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 court