In this chapter we identify and describe selected types of substitute decision-making in jurisdictions outside of Ontario, and the mechanisms available in those jurisdictions to monitor substitute decision-makers. The jurisdictions we selected are all common law jurisdictions, and most have either undergone or are in the process of undergoing significant reform to their substitute decision-making regimes. This chapter does not provide a complete or exhaustive review of substitute decision-making regimes in each of the jurisdictions considered. Rather, we identify and describe mechanisms that are different than those employed in Ontario, mechanisms that draw on a rights-based principled approach, or mechanisms that may provide ideas for reform in Ontario.
On July 17, 2013 the Government of Ireland published the Assisted Decision-Making (Capacity) Bill. Not yet law in Ireland, the Bill proposes comprehensive legislation on legal capacity with the aim of supporting people to exercise their decision-making autonomy to the greatest extent possible. The Bill was drafted to meet Ireland’s obligations under Article 12 of the CRPD.
The Bill sets out a continuum of decision-making options. Assisted decision-making is aimed at people who are capable of making decisions with some support and provision of relevant information. A person can appoint a decision-making assistant under a decision-making assistance agreement, and can remove the assistant at any time. People who act as assistants will be under the supervision of the Office of the Public Guardian. Decision-making authority remains with the individual. The assistant must ascertain the will and preferences of the individual and endeavour to ensure that the individual’s decisions are implemented. Assistants are prohibited from accessing information that is not reasonably required for the decision, without the consent of the individual.
Co-decision-making applies when a court has declared that a person lacks capacity to make a decision(s) alone but has capacity if assisted by a suitable person. Only a family member or friend may be appointed as a co-decision-maker under a co-decision-making agreement. A co-decision-making agreement has no legal effect unless a court approves it by issuing a co-decision-making order. Once a co-decision-making order has been issued, the agreement can be revoked or varied only with the consent of the court. The ‘incapable’ person will be able to determine which decisions s/he would like the co-decision-maker to assist with, and include this in the co-decision-making agreement. Co-decision-makers can assist the ‘incapable’ person only with decisions that are specified in the co-decision-making agreement. A co-decision-maker must explain information that is relevant to the decision, ascertain the will and preferences of the ‘incapable’ person, assist the person to communicate his/her will and preferences, and assist the person to make a decision. Co-decision-makers are prohibited from obtaining information that is not reasonably required for the decision or using information for a purpose other than the relevant decision. Co-decision-makers are accountable to the court; the court must review a co-decision-making order three to thirty-five months after the first anniversary of the making of the order, and every three years thereafter. The court may vary or rescind the co-decision-making order if the co-decision-maker acts or proposes to act beyond the scope of the agreement, if the person regains capacity, or if the relationship between the person and the co-decision-maker has broken down. Co-decision-makers must submit an annual report to the Office of the Public Guardian regarding the performance of their functions.
For people who are not able to exercise their capacity with the help of an assistant or co-decision-maker, the Bill provides for a decision-making representative to be appointed by a court. This is referred to as “facilitated decision-making” and is intended to be a last resort option. The representative is accountable to the court and subject to the supervision of the Public Guardian. The court may place limits on the kinds of decisions the representative can make and the role of the representative. The powers conferred on a representative must be as limited in scope and duration as possible. If no family member or other person is able to perform this role, the court may nominate two or more people as representatives from a panel that will be established by the Public Guardian. Representatives are prohibited from obtaining information that is not reasonably required for the decision or using information for a purpose other than the relevant decision. An ‘incapable’ person may apply to the court to vary or rescind the powers granted to a representative, and the court may do so if the representative acts or purports to act beyond the scope of the authority conferred upon him/her. Representatives must submit an annual report to the Office of the Public Guardian regarding the performance of their functions.
If a court has made an order declaring a person ‘incapable’, the Bill requires that the court review the person’s capacity at regular intervals of not more than twelve months or as specified in the order. However, the court may review the person’s capacity less frequently (up to every three years), if it is satisfied that the represented individual is unlikely to recover his/her capacity. In addition, at any time an application to review a finding of incapacity can be made to the court by the ‘incapable’ person, the Public Guardian, the ‘incapable’ person’s spouse or partner, the ‘incapable’ person’s co-decision-maker or decision-making representative, the ‘incapable’ person’s attorney, or a person specified by the court to review the person’s capacity. If the court determines that the represented person has capacity to make his/her own decisions, the court may revoke or amend the order declaring the person ‘incapable’ and may vary or discharge the order regarding the decision-making agreement.
In addition to applications to court, another monitoring mechanism provided for in the Bill is the establishment of the Office of the Public Guardian. If established, the Public Guardian will be an independent agency which is part of the Courts Service. Its functions will include supervising decision-making assistants, co-decision-makers, decision-making representatives and other types of decision-makers for ‘incapable’ persons. It will receive reports from the various types of decision-makers, as well as from special and general visitors. General and special visitors are persons appointed by the Public Guardian who will visit with the various types of decision-makers and ‘incapable’ persons. These visitors will submit reports to the Public Guardian regarding any matters that the Public Guardian specifies. Visitors may include medical practitioners and persons who have particular knowledge and experience regarding capacity issues. The Public Guardian will establish and maintain a register of decision-making agreements and orders. It must also receive and consider complaints in relation to the way in which a decision-maker is carrying out his/her duties, and address complaints that are substantiated. This may include making an application to court. The Public Guardian may control and manage an ‘incapable’ person’s property, if ordered to do so by a court.
Any party to proceedings under the Bill will be entitled to free legal advice provided that s/he qualifies financially, pursuant to the Civil Legal Aid regime. The Public Guardian may appoint a court friend for an ‘incapable’ person who is a party to court proceedings regarding determination of the person’s capacity, co-decision-making orders, decision-making representative orders, and other orders. Court friends may, among other things, attend meetings and court with the ‘incapable’ person and assist him/her, or represent the interests of the ‘incapable’ person if s/he does not attend court.
A number of civil society and disability organizations welcomed the publication of the Assisted Decision-Making (Capacity) Bill, and praised the government’s efforts to introduce legislation that recognizes the right to legal capacity set out in the CRPD. A number of organizations put forth recommendations for reforming the Bill to ensure that it is based on best international practices and human rights standards. Included among these recommendations were the following:
- People should have a real ability to challenge decisions made under the Bill, including the appointment of substitute decision-makers and the decisions they make. This should include the right to independent advocacy.
- Safeguards should be provided to address conflicts of interest between the ‘incapable’ individual and the substitute decision-maker, including an obligation on the state to investigate such situations.
- The access to justice and legal aid provisions of the Bill should be strengthened. There should be an automatic right to legal representation, regardless of means, when an application is made to court for a declaration of an individual’s capacity.
- The costs of court applications and any expenses related to the duties of decision-makers should not be automatically taken from the individual’s estate. This poses a significant financial barrier to people seeking to realize their rights under the Bill.
- The review clause currently contained in the Bill must be strengthened to ensure that amendments to the Bill are considered in light of new international thinking on legal capacity and emerging best practices in assisted decision-making. 
- Court friends should be clearly instructed to act only in accordance with the will and preferences of the person and should not access the person’s records without his/her consent. The use of court friends should not be viewed as an adequate substitute for effective legal representation. The role of court friends as compared with next friends or guardians ad litem must be clarified.
- More guidance and clarity is needed on the role and powers of special and general visitors.
- The Bill requires all types of decision-makers to respect the will and preferences of the individual, however certain discretion is retained for courts to make decisions in the “interests of relevant persons”. This language is ambiguous and could lead to courts introducing best interests tests. Greater obligations should be imposed on courts to respect the will and preferences of the individual when appointing, varying or revoking decision-making orders.
- The Bill leaves the courts to deal with declarations of mental incapacity, decision-making orders, and disputes related to these issues. Instead, a Legal Capacity Tribunal should be established as an independent decision-making body, incorporating a variety of disciplines to adjudicate disputes. This offers a more flexible and accessible alternative to the court system.
B. New York, United States of America
In New York, Article 81 of the Mental Hygiene Law and Article 17 of the Surrogate’s Court Procedure Act govern guardianship proceedings. Article 81 establishes the more modern regime, whose purpose is to:
…promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all of the decisions affecting such person’s life.
Article 81 sets out a least restrictive approach, whereby persons under guardianship are deprived of no more of their decision-making rights than is necessary in order to protect them from harm.
Article 17 establishes a regime under which courts can appoint a substitute decision-maker for an individual who has an intellectual or developmental disability. Under both statutes, substitute decision-making is imposed upon people who do not have capacity to make their own decisions.
Several monitoring and accountability mechanisms are set out in the Mental Hygiene Law. A New York court can issue an injunction or restraining order before the commencement of a guardianship proceeding or at any time after the appointment of a guardian. This allows the court to stop any person who is attempting to transfer or dispose of the ‘incapable’ person’s property or is acting in a manner that endangers the health, safety, or welfare of the person who is alleged to be incapacitated or who has been determined to be incapacitated.
New York courts may also discharge a guardian or modify the powers of a guardian if the ‘incapable’ person has fully or partially regained his/her capacity, or if the person becomes unable to provide for personal needs or property management which the guardian is not authorized to exercise.
The Mental Hygiene Law requires guardians to report on their activities. The guardian must file an initial report no later than ninety days after being appointed by the court. In the initial report, the guardian must document a complete inventory of properties and financial resources of the ‘incapable’ person. For personal needs, the guardian must provide a plan of care. The guardian must also file an annual report/accounting yearly as prescribed by the court. The statute includes a prescribed list of required information that the guardian must disclose, including information on the personal status of the ‘incapable’ person and/or the condition of the person’s finances and property that fall under the guardian’s authority. A final report must be filed when a guardian dies, is removed, suspended, discharged, resigns or when the ‘incapable’ person has died. The report incorporates the same information that must be disclosed in the annual report.
Guardians must demonstrate that they have completed the guardian education required under section 81.39 of the Mental Hygiene Law. Every guardian is required to participate in a court approved training program which emphasizes the legal duties and responsibilities of the guardian and provides an introduction to medical terminology, particularly terminology related to diagnostic and assessment procedures.
A variety of reforms have been proposed in relation to Article 81 of New York’s Mental Hygiene Law. On November 15, 2011 Cardozo Law School hosted a conference designed to develop consensus regarding guardianship reform in New York State. Several reforms were proposed in relation to enhancing monitoring and accountability of guardians, including:
- Enhancing training and supports for guardians by creating simplified, standardized forms that guardians would be required to use for initial, annual and final reports. Conference attendees recommended that these forms be available electronically. Standardizing the reporting mechanism would make it easier to train lay guardians about their reporting obligations. Related to this recommendation, conference attendees suggested that guardians should receive on-going training regarding their role and obligations. Currently, guardians are required to attend training only after their appointment. It was also suggested that court clerks and/or a hotline be available to assist guardians to fulfill their reporting obligations.
- Improving the training that court examiners receive. Court examiners are individuals appointed by the court to review annual reports that are submitted by guardians. Court examiners focus on the finances of the ‘incapable’ person and do not scrutinize the person’s personal needs or general well-being to the same extent. More training for court examiners on personal needs monitoring should be provided. Annual reports filed by guardians should include more specific information on the ‘incapable’ person’s residential status, medical treatment and social activities. This would help to ensure that persons under guardianship are living in the least restrictive setting possible. It was also recommended that the “least restrictive setting” standard should be incorporated into Article 81, and that it should override the goal of conserving the ‘incapable’ person’s funds.
- Evaluating persons under guardianship regularly to determine whether the guardianship should continue or be terminated. Conference attendees recommended that more free legal services be provided to persons who wish to terminate their guardianship.
- Developing a pilot Volunteer Monitoring Program in which volunteers would make personal visits to persons under guardianship to monitor the person’s living situation and the actions of the person’s guardian. Under the current system in New York, guardians are supposed to visit ‘incapable’ persons four times per year and report on their visits to court examiners. However, the court examiner does not verify the information that the guardian reports. If the pilot Volunteer Monitoring Program succeeds, a more permanent program would be set up as a not-for-profit organization which would train and supervise volunteer monitors from a variety of educational and professional backgrounds, including social work, law and accounting.
- Creating a standardized complaint procedure by which concerned persons or persons under guardianship could complain about a guardian’s conduct. The current procedure in New York requires the concerned person to complain to the judge who oversees that particular guardianship. Each judge handles complaints differently. Conference attendees recommended that a Guardianship Ombudsman’s Office be created to receive and handle complaints about the actions of guardians.
In addition to these reforms, conference attendees also made recommendations regarding moving towards a system of supported decision-making instead of substitute decision-making. It was noted that exploring law reform options for supported decision-making was important in order to comply with the CRPD. Conference attendees recommended exploring the availability of funding for a supported decision-making pilot program, which could explore the use of supports instead of guardianships. 
C. Victoria, Australia
In the Australian state of Victoria three different statutes govern the appointment of substitute decision-makers in various circumstances. A substitute decision-maker may be appointed to make personal or lifestyle decisions, financial decisions, and medical or other health care decisions. Under the Guardianship and Administration Act (“G&A Act”), the Victorian Civil and Administrative Tribunal (“VCAT”) has the power to appoint a guardian or administrator for a person whose disability impairs his/her judgement and who needs a substitute decision-maker. The G&A Act defines a person with a disability as someone with an intellectual disability, mental disability, brain injury, physical disability or dementia. VCAT can make an order for either plenary or limited guardianship. Plenary guardianship orders are rare; they convey broad powers to make decisions for the ‘incapable’ person. More commonly, VCAT appoints a person as a guardian with a limited range of powers, or for specific decisions related to personal and lifestyle matters stipulated in the VCAT order. VCAT may also order an administrator to make decisions about all or part of an ‘incapable’ person’s estate. The duration of a VCAT appointment is specified in the order. It is usually no longer than three years, but can be renewed. A VCAT appointed guardian can be an individual, family member, friend or the Public Advocate. A VCAT appointed administrator can be an individual, a professional with appropriate expertise or a trustee company. It is also possible for individuals to self-appoint enduring guardians or attorneys, whose powers are on-going.
Guardians and administrators appointed by VCAT are required to act in the represented person’s best interests. Guardians must encourage the ‘incapable’ person to participate as much as possible in the community; encourage the person to be independent; protect the person from neglect, abuse or exploitation; and consult with the person and take his/her wishes into account. The G&A Act requires VCAT to consider whether less restrictive options are available when deciding whether a person needs a guardian or an administrator.
VCAT has primary responsibility for overseeing the activities of substitute decision-makers. In addition to making and reviewing guardianship and administration orders, VCAT also hears applications in cases where it is alleged that guardians are acting negligently, incompetently or contrary to the best interests of the individual. The Public Advocate assists VCAT by conducting investigations and providing VCAT with reports. If VCAT determines that a substitute decision-maker has not fulfilled its duties or that a person has regained capacity, VCAT may remove or vary the decision-maker’s authority to act. Guardians and administrators are subject to regular assessments of their appointment by VCAT. For guardians this usually happens at least once a year, and for administrators once every three years. After being appointed by VCAT, administrators are required to file a financial plan explaining how they will manage the ‘incapable’ person’s estate. Administrators are also required to file annual statements of accounts, which are examined by State Trustees. Breach of the G&A Act may incur a criminal penalty of up to $2443.
Substitute decision-makers appointed by an enduring guardian or power of attorney are not subject to any regular external assessment. Such arrangements are generally private, unless an application is made to VCAT, in which case VCAT will review the extent to which the substitute decision-maker is fulfilling his/her obligations and responsibilities.
The G&A Act establishes the Public Advocate as an independent statutory official with a broad role to promote and safeguard the rights and interests of people with disabilities. The major functions of the Public Advocate include promoting the development of accessible and rights-enhancing services for people with disabilities, and supporting the establishment of advocacy programs, community education and family and community guardianship for people with disabilities. The Public Advocate is mandated to act as guardian or alternative guardian when appointed by the VCAT.  Staff at the Office of the Public Advocate or volunteers in a community guardianship program fulfill this function. The Office is also required to make applications to VCAT for a guardian or administrator to be appointed or an existing order reassessed; seek assistance from any institution, welfare organization or service provider on behalf of a person with a disability; give advice about the G&A Act and make representations on behalf of a person with a disability; investigate complaints or allegations of abuse or exploitation of people with disabilities; and investigate any need for or inappropriate use of guardianship. The Public Advocate conducts advocacy on behalf of people with disabilities, which can include making phone calls, writing letters, arranging meetings, making formal complaints, conducting mediations or legal cases. This advocacy is, however, considered a last resort service that focuses on the best interests of the person with a disability who is at risk of abuse, neglect or exploitation. The Public Advocate works with VCAT to provide optional training to newly-appointed guardians and administrators. It also publishes guides for guardians and enduring guardians, administrators and other substitute decision-makers, and conducts community education sessions. The Public Advocate operates a private guardian support program and a general telephone advice service.
The G&A Act originally provided for the Public Trustee to be a preferred administrator. However, since 1999, the Public Trustee has been replaced by State Trustees, a state owned company set up to provide financial services, including acting as administrator when appointed by VCAT.
In 2012 the Victorian Law Reform Commission published and tabled in Parliament a report on guardianship reform in Victoria. The report was initiated at the request of the Attorney General for Victoria, and was the result of over two years of research and consultation with stakeholders. The Report makes a number of recommendations for reforming substitute decision-making legislation in Victoria, including:
- Enhanced training and education for substitute decision-makers is required. New guardianship legislation should permit VCAT to appoint a person as a guardian on condition that the person undertake a designated training program. The Public Advocate and State Trustees should be funded to provide this training and to provide information to the general community on the role and responsibilities of guardians.
- New guardianship legislation should require all substitute decision-makers to undertake in writing to act in accordance with their responsibilities and duties. The Victorian Law Reform Commission did not recommend any sanction for failure to comply with an undertaking, however these documents would be available to be used in any legal or administrative proceedings regarding failure to comply with a particular duty or obligation.
- Some reform of guardians’ reporting requirements is necessary. VCAT should have the power to direct a more limited form of reporting when the financial administrator is responsible for managing a small estate, such as a public pension or social assistance. VCAT should have discretionary power to direct a financial administrator to file an accounting at any time. This recommendation was influenced by a concern from stakeholders that overly onerous reporting requirements would act as a disincentive to undertaking the role of a guardian or administrator.
- New guardianship legislation should provide that VCAT have jurisdiction to adjudicate any claim against a substitute decision-maker for abuse or misuse of power or failure to perform his/her duties that is presently within the jurisdiction of the courts. VCAT should have the power to order any remedy that a court could order in these proceedings, including recovery from a substitute decision-maker of funds that were misused. VCAT should be permitted to transfer any cases to the court if the court is a more appropriate venue.
- New guardianship legislation should provide that it is unlawful for a person who cares for an ‘incapable’ person to abuse, neglect or exploit that person. Currently, a person who is found to have committed this wrong may be criminally responsible, however the Law Reform Commission found that the criminal justice system may not be the most effective way to address these wrongs. The Commission recommended that persons found to have abused, neglected or exploited an ‘incapable’ person should be liable to a civil penalty.
- The Public Advocate should have the function of receiving and investigating complaints in relation to the abuse, neglect or exploitation of ‘incapable’ persons, and the misuse of powers by private substitute decision-makers. The Public Advocate should have expanded investigative powers.
- New guardianship legislation should permit the Public Advocate to give the Chief Police Commissioner a report concerning any investigations that office conducts, and provide the police with access to any evidence gathered during the investigation, if the Public Advocate believes that the police should consider initiating criminal proceedings against the alleged wrongdoer.
- New guardianship legislation should provide that the Public Advocate has the function and power to advocate for the rights and interests of persons with a disability, especially those who are found to be ‘incapable’. The Public Advocate should engage in individual and systemic advocacy. The Public Advocate should be entitled to seek leave to participate in court or tribunal proceedings where the rights and interests of a person with a disability are in question.
- The Public Guardian should have primary responsibility for educating the public about guardianship laws.
- The Public Guardian should receive additional resources to carry out its functions.
The Commission decided not to recommend periodic reporting by private guardians and attorneys. The Commission agreed with the Public Advocate, who argued that these reports are unlikely to promote good decision-making by guardians, and that the cost of reviewing the reports is better invested in training guardians to perform their functions well. The Commission also decided not to recommend random investigation and auditing of substitute decision-makers. It was felt that this would not be a useful or cost-effective measure, and that it was better to encourage appointments of qualified substitute decision-makers and to provide these people with high quality training and support.
This chapter’s overview of guardianship legislation and recommendations for reform in Ireland, New York, and Australia demonstrates that a number of jurisdictions have made significant efforts to ensure that their guardianship regimes comply with the requirements of the CRPD. The general trend is to ensure that:
- guardianships are employed only when absolutely necessary;
- both the scope and duration of guardianships are limited;
- guardians receive training and support to ensure they understand their obligations;
- guardians must report on their activities;
- guardians’ activities are monitored and supervised;
- ‘incapable’ persons’ receive rights advice and advocacy supports;
- ‘incapable’ persons are offered the opportunity to be re-assessed on a regular basis;
- mechanisms are in place to deal with disputes between ‘incapable’ persons and their guardians;
- ‘incapable’ persons have access to free legal advice and assistance when required.
The mechanisms in place to monitor and oversee guardians in these jurisdictions may offer guidance on how Ontario’s guardianship regime can be reformed to better protect and promote the rights of ‘incapable’ persons.
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