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. 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. When Adele was released from the hospital, a Notice of Continuance of Incapacity was issued. 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. 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. Ideally, pursuant to the provisions of the SDA, 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