exert some control over the extent to which the substitute decision-maker could have been involved in their relationship with their advocate.

Advocates were given certain rights of access and entry as well as access to records for the purpose of providing advocacy services to vulnerable persons.[110]

The Advocacy Act was intended to be a companion act to the SDA. Some of the gaps in the SDA regarding protecting the rights of ‘incapable’ persons may have been dealt with by the Advocacy Act. In particular, before the revocation of the Advocacy Act, the SDA included entitlements to rights advice for individuals at crucial moments, such as during a PGT investigation, when an application for a court-appointed a guardian was filed, when a variation in a court guardianship order was sought, and when the court ordered a capacity assessment be performed against a person’s wishes.[111] Prior to the 1996 amendments to the SDA, section 76(4) provided that the court could not make an order imposing a guardianship upon a person until an advocate confirmed that s/he had met with the person, explained the significance of the guardianship application and accompanying documents and informed the person of his/her right to oppose the application.[112]

The SDA was amended to deal with the revocation of the Advocacy Act by removing the obligation to provide fulsome rights advice to persons whenever they face the prospect of having their autonomy compromised.[113] However, despite this amendment, guardianships under the SDA still function as if the Advocacy Act was in place and all ‘incapable’ persons had access to an advocate to defend their rights. This is reflected in the assumption that ‘incapable’ individuals are able to take the initiative and pursue court and other legal processes to defend their rights. Taking such action may be possible if individuals have access to an advocate to guide and support them and provide them with the information they required to defend their rights. However, without an advocate such processes are inaccessible to many individuals with capacity issues.

The Advocacy Act was more consistent with provisions of Article 12 of the CRPD than the current SDA; the Advocacy Act recognized that persons who require support to exercise their capacity are still capable of making their own decisions. It also recognized that a failure to provide supports to exercise legal capacity leaves people vulnerable and compromises their ability to defend their rights. Since the repeal of the Advocacy Act, the law relating to guardianships does not provide for any supports to assist ‘incapable’ persons to exercise their legal capacity.

 

G.   Ombudsman Investigations

The provincial Ombudsman is empowered to investigate and respond to complaints about government offices, including the PGT.[114] The Ombudsman may investigate a claim, but can also refuse to investigate.[115] A complaint form must be completed, either on-line or by hard copy. The form is not in clear language, and there are no documents, videos or other materials that explain the complaint process in clear language. The complaints process may, therefore, be inaccessible to persons with capacity issues if no one is available to support them. Moreover, people must be aware that it is possible to file a complaint with the Ombudsman.

Despite these concerns, the Ombudsman has dealt with a variety of complaints from persons subject to the guardianship of the PGT. In one case, a person was incorrectly found ‘incapable’ due to his refusal to acknowledge an $8,000 debt about which the PGT had informed his assessor. In reality, the person did not actually have any debt; he had an $8,000 unused line-of-credit. In this case the PGT paid for a second capacity assessment, which found the man capable of managing his finances.[116] In another case a man subject to the guardianship of the PGT requested a capacity assessment. The PGT refused to pay for the assessment, stating that previous assessments had found him incapable. This was incorrect, given that the man was statutorily entitled to a capacity assessment since he had not had one in the last six months. The PGT had funds to pay for the assessment if, as was the case here, the person was not able pay.[117]

While the Ombudsman may be able to resolve some individual complaints regarding the PGT, the Ombudsman has no jurisdiction over private or court-appointed guardians.[118] Furthermore, the Ombudsman may not investigate or deal with every individual complaint.[119] In these respects the Ombudsman’s ability to protect the rights of persons subject to guardianships is limited. The provincial Ombudsman is not a substitute for comprehensive monitoring and oversight of guardians.

 

H.    Criminal Proceedings

The Criminal Code makes financially abusive behaviour an offence.[120] These provisions apply to attorneys for property, persons holding money under direction, persons required to account, a criminal breach of trust, extortion and fraud. Technically financial abuse by a guardian could fall under these provisions. The sentence for theft or fraud could be imprisonment for up to two years. Abuse of a position of trust or authority over a vulnerable victim is an aggravating factor for the purposes of sentencing.[121]

While these provisions address financial abuse, many writers have noted that the criminal justice system has significant limitations and does not provide a comprehensive response to monitoring and oversight of guardians.[122] Victims may be reluctant to report abuse by a family member. Persons with disabilities face numerous barriers to accessing the criminal justice system. The criminal justice system focuses on punishing the perpetrator, not ensuring the well-being of the victim. There is no obligation to ensure that the financial needs of the victim are met while the prosecution proceeds.[123]

Moreover, in many cases, blatant financial abuse is not the key issue of concern for persons subject to guardianship. In many cases disputes arise because a person’s capacity has improved, but his/her guardian refuses to acknowledge this and maintains an overly controlling and paternalistic approach to the guardianship. These disputes cannot be resolved through the criminal justice system. The criminal justice system cannot protect vulnerable persons with ‘capacity’ issues in the same way that a comprehensive system of monitoring and supervision of guardians could.

 

I.       Summary

Ontario’s guardianship regime offers ‘incapable’ persons certain clear protections. However there is little oversight or monitoring to ensure that these protections are effective. Without a system to monitor and supervise the actions of guardians, there is no way to confirm that guardians are actually living up to their obligations or to ensure that persons subject to a guardianship are actually benefiting from the protections outlined in the SDA.

The current system does not require that guardians receive any particular training to help them carry out their obligations. At the same time, while the SDA provides that persons subject to a guardianship must receive information about the role and obligations of their guardian, and their right to challenge a capacity assessment, there is no obligation to offer ‘incapable’ people more detailed rights advice. These gaps may contribute to some of the disputes that arise between guardians and ‘incapable’ persons.

The SDA does not provide for adequate supervision of guardians or monitoring of their actions. Nor does the SDA offer a clear process for persons subject to a guardianship to follow to defend themselves from an unscrupulous, negligent or simply over-protective or paternalistic guardian. 

The processes that do exist to address concerns about the actions of a guardian are generally passive; all require an ‘incapable’ person to take action to defend his/her rights. Most processes require litigation. These are some of the barriers that ‘incapable’ people attempting to assert their rights encounter in the current system.  

 

 

 

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