IV. Case Examples2017-03-03T18:33:23+00:00

In this chapter we describe a number of case examples that illustrate some of the common concerns and barriers that arise for people with disabilities who are subject to guardianship in Ontario. These include situations in which:

  • guardians fail to carry out their legal obligations;
  • guardians assert broader powers than what is provided for under the relevant legislation;
  • guardians do not consider the ‘incapable’ person’s wishes or make decisions that are contrary to those wishes;
  • guardians have insufficient contact with the ‘incapable’ person and share insufficient or incorrect information;
  • guardians fail to assist the ‘incapable’ person to re-assert his/her capacity by obtaining a capacity assessment and/or terminating a guardianship;
  • mechanisms available to hold the guardian accountable are inaccessible for ‘incapable’ persons;
  • ‘incapable’ persons have little information about their rights and the mechanisms that exist to protect those rights;
  • there are few existing mechanisms for challenging the powers that a guardian purports to hold; and
  • persons who have no legal authority to act as guardians do so with impunity.

The case examples also describe how some of the existing monitoring and accountability mechanisms address these concerns. We analyze each case example by applying the rights-based principled approach that was developed in chapter II. Using this analysis, we identify gaps and weaknesses in the current monitoring and accountability mechanisms.

The case examples we describe are drawn from ARCH’s work with persons with disabilities, disability organizations and the broader disability community.[124] We also consulted with private bar lawyers who work in the area of capacity and guardianship law in order to confirm that the issues reported to ARCH are similar to those encountered in other legal practices. Some of the case examples presented are amalgams of facts from various cases where similar issues were raised. To protect confidentiality, we have use pseudonyms and changed any identifying information.

 

A.    Ontario’s Public Guardian and Trustee

1.     Case Example: Adele

Adele, a woman who has intellectual and physical disabilities, was living independently in an apartment. She received services from a community agency in the form of a support worker who visited her several times a week and assisted her with budgeting, groceries, bills and various other activities. Adele’s father and sister lived nearby and were involved in her life. Adele wanted to remove her sister as her guardian of property. Adele felt that she could and, in fact was, managing her finances successfully with support, and that she no longer needed a guardian. She resented her sister’s on-going interference and control over her income. Adele had no understanding of how her sister had become her guardian, nor did she have any relevant documentation. She had signed a power of attorney for property, appointing her sister as her attorney. The power of attorney document clearly stated that it was to be effective only during times when Adele lacked capacity to make her own financial decisions. 

Adele was listed as a person subject to guardianship on the Register of Guardians which the PGT maintains. The PGT indicated that Adele was hospitalized as a result of her physical disability and while there, a medical doctor found her ‘incapable’ of managing her own property. Pursuant to the SDA, a certificate of incapacity was issued, the PGT was notified and subsequently became Adele’s guardian of property.[125] When Adele was released from the hospital, a Notice of Continuance of Incapacity was issued.[126] Upon her release from hospital, Adele’s sister notified the PGT of the pre-existing power of attorney for property. The PGT then terminated its guardianship in favour of the power of attorney.  The sister was, therefore, not Adele’s guardian, but rather her attorney.

With some assistance, Adele was able to explain this to her sister and inform her sister that her ability to control Adele’s money was limited to periods when Adele lacked capacity, as provided for in the power of attorney document. Adele decided that she no longer wanted her sister to act as her attorney for property. She terminated the power of attorney and appointed a new attorney. This case had a positive outcome for Adele, since she was able to reassert her self-determination regarding decisions about her finances. However, the case highlights some of the concerns that ARCH regularly hears about from people with disabilities who are subject to guardianship by the PGT.

The PGT representative who was responsible for handling Adele’s case stated that when the PGT discovered that Adele had a pre-existing power of attorney, the PGT terminated its guardianship and appointed Adele’s sister as the replacement guardian. This course of action is not provided for in the SDA. Instead, the Act requires the PGT to terminate its guardianship and allow the pre-existing power of attorney to function as it was intended to do.[127] The information given by the PGT representative was not legally accurate and ultimately, had a damaging impact on Adele. Practically, it had the effect of supporting the sister’s assertion that she was a guardian and therefore had the power to control Adele’s finances. Had Adele been informed and educated by the PGT that the guardianship had been terminated and her sister was functioning as an attorney for property, Adele would have been able to limit her sister’s role and/or terminate the power of attorney, as she ultimately chose to do. Unfortunately, incorrect information from the PGT resulted in the sister controlling Adele’s finances for more than a year longer than was necessary. Adele was, in effect, subject to a much more restrictive form of substitute decision-making than she should have been.

Troublingly, the PGT representative stated that it was standard practice for the PGT to appoint family members as guardians in this manner, since the PGT had to assume that the person with a disability would never regain his or her legal capacity. The PGT representative stated that all Adele needed to do to have the sister guardian removed was to get a capacity assessment done. This reveals a lack of appreciation of the rights and principles inherent in a rights-based principled approach to legal capacity. Under the rights-based principled approach, the right to legal capacity is fundamentally linked to human dignity and personhood. Therefore, any restrictions placed upon this right should be limited to the greatest extent possible. This is not consistent with the approach taken by the PGT in Adele’s case. Assuming that a person would never regain his or her legal capacity denies the goal of limiting restrictions placed upon the right to legal capacity. Appointing a family member as a guardian (which the PGT purported to have done) instead of allowing the power of attorney to operate effectively left Adele subject to a more restrictive form of substitute decision-making than was necessary or required by law.

Moreover, suggesting that Adele do a capacity assessment placed an unnecessary barrier in front of her ability to exercise her legal capacity. This is inconsistent with the principle of promoting accessibility of legal and bureaucratic systems related to legal capacity. It also demonstrates a lack of understanding of the significance of a capacity assessment for many people; undergoing a capacity assessment requires the ‘incapable’ person to locate and arrange for an appropriate assessor, pay for or apply for the PGT to pay for the assessment, and prepare for the assessment. These are significant practical barriers. For many ‘incapable’ people, undergoing a capacity assessment is an anxiety-ridden experience and can constitute an affront to their dignity and autonomy.

Adele’s case demonstrates some additional concerns. Adele contacted ARCH for assistance after she and her support worker had already made several attempts, over a period of months, to obtain accurate information from the PGT. Many times their phone calls to the PGT representative went unanswered. Adele did, ultimately, obtain the information she needed. However it took months to receive this information and it required the assistance of a support worker and a lawyer. ARCH hears regularly from people with disabilities who have similar concerns about the inaccessibility of the PGT. Under the rights-based principled approach, the principles of promoting full and effective participation and inclusion in society, and promoting accessibility both require that legal and bureaucratic processes related to legal capacity be designed so as to foster participation and engagement. A system in which it is not possible for an individual to obtain, in a timely fashion, legally accurate information about his/her substitute decision-maker does not respect these principles.

 

2.     Case Example: Cora

The lack of timely response by PGT representatives can have serious practical implications for an ‘incapable’ person’s finances. Cora, a woman who was subject to the guardianship of the PGT, had large cell phone and cable bills. While under the guardianship of the PGT, she had used different names to set up multiple cell and cable accounts, without understanding the costs and other implications of her actions. Cora received social assistance benefits, and therefore could not pay these bills. Her social worker brought this to the attention of the PGT. The PGT took no action for some time. Eventually, the bills accumulated to such an extent that it was unrealistic for Cora to ever be able to pay, given her limited income. She received harassing phone calls from the cell and cable companies and was placed under a great deal of unnecessary stress, which had a negative impact on her overall quality of life. 

Cora’s situation reveals an area of major concern for persons subject to a guardianship: the balance between a guardian’s competing obligations. A guardian must balance the obligation to protect the ‘incapable’ person with the obligation to foster the ‘incapable’ person’s independence and autonomy. If a guardian fails to intervene quickly when the ‘incapable’ person is threatened, there is little point to having a guardian. An inattentive guardian simply imposes all the limitations of a guardianship without providing the ‘incapable’ person with any of the purported benefits or protections. In Cora’s case, it is clear that the PGT failed to monitor her actions or intervene, even when notified that there was a problem. Cora clearly required the assistance of her guardian to resolve the situation with the utility company. When the PGT failed to step in and deal with the problem, Cora suffered the very consequences that a guardianship is supposed to prevent.

 

3.     Existing Monitoring and Accountability Mechanisms That May Have Addressed Adele’s and Cora’s Cases

All guardians of property are fiduciaries whose powers and duties are to be exercised and performed diligently, with honesty and integrity, in good faith for the ‘incapable’ person’s benefit.[128] Ideally, pursuant to the provisions of the SDA,[129] the PGT should interact with the ‘incapable’ person to discern their wishes in order to make decisions that are, to the extent possible, consistent with the wishes of the individual. Adhering to these requirements would promote the principle of full and effective participation and inclusion by fostering the participation and engagement of the ‘incapable’ person in the decision-making process. However, there are no specific provisions in the SDA that provide for proactive monitoring to ensure that guardians carry out these obligations.

These duties were not fulfilled in either Adele’s or Cora’s case. In cases where a guardian fails to meet these obligations, there is no opportunity provided for the ‘incapable’ person to participate and consequently, guardianship becomes a mechanism of complete control.

If a guardian feels that s/he needs guidance, section 39(3) of the SDA permits a guardian to apply to court for directions on any question arising in connection with the guardianship. However, in order to utilize this mechanism and obtain directions from the court, Adele or Cora would have had to obtain leave of the court.[130] Given the time, expense and procedural barriers, this was not an accessible process for either Adele or Cora. 

In Cora’s case, the ability to obtain an order requiring the PGT to pass its accounts, pursuant to section 42 of the SDA, would not likely have helped, since it was not the PGT who approved the expenditures on cell phones. Even if section 42 could have been of assistance to Cora, the time, cost and complexity involved in launching a court application would likely have posed major barriers to her ability to take advantage of this option. Effectively, Cora did not have access to any mechanism under the SDA that would have allowed her to deal with the inaction of her PGT representative. 

While the PGT does have a complaint process, neither Adele nor Cora was aware that such a process existed.

The SDA does not address the concerns raised by Adele’s case regarding the failure by the PGT representative to provide accurate legal information or understand the principles underlying legal capacity. Nor does the SDA address the concerns highlighted in Adele’s and Cora’s cases regarding the inaccessibility of the PGT system. 

 

B.    Statutory Guardians: Family Members

1.     Case Example: Michael

Michael, a man in his early forties, was deaf and had an acquired brain injury. Michael’s sister became a family member statutory guardian for property using the application process through the PGT. There were no conflicts between Michael and his sister as long as Michael’s injuries restricted his ability to socialize or remain active in the community. However, when Michael became better able to assert his independence, and wanted to socialize and travel within the community, tensions rose. His sister was very uneasy about Michael travelling without an escort and she did not trust the friends with whom Michael wanted to socialize. Michael’s sister assumed that he was being taken advantage of and she felt that the only way to protect him was to restrict his ability to leave the facility she had placed him in for his own protection. To this end Michael’s sister asked staff at the facility to ‘watch’ Michael, report his activities to her and make efforts to keep him away from the friends she did not approve of.

Michael wanted to leave the facility and rent an apartment with a friend. His sister refused to release funds to allow Michael to pay rent. Michael felt that his sister was thwarting his attempts to become more independent, and that she was exercising an unreasonable amount of control over his daily life.

Michael’s sister did not understand the limits of her powers as guardian or the scope of her obligations. She felt that a guardianship of property gave her the power to control any and all aspects of Michael’s life. Michael sought the assistance of a lawyer. His sister refused to speak to Michael’s lawyer. She did not accept that Michael had any ability to retain a lawyer to assist him. Michael’s sister effectively acted as a barrier to communication or resolution of the situation. To the extent that facility staff co-operated with her and refused to pass messages to Michael, she was able to use them to interfere with Michael’s access to his own legal counsel.

Michael’s sister threatened to not repair his computer or TTY equipment, which would have greatly limited Michael’s ability to communicate with his other family and friends. He felt he had to co-operate with his sister since it did not appear that anyone could intervene effectively to change or challenge his sister’s behaviour.

Michael’s case illustrates the practical implications that can result when a guardian exerts control over an ‘incapable’ person. In Michael’s case, as long as his sister controlled his money, she also effectively controlled many other aspects of his life, including where he lived, what assistive devices and equipment he could access and what funds he had available for social activities. A danger of guardianships is that they can become oppressive if the guardian exercises control in areas where the person could make their own decisions or engage in collaborative decision-making with support.[131] Michael’s ability to assert his autonomy and independence was compromised. His ability to participate fully and effectively in his community was unduly restricted.

 

2.     Existing Monitoring and Accountability Mechanisms That May Have Addressed Michael’s Case

As noted, guardians are fiduciaries who are expected to exercise their duties diligently, with honesty, integrity and in good faith for the ‘incapable’ person’s benefit.[132] They must keep accounts of all transactions involving property[133] and may be asked to pass their accounts.[134] However, there are no specific provisions in the SDA requiring any form of mandatory monitoring or reporting on the activities of family member statutory guardians appointed by the PGT.

Section 42 of the SDA requires a guardian to prove they have used the ‘incapable’ person’s funds appropriately. An application may be made to court and the court may order a passing of accounts. This may have proven useful in resolving Michael’s situation, however the court order for a passing of accounts is discretionary and requires the ‘incapable’ person or someone on his/her behalf to initiate court proceedings to obtain the desired relief. 

Pursuant to section 39, Michael may have been able to apply to a court for directions. However, this would have required him to obtain leave of the court[135] and to engage a complex legal process, which would likely have required him to obtain and pay for legal counsel. This mechanism does not promote the principle of accessibility.

An ‘incapable’ person may seek to terminate a statutory guardianship pursuant to section 20.3 of the SDA. However, this process involves litigation. There are clear barriers to pursuing litigation to resolve conflicts with a statutory guardian, such as the cost and complexity associated with the legal process. When the guardian is also a family member there are further concerns such as the impact litigation may have on family relationships. This is especially worrisome when the ‘incapable’ person may depend upon the support of the family member guardian. In cases such as Michael’s, litigation or termination of the guardianship may be an extreme and inappropriate measure to deal with problems that may be resolved through mechanisms that may allow the guardianship to remain intact.

The SDA allows the PGT to mediate disputes that arise between a person’s guardian or attorney for property and their guardian or attorney for personal care, or between joint attorneys.[136] However, there is no provision that requires the PGT to mediate disputes that arise between a guardian or attorney and the ‘incapable’ person. The Rules of Civil Procedure stipulate that mandatory mediation is available for proceedings under the SDA.[137] However, a proceeding must be commenced in order to use this process, and there is a cost attached to pursuing this mediation. Mediation, therefore, was not an available option in Michael’s case.

There is no requirement in the SDA that training be offered to guardians. While the PGT publishes materials regarding the SDA and the role of a guardian, guardians are under no obligation to read or use this information. In Michael’s case, it is possible that his sister may have exercised her substitute decision-making powers more diligently and effectively had she been aware of her responsibilities and obligations as Michael’s guardian.

 

C.    Court-Appointed Guardians

1.     Case Example: Hazel

Hazel was a young woman who had been seriously injured in a car accident. She received a large insurance settlement, and her brother was appointed her guardian of property and personal care. Several years after the accident, Hazel had recovered and wanted to re-assert her autonomy and decision-making powers. Her guardian refused to accept that Hazel’s condition had improved. Despite her young age, he wanted her to remain in a nursing home with limited ability to travel outside, since he felt that this was the only way to ensure her safety. He allowed her very limited access to money, even though Hazel had ample funds available. This curtailed her outside activities and limited her independence and ability to participate in the community. At times the guardian refused to spend money on necessary items such as personal hygiene products, new clothes, and dental care, which compromised Hazel’s dignity and health.

Every step Hazel took to assert her autonomy was thwarted by her guardian. He refused to make arrangements for, or provide funds to pay for, a capacity assessment. Hazel’s guardian claimed that she needed his permission to be assessed, and his agreement as to who performed the assessment. The guardian would not provide her with clear information about her finances to allow her to determine what type of alternative living arrangements she could afford.

Even after Hazel obtained assistance from counsel, and underwent capacity assessments which confirmed her capacity to manage both her property and her personal care, Hazel’s guardian opposed her. He was able to use the court process to delay her re-asserting her autonomy for almost a year after she had been found capable. Eventually the guardian agreed to allow Hazel’s application to terminate the guardianships to proceed unopposed.

 

2.     Existing Monitoring and Accountability Mechanisms That May Have Addressed Hazel’s Case

There were only limited options available to Hazel to challenge her guardian or re-assert her autonomy. Hazel could have attempted to enforce the guardian’s fiduciary obligations through the criminal process, however that process is set up to deal with theft or fraud, not necessarily withholding of funds. She could have sought a court order requiring her guardian to pass his accounts; or she could have pursued litigation to seek to terminate the guardianship. The latter two options were not accessible to Hazel since both involved pursuing litigation to obtain a court order. Both involved retaining a lawyer and incurring significant costs. No process was available to resolve the conflict informally and quickly without resorting to expensive litigation.

There is no requirement in the SDA that a person subject to a court-appointed guardian be offered an opportunity to be re-assessed to establish that they have regained their capacity. Even if the ‘incapable’ person requests an assessment, there is no explicit obligation on a court-appointed guardian to comply with such a request. Section 20.1 of the SDA requires statutory guardians to assist in arranging an assessment of the person’s capacity if requested by the ‘incapable’ person; there is no similar provision that applies to court-appointed guardians.

Even when Hazel attempted to pursue litigation, her guardian was able, at least initially, to thwart her. The guardian told Hazel that since the court had granted him guardianship over her, the court would always do as he requested; and that if she caused trouble he could ask the court to put her in jail. There was no obvious place for Hazel to turn to ask whether what her guardian was telling her was correct. The information published by the PGT was not available in Hazel’s first language, nor did it directly address Hazel’s situation. While there is a requirement in the SDA that a guardian explain to the ‘incapable’ person what the guardian’s powers and duties are,[138] there is no requirement that anyone inform the ‘incapable’ person of their rights vis à vis the guardian.

Provisions that require an ‘incapable’ person to take legal action against a guardian privilege guardians and disadvantage ‘incapable’ persons attempting to protect their rights. Legal processes under the SDA are complex, and usually require the ‘incapable’ person to find, retain and pay for legal counsel. As a result they are not accessible to many ‘incapable’ persons. Once an ‘incapable’ person is made subject to a guardianship by the court, s/he may be highly vulnerable to manipulation and intimidation by unscrupulous guardians. This vulnerability is heightened by a lack of obligation on the guardian, court, PGT, or any other public authority to provide information about the guardianship or rights advice to the ‘incapable’ person. There are no provisions in the SDA that require guardians to report on their activities or that require a public body to monitor the activities of guardians. In Hazel’s case, reporting or monitoring requirements may have assisted to hold Hazel’s guardian accountable for the unjustified control he exercised over her.

Furthermore, the SDA permits guardians to use the ‘incapable’ person’s funds to pay for legal counsel to challenge the ‘incapable’ person’s attempts to assert his/her autonomy.[139] This is exactly what happened in Hazel’s case: her guardian used Hazel’s money to pay his own legal counsel, while at the same time refusing her access to her own funds, which she needed in order to defend herself. The guardian’s access to Hazel’s funds was automatic, while her ability to recoup costs if he ‘overspent’ would be based on her being able to convince a court to issue a costs award against the guardian. This latter process would impose further costs upon Hazel. Even if she was successful in obtaining an order from the court, there is no guarantee that her guardian would have had the resources to honour the order.

The mechanisms available to Hazel were all passive in the sense that they each require the ‘incapable’ person to initiate an action that may lead to monitoring or scrutiny of the guardian’s actions. With limited access to rights advice and legal counsel, many ‘incapable’ people are prevented or limited from triggering these mechanisms. By controlling the ‘incapable’ person’s access to his/her own funds, a guardian can further restrict the person’s ability to secure legal counsel.

Rule 75.1 of the Rules of Civil Procedure stipulates that mandatory mediation applies to proceedings under the SDA. However, accessing this process requires that a person initiate litigation. As with most aspects of litigation, the parties must each pay an equal share of the costs related to the mediation.[140] While mediation may help to resolve some issues more quickly and shorten court proceedings, it is still, like most court-based processes, inaccessible to many ‘incapable’ persons due to the cost and complexity of the proceedings. The SDA makes no provision for mediation or alternative dispute resolution outside of a litigation process.

 

3.     Case Example: Leo

Leo, a person with an intellectual disability, was involved in litigation which resulted in a financial settlement being awarded to him. A court appointed Leo’s mother as his guardian for property and personal care, largely for the purposes of dealing with the financial settlement. Leo’s mother administered and made decisions about the financial settlement funds. She spent the settlement improperly and failed to file reports as required by the guardianship order. No court or other public body pursued or monitored Leo’s mother.  Once the settlement funds were exhausted, Leo’s mother vanished. No one was carrying out any guardianship obligations and responsibilities towards Leo. The mother refused to take any action to remove herself as Leo’s guardian. The PGT was notified but did not take any action. Fortunately, Leo received services from a community organization, and this organization ultimately assisted Leo to locate free legal counsel to assist him to have the guardianship terminated.

 

4.     Existing Monitoring and Accountability Mechanisms That May Have Addressed Leo’s Case

There are no clear mechanisms in place to deal with court-appointed guardians who die or vanish. The SDA provides that the PGT may elect to become a person’s statutory guardian if their statutory guardian dies or resigns,[141] but there is no similar provision obliging the PGT or any other person or organization to assume the role of guardian when a court-appointed guardian dies or vanishes. Even the existing provision does not explain how the PGT or the court is to be informed about the death of a guardian.

The ‘incapable’ person or someone on his/her behalf may pursue litigation to have the court appoint a new guardian. If no one does this, it is not clear that anyone would have any obligation to assist the ‘incapable’ person to sort out their financial or personal affairs in the absence of their guardian. Of course, if a guardianship has ceased to function, an individual may be left with no way to access his/her funds to pay for counsel or necessities of life.

Leo’s case highlights the potential vulnerability of persons whose court-appointed guardian dies or refuses to perform the functions of a guardian. In these situations, the ‘incapable’ person is left with all the limitations on his/her autonomy inherent in a guardianship, but without any of the supposed protections that a guardianship is expected to provide. If the ‘incapable’ person cannot initiate litigation to remove the guardian or cannot access legal supports, s/he may be left without any funds or forced to survive on far less than what his/her resources might otherwise allow.

 

D.    Informal Substitute Decision-Makers

1.     Case Example: Denise

Denise is a young woman who has an intellectual disability and a mental health disability. She has lived in the same group home since she was fifteen. When she was a minor, her mother made decisions on her behalf, such as consenting to the use of particular medications, determining which programming and activities were appropriate for her, and making decisions about financial matters. After she turned eighteen, Denise’s mother continued to make these decisions for Denise and the staff at the group home continued to view the mother as a valid substitute decision-maker. This was the case despite the fact that Denise had never been found ‘incapable’, no guardian had been appointed, and Denise had never been given an opportunity to appoint an attorney for property or personal care.

As Denise began to assert her own autonomy, conflicts arose. For example, Denise felt that she no longer needed to take all the medications prescribed by her psychiatrist. The group home staff did not accept Denise’s position. Instead, they contacted Denise’s mother, who instructed them to give Denise the medication whether she wanted it or not.

This example is not uncommon.[142] Many people informally assist others to make decisions, and do so outside of the legal framework for guardianship or substitute decision-making. These informal decision-making relationships may function well in many cases. One advantage of such relationships is that they function without the person with the disability being subjected to a formal finding of incapacity. In this sense, such informal relationships promote the principle of respect for inherent dignity and worth by placing no formal restrictions on the person’s right to legal capacity. Informal decision-making relationships can also be much more flexible than guardianships, since informal decision-makers may make decisions about specific issues only. In contrast, guardians are generally empowered to make all decisions in relation to a person’s finances and/or personal care. Such flexibility promotes the principles of respect for inherent dignity and promotion of individual autonomy and independence.

On the other hand, informal decision-making relationships are, in many cases, problematic. Informal decision-makers who try to advocate on behalf of a person with a disability or assert that person’s rights vis à vis a service provider may find that the service provider does not recognize the informal decision-maker’s status or legitimacy. The person with the disability may then be left without any advocacy support. In many situations people with disabilities report that informal decision-makers exert too much control and do not involve the person with the disability in the decision-making process. There are no legally-sanctioned monitoring or accountability mechanisms in place for informal decision-makers. People with disabilities who wish to remove or challenge their informal substitute decision-maker have no legal recourse. In situations where informal decision-makers act on the basis of an assumption that the person is ‘incapable’, that person’s dignity, worth, independence and autonomy are severely curtailed. 

 

E.    Summary

In this chapter, we have described several case examples and analyzed these examples using the rights-based principled approach developed in chapter II. What emerges are significant gaps and weaknesses in the existing monitoring and accountability mechanisms for guardians in Ontario. In many cases, the SDA does technically contain mechanisms for monitoring and redress, but these mechanisms are practically ineffective because they are not accessible to many ‘incapable’ persons. For example, the SDA provides for several court-based processes to enable guardians to seek directions or allow ‘incapable’ persons to challenge the appointment or continued role of a guardian. Such processes are inaccessible due to the costs required to initiate litigation and retain counsel, the fact that they are time consuming, legally complex, and rely on the initiative of the ‘incapable’ person. No support is available to assist ‘incapable’ persons to access legal processes. Many ‘incapable’ people are not aware that such court-based processes exist, and the SDA does not require guardians or any public authority to ensure that ‘incapable’ persons have this information through the provision of rights advice or other education.

In some cases, Ontario’s guardianship regime simply does not provide for any mechanism to address the concerns or issues that ‘incapable’ persons may face. For example, guardians may exercise control in areas where the ‘incapable’ person could make his/her own decisions or engage in decision-making with assistance from the guardian or another support. Outside of the litigation process, the SDA does not provide for any dispute resolution mechanisms that ‘incapable’ persons could access to address such concerns in a timely and accessible fashion.

People who are subject to the guardianship of the PGT may have complaints about their representative not responding or acting in a timely way, or not providing accurate legal information. The PGT has an internal complaint process, but there is no external mechanism of monitoring or oversight to ensure that people are aware of this complaint process or that such complaints are resolved. 

In the next chapter we consider selected mechanisms and approaches adopted in other jurisdictions to monitor and oversee substitute decision-makers.

 

 

 

 

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