A. Opportunities for Reform in Ontario
In many jurisdictions around the world, people with disabilities, disability organizations and those who support and advocate for people with disabilities have called for reform to existing guardianship and substitute decision-making regimes that would make those regimes more consistent with the rights and principles articulated in the CRPD. Some have called for the elimination of guardianship altogether. In many jurisdictions, steps have already been taken towards such reform. In Ireland, as we have seen, new proposed legislation recognizes a variety of decision-making relationships, including assisted decision-making and co-decision-making. In New York, advocates have called for the establishment of a supported decision-making pilot program to explore the use of supports instead of guardianships. And in Australia, the Victorian Law Reform Commission recommended the introduction of supporters and co-decision-makers to provide more options to people who need decision-making assistance.
Similar calls for reform have been made by disability organizations and advocates in Canada. However, Canada has reserved the right of provinces, which ultimately have jurisdiction over this area of law, to maintain substitute decision-making. Canada ratified the CRPD on March 11, 2010 with the following reservation:
Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law.
To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal. …
It is clear from this reservation that Canada intends to maintain substitute decision-making as a valid legal framework.
Despite Canada’s reservation, a number of provinces and territories have already explored alternatives to substitute decision-making, and in some cases new regimes have been introduced offering various decision-making options. In most cases these options are available in addition to, and not as complete replacements for, existing substitute decision-making regimes. For instance in British Columbia, the Representation Agreement Act, which came into force in 2001, provides that capable adults may appoint representative(s) to help them make decisions or to make decisions on the adult’s behalf.  Representatives may make decisions concerning the adult’s personal care, financial affairs, payment of bills, purchase of food, housing, services necessary for personal care, certain health care decisions, and obtain legal services and instruct counsel. Representation Agreements offer a legally sanctioned form of assistance or support to make one’s own decisions. At the same time, adult guardianships continue to operate in British Columbia. In Saskatchewan, the Adult Guardianship and Co-decision-making Act provides that a judge may appoint a co-decision-maker for adults, where the court is of the opinion that it is in the adult’s best interests and the adult requires assistance in order to make reasonable decisions. The inclusion in the Saskatchewan statute of a best interests test and qualification regarding “reasonable decisions” indicate some departure from the rights and principles contained in the CRPD. Despite this concern, co-decision-making arrangements provide a less restrictive alternative to full guardianship, since the co-decision-maker’s role is to advise the person or share authority to make decisions with him/her. Plenary guardianship orders are still available, and, as Doug Surtees reveals, tend to dominate.
Thus, tensions exist in the Canadian context. Persons with disabilities and disability organizations have advocated for reform to existing guardianship regimes. Several provinces and territories already provide for decision-making arrangements that offer less intrusive alternatives to guardianship, although in most jurisdictions guardianship continues to operate as well. By ratifying the CRPD, the federal government has indicated its agreement to progressively realize the rights and freedoms contained therein, including the right to legal capacity. However, the federal government has also reserved the right for provinces and territories to maintain substitute decision-making regimes, including guardianship. Given this context, it appears that there are opportunities to advocate for reform to Ontario’s substitute decision-making regime. However, guardianship or another form of substitute decision-making may continue to operate along-side other, less intrusive decision-making relationships.
The recommendations we make below are intended to ensure that Ontario law related to legal capacity and decision-making promotes the rights of persons with capacity issues to the fullest extent possible. In this vein, the reforms we propose are based upon the rights-based principled framework outlined in chapter II.
B. A New Legal Capacity Regime
Reform to Ontario’s substitute decision-making regime requires major change to the existing legislative framework related to capacity and decision-making. The goal of such reform should be to create Ontario legislation regarding legal capacity that complies completely with the rights and principles contained in the CRPD and reflected in the LCO’s Framework. Such reform would likely include a variety of new decision-making relationships and supports, and few, if any, guardianship-type relationships. For example assisted decision-making, co-decision-making, supported decision-making, facilitated decision-making and other types of relationships offer ways to support people with capacity issues to exercise their legal capacity which are less restrictive than substitute decision-making. Nevertheless, despite the implementation of some or all of these new types of decision-making relationships, some people with capacity issues may still require a substitute decision-maker. Therefore, key to the reform will be determining whether substitute decision-making in the form of guardianship should be maintained, or whether alternatives exist that would provide an appropriate response to ‘incapacity’. The work of the LCO’s project on Legal Capacity, Guardianship and Decision-making would form an excellent basis for this legislative reform.
While the government is developing precise legislative amendments and reforms, it will be necessary to consult meaningfully with the disability community and other communities who are regularly subject to formal or informal substitute decision-making. Under the rights-based principled approach, the promotion of full and effective participation and inclusion in society requires that people with disabilities have opportunities to provide input into the laws and policies that affect them. Private substitute decision-makers, the PGT, informal substitute decision-makers and other stakeholders such as the provincial Ombudsman must also be consulted. These consultations will assist the government to ensure that legislative reforms are workable and promote and protect the rights of persons with capacity issues.
It will be important to ensure that any changes to legislation consider the prevalence and experiences of persons who are subject to informal substitute decision-makers. Designing a new legal capacity regime is an opportunity to formalize some of these arrangements, thereby offering greater protection to ‘incapable’ persons. However, the advantages of flexibility and limited decision-making powers that are inherent in well-functioning informal substitute decision-making arrangements must not be lost. Moreover, informal substitute decision-making is attractive to some because it involves little in the way of costs and legal or bureaucratic processes. Great care must be taken to develop decision-making arrangements that will be appropriate for persons who are currently subject to informal substitute decision-making.
Any new legislation or programs related to legal capacity should be reviewed and evaluated after having operated for some time. This must be done by and in consultation with persons with capacity issues.
While the recommendations that follow flow from our analysis of Ontario’s existing guardianship regime, they can, with appropriate modifications, be applied to any system of decision-making. The protections and supports outlined in these recommendations are necessary elements of any decision-making regime that strives to protect the rights and promote the autonomy of persons with capacity issues.
C. Supporting ‘Incapable’ Persons to Assert their Legal Capacity
1. Providing Rights Advice to ‘Incapable’ Persons
A new legal capacity regime must include the provision of rights advice to ‘incapable’ persons. Within Ontario’s current substitute decision-making regime, there is no statutory requirement that persons subject to a guardianship, either statutory or court-appointed, will obtain rights advice. The PGT may provide basic rights advice to persons under its guardianship, but there is no guarantee that this is done in every case. It does not appear that the Superior Court provides any rights advice or information to persons subject to a court-appointed guardianship. While guardians have an obligation to inform the ‘incapable’ person that a guardianship has been imposed and to explain the duties and obligations of the guardian, and, in some cases, inform the person of their right to challenge a negative capacity assessment, there is no process to confirm that this has actually been done. Furthermore, this information is not the same as fulsome rights advice. Even in cases where the guardian fulfills the obligation to inform the ‘incapable’ person about the guardian’s duties and obligations, the ‘incapable’ person may still be unaware of his/her rights. In addition to information about the duties and obligations of a guardian, fulsome rights advice would include information about the ‘incapable’ person’s right to be included in decision-making, right to receive periodic accounting, right to challenge the actions or decisions of his/her guardian, and other rights. Rights advice would also include information about how the ‘incapable’ person could assert his/her rights, and what supports are available to assist him/her to do so.
Providing rights advice to ‘incapable’ persons is one practical way in which to promote individual autonomy and independence, and full and effective participation. The first principle requires that people with disabilities have access to information needed to understand and enforce their rights. The provision of rights advice will contribute to ensuring that ‘incapable’ persons are aware that they can participate in decisions that affect them or challenge the actions of their decision-makers. Knowledge of their rights and mechanisms to assert those rights would provide some degree of empowerment to ‘incapable’ persons. The provision of rights advice to every person who is subject to some form of decision-making is a basic step towards protecting and promoting the rights of ‘incapable’ persons.
The principle of accessibility is important to consider. Rights advice must be provided in a manner that accommodates the individual’s disability; the information must be communicated in clear language, in a manner that is accessible to the individual. If the person is not able to absorb information at the time the guardian is appointed, rights advice should be made available to the person when s/he is ready to receive it. Rights advice must also be available on an on-going basis, should new concerns arise.
A designated person or body should be obliged to facilitate the provision of rights advice to ‘incapable’ persons. This may be by way of written information, videos, discussion, skits or any other format that would address the communication needs of the ‘incapable’ person. Clear language principles and design should also be used.
Attention will need to be paid to the question of who is responsible for providing rights advice to ‘incapable’ persons. Some may argue that obliging decision-makers to provide rights advice is unrealistic or too onerous a burden to place on them. However, the principle of accessibility requires that legal and bureaucratic safeguards related to capacity must be accessible to persons with disabilities. It is crucial that rights advice information be provided in a manner that the ‘incapable’ person can understand, otherwise it is not useful. If it is to be decision-makers who are obligated to facilitate the provision of rights advice to ‘incapable’ persons, then the additional burden placed on them may be off-set by providing them with tools, resources and supports to enable them to fulfill this obligation meaningfully.
Alternatively, a visitor system, similar to the one planned in Ireland or recommended in New York, may be considered. This may be preferable to requiring decision-makers to provide rights advice, since there may be times when advising an ‘incapable’ person would cause a conflict of interest for the decision-maker. The visitor may be a trained volunteer or a professional who visits the ‘incapable’ person to deliver the rights advice and answer any questions the person may have about the decision-making arrangement. S/he may also provide on-going rights advice, should new concerns arise. The visitor system would likely require an administrative structure to develop the rights advice information, ensure that all ‘incapable’ persons receive a visit, and avoid duplication.
2. Providing Advocacy Support to ‘Incapable’ Persons
Article 12 of the CRPD requires states to take measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. Although persons subject to guardianship have been found to be ‘incapable’, they may exercise their legal capacity by deciding to challenge the finding of incapacity or the actions of their guardian, or by exercising the rights they have been advised about. Article 12 requires that supports be provided to enable persons with disabilities to exercise their legal capacity in these ways. Supports may include legal information or advice, advocacy support, legal representation, and other supports.
In particular, ‘incapable’ persons who wish to challenge a finding of incapacity must have access to legal advice and capacity assessments. Currently, individuals may be able to obtain legal aid funding for legal representation in guardianship or other proceedings involving substitute decision-makers. However, such funding is generally at the discretion of legal aid, extremely limited and in some parts of the province not available at all. A lack of legal advice or financial resources should not prevent a person from asserting his/her autonomy or defending his/her right to terminate a decision-making arrangement. Where a decision-maker refuses to arrange or pay for a capacity assessment, ‘incapable’ persons must be able to exercise their right to obtain an assessment and challenge the decision-making arrangement, regardless of their ability to pay. Persons informing ‘incapable’ persons of their rights should, therefore, also include information about what services are available to arrange and pay for capacity assessments and legal advice or representation.
3. Requiring Periodic Capacity Assessments
A major weakness of the current substitute decision-making regime is that court-appointed guardians are not required to arrange for the ‘incapable’ person’s capacity to be reassessed within any particular period of time. The only way to ensure that a person subject to a court-appointed guardianship is reassessed is for this requirement to be included in the order appointing the guardian. If no such order is made, there is little an individual can do to compel a court-appointed guardian to arrange for a capacity assessment. If a court-appointed guardian refuses to arrange or pay for an assessment, the ‘incapable’ person could bring a motion to court to obtain an assessment. However, where an individual subject to a court-appointed guardianship lacks sufficient resources to pay for an assessment, there is no guarantee that any other public authority would do so.
Statutory guardians are obliged to arrange a capacity assessment if the ‘incapable’ person requests one, as long as the person has not been assessed within the last six months. If the ‘incapable’ person lacks the resources to pay for an assessment, s/he may be able to access the PGT’s fund. Nevertheless, the ‘incapable’ person must be aware of his/her right to be assessed, must make a request, and must be aware that s/he can ask the PGT to pay for the assessment.
Under the rights-based principled approach to legal capacity, the need for a substitute decision-maker should be subject to regular review by a competent, independent and impartial public authority or statutory body. This is important in order to ensure that substitute decision-making arrangements do not last longer than necessary, and to provide ‘incapable’ persons with opportunities to reassert their right to legal capacity. Therefore, in Ontario’s new legal capacity regime, persons subject to substitute decision-making arrangements must be notified of their right to have their capacity reassessed, and of the existence of public funds for those who are impecunious. Where a court orders a substitute decision-making arrangement, the order must require the decision-maker to offer and/or arrange for a capacity assessment at specified intervals of time.
4. Increasing the Number of Time-Limited Decision-Making Arrangements
Another way to protect the rights of persons subject to substitute decision-making arrangements and to ensure that these arrangements do not endure for any longer than absolutely necessary is to impose time limits on all such arrangements, whether statutory or court-appointed. Currently, courts are empowered to create time-limited guardianship orders, pursuant to section 25(2) of the SDA, however it is not known how often this section is invoked. In other jurisdictions all guardianships are time-limited. For example, in Australia, as we have seen, no guardian is appointed for longer than three years.
Consideration should be given to making all substitute decision-making arrangements in Ontario limited in time. Upon the expiration of the appointment, the decision-maker could seek a renewal of the arrangement. Such renewal would be subject to a review process, whereby the ‘incapable’ person’s circumstances would be reconsidered. The substitute decision-making arrangement could be modified to enhance or reduce the decision-maker’s powers, depending on the ‘incapable’ person’s circumstances. The review process would provide an opportunity for individuals to challenge their ‘incapable’ status, seek to terminate the arrangement, or raise concerns about their decision-makers. Were such reviews to be instituted, consideration would have to be given to what body would oversee and administer the process.
Ideally, legal advice and representation would be made available to ‘incapable’ persons in advance of the review process, in order to allow them to understand their rights, canvas their legal options and challenge the substitute decision-making arrangement if they chose to do so.
A review process for all substitute decision-making arrangements in Ontario may appear onerous. However, evidence indicates that even where alternatives to such arrangements are available, full or unrestricted substitute decision-making prevails. For example, a recent study of 446 guardianship applications in Saskatchewan revealed that despite legislative changes to allow for co-decision making and partial guardianship-type relationships, most guardianship orders remain plenary. This was the case despite legislation stating that a guardian should not be given power over all matters of property management or personal care if an order providing for more limited powers was sufficient. This same trend exists in other jurisdictions, such as New York, where it is common for prospective guardians to ask for and receive a broader range of powers and control than may be required in many instances. These studies demonstrate how important it is to regularly review substitute decision-making arrangements to ensure that they are as limited, in both time and power, as possible in a given circumstance.
D. Ensuring that Decision-Makers Comply with Their Legal Obligations
1. Educating Decision-Makers
Currently, the SDA sets out a number of obligations that guardians must fulfil in respect of the ‘incapable’ person, however guardians receive no training on these obligations. In the new legal capacity regime, consideration should be given to developing training and/or education programs for decision-makers to ensure that they are aware of their obligations, the scope of their various roles, and the rights of ‘incapable’ persons. Decision-makers who have this knowledge may be less likely to infringe upon the rights of ‘incapable’ persons, especially when such infringement is accidental, unintentional or due to ignorance of the law.
Training programs for decision-makers exist in other jurisdictions, including New York and Victoria. Further investigation into the training programs available in these and other jurisdictions is warranted, as it may provide useful insight for considering whether to develop similar training for Ontario decision-makers, what the content of such training should be, and how to best implement the training. At minimum, the training should educate decision-makers about their legal obligations under the SDA; the scope and limits of their decision-making authority; and the rights of the ‘incapable’ person. The training should educate decision-makers about how to carry out their functions in a manner that respects the rights-based principled approach to legal capacity. For example, decision-makers should understand the principle of protecting and promoting the autonomy and independence of ‘incapable’ persons, and should be aware of their role in implementing this principle in practice.
In New York, guardian education is mandatory; every guardian is required to participate in a court approved training program. In Victoria, guardian education is not mandatory. However in 2012 the Victorian Law Reform Commission recommended enhancing training and education for guardians, and making guardianship appointments subject to a condition that the guardian would complete training. In Ontario, consideration should be given as to whether education for decision-makers should be mandatory or left to the discretion of each decision-maker. Mandatory education would be preferable as a means to enhancing the extent to which decision-makers comply with their legal obligations. However, it has been noted that decision-makers and the broader community may view mandatory education and reporting as too onerous a burden to place upon decision-makers, many of whom are family members or friends who are not remunerated for their services. From this perspective, mandatory education and reporting may act as disincentives and decrease the number of private individuals who are willing to act as decision-makers. Given the importance of education, consideration should be given to developing various methods of training, such as short webinars, seminars, written materials, and discussion groups. Offering a free, accessible method of training may help to make education for decision-makers less onerous.
Consideration should also be given to developing a system to ensure that decision-makers have completed their training before they are given authority to make decisions on behalf of the ‘incapable’ person. Continuing education could be offered on an on-going basis to help them refresh and update their knowledge.
2. Requiring Decision-Makers to Report
Creating reporting requirements is one way to strengthen the monitoring and oversight of decision-makers in Ontario. Article 12 of the CRPD requires states to put in place safeguards relating to the exercise of legal capacity by persons with disabilities; one such safeguard includes subjecting decision-makers to regular review by a competent, independent and impartial authority or judicial body. Periodic reporting by decision-makers would create an opportunity for them to reflect on the extent to which they are fulfilling their duties and obligations to the ‘incapable’ person. It would also create some mechanism for monitoring the actions of decision-makers.
Decision-makers’ reports should indicate what they have done to promote the autonomy and decision-making capacity of the ‘incapable’ person, and how they have encouraged the person to be involved in the community. Reports should include any efforts the decision-maker has made to involve supportive family or friends of the ‘incapable’ person in enhancing the person’s quality of life. Decision-makers should also report any concerns expressed by the ‘incapable’ person along with an account of what steps were taken to address those concerns.
Currently, under the SDA, ‘incapable’ persons may request a passing of accounts. Instead, under the new legal capacity regime, the obligation for a decision-maker to pass accounts should be made mandatory and included in all decision-making appointments or orders, regardless of whether anyone has expressed concerns about the decision-maker’s actions or requested a passing of accounts. Decision-makers must be required to pass their accounts at regular intervals, such as annually or more often, depending on the circumstances of the ‘incapable’ person. Accounts may be submitted with reports, in order to minimize the incidences of monitoring.
Ideally, reporting requirements would be mandatory, rather than left to the discretion of the individual decision-maker. However, as with education, other jurisdictions have noted concerns about mandatory reporting being too onerous for decision-makers. Careful consideration must be given to balancing the interests of decision-makers with the need for effective, regular monitoring of their actions.
3. Establishing a Monitoring and Advocacy Office
Consideration should be given to establishing an independent, competent, impartial body whose role would be to monitor and oversee decision-makers, address situations in which decision-makers are abusing or misusing their powers, and deal with complaints from ‘incapable’ persons. Establishing such an office is important in order to increase the accountability of decision-makers. Respect for the rights and interests of ‘incapable’ persons would be promoted and enhanced by the creation of a monitoring and advocacy office. Establishing such an office would give practical effect to the principle of respect for inherent dignity and worth, which requires mechanisms to ensure that people with disabilities can raise concerns about mistreatment or abuse, and have those concerns addressed in a meaningful way.
A monitoring and advocacy office could enhance oversight of decision-makers in several ways. The office could receive and review reports and accounts from decision-makers. If it is apparent that a decision-maker is not aware of or is not fulfilling his/her obligations and duties, the office may investigate and/or require him/her to take steps to comply with any statutory requirements. The office could act as a resource for decision-makers, similar to the one offered in Victoria and recommended in New York. The office could design and deliver training for decision-makers, produce educational and resource materials to support them, and offer a help-line that decision-makers could access to seek information and advice.
The office could also manage the visitor system that was recommended earlier. In this respect, the office would ensure that ‘incapable’ persons receive independent rights advice. The office would receive reports and concerns from visitors about how a particular decision-making arrangement is functioning. If a visitor reported serious concerns about a decision-maker misusing or abusing his/her powers, the office would be empowered to investigate and address these concerns.
The office could receive and deal with complaints about decision-makers from ‘incapable’ persons. This is a key accountability measure that Ontario currently lacks. Upon receiving a complaint, the office would contact the decision-maker to determine whether it is possible to resolve the complaint quickly and informally. If this was not possible, the office may initiate an investigation. The office would likely require a range of investigatory powers, as well as access to private information held by the decision-maker and ‘incapable’ person. Once an investigation is concluded, the office would meet with or contact the ‘incapable’ person and the decision-maker to explain the results of the investigation and try to resolve the complaint. Mediation and other forms of dispute-resolution would be utilized.
If the office is not able to resolve the complaint, it may recommend that the ‘incapable’ person receive legal advice about whether it is possible and/or advisable to pursue litigation. Ideally, this legal advice would be provided on a pro bono basis, or without any cost to low-income ‘incapable’ persons.
Other jurisdictions have similar mechanisms. For example, the bill introduced in Ireland establishes the Office of the Public Guardian as an independent agency mandated to supervise the various types of decision-makers, receive reports from decision-makers, and receive and consider complaints about decision-makers. Further investigation into the monitoring and advocacy offices available in other jurisdictions is warranted, as it may provide useful insight for considering how to implement this mechanism in Ontario.
Assuming that Ontario’s PGT were to remain part of a new legal capacity regime, one important consideration is the relationship between the PGT and a new monitoring and advocacy office. In some jurisdictions, such as Victoria and Ireland, the monitoring and advocacy office includes the substitute decision-maker of last resort. One concern is that such a relationship may create a conflict of interest with respect to PGT guardians. A monitoring and advocacy office that includes the PGT may not be able to investigate or resolve complaints from an ‘incapable’ person who is subject to the guardianship of the PGT. Even if administrative measures were taken to prevent such a conflict from arising, such as separating the functions of monitoring and advocacy from guardianship, ‘incapable’ persons may not trust the office to be impartial. It is vital that the office is, and is seen to be, impartial, independent and competent, as required by Article 12 of the CRPD.
The establishment of such an office would reduce some of the discretionary functions which currently fall within the purview of the PGT. For example, currently the PGT may, but is not required to, investigate or take other actions in response to complaints from individuals about their guardians. If a monitoring and advocacy officer were established, it would perform this role. Reducing some of the functions of the PGT would allow the PGT to focus solely on its role as substitute decision-maker of last resort. This may enable the PGT to devote additional resources to serving its clients, which in turn may improve the level of service and allow the PGT to be more responsive to client concerns and complaints. 
4. Enacting New Statutory Provisions
A new legal capacity regime should include legislative provisions that reflect the principles and safeguards set out in the CRPD, and reflected in the LCO’s Framework. Currently, certain provisions of the SDA do reflect these principles, such as the presumption of capacity, the requirement for guardians to encourage ‘incapable’ persons to participate in decision-making, and the ability of a court to appoint a guardian for a limited period of time. However, additional provisions are needed in order to strengthen the protections that new legislation should offer to ‘incapable’ persons.
Consideration should be given to a new legal capacity regime including a set of guiding principles that decision-makers must utilize when making decisions with or on behalf of ‘incapable’ persons. These principles could draw directly from the rights-based principled approach to legal capacity, and include respect for inherent dignity and worth; respect for and promotion of individual autonomy and independence; promotion of full and effective participation and inclusion in society; promotion of substantive equality; and promotion of accessibility.
Similar to the Victorian Law Reform Commission’s recommendation, new legislative provisions should require all decision-makers to undertake in writing to act in accordance with their statutory responsibilities and duties. These documents would be available for use in any legal or administrative proceedings regarding failure to comply with a particular duty or obligation.
New legislative provisions should make it unlawful for a person who cares for an ‘incapable’ person to abuse, neglect or exploit that person. As recommended in Victoria, persons found to have contravened this provision should be liable to a civil penalty.
E. Strengthening Mechanisms for Resolving Disputes between ‘Incapable’ Persons and Decision-Makers
The case examples we presented earlier in this paper demonstrate that a significant portion of the problems that arise in the context of guardianships involve issues other than financial mismanagement or fraud by the guardian. Many issues relate to conflict over how much freedom and autonomy a guardian allows a person who is subject to his/her guardianship. These are rarely issues that require litigation. However, they are issues of key importance to the daily lives of persons subject to guardianships. If left unresolved, these disputes can create serious tension between an ‘incapable’ person and his/her guardian. In cases where the issue may be resolved through litigation, this process is not accessible for many ‘incapable’ persons. Therefore, in a new legal capacity regime, incapable’ persons must have access to effective dispute resolution mechanisms. This would reduce tensions between decision-makers and ‘incapable’ persons, preserve productive relations between them, and reduce the need for litigation.
Dispute resolution mechanisms may take various forms. They may include formal or informal mediation. In some cases the provision of information and rights advice to the parties may resolve the conflict by clarifying the role and powers of the decision-maker. Complaint mechanisms and investigations may be required in some cases. Whatever forms the dispute resolution mechanisms take, a key consideration will be ensuring that such mechanisms respect the principle of accessibility, which requires that safeguards related to legal capacity be accessible for persons with disabilities. Consideration should be given to providing supports to assist persons with capacity issues to access and use dispute resolution mechanisms. Such mechanisms must also be crafted to respect the principle of inherent dignity and worth, which requires meaningful mechanisms to ensure that people can raise concerns about mistreatment or abuse and receive meaningful redress. At minimum, dispute resolution mechanisms must be provided in a timely manner, must be navigable and useable by persons with capacity issues, and must be provided at no cost to low-income persons.
Consideration must be given to the management and administration of dispute resolution mechanisms. These functions should be performed by an independent, impartial body, which has knowledge of the law and the unique context of assisted and substitute decision-making relationships. The monitoring and advocacy office recommended earlier may be an appropriate body to perform these functions.
Many of the reforms we suggest would likely require new public expenditures. This may lead some to criticize our suggested reforms as unrealistic, given the current environment of fiscal restraint. It is important to note, however, that many of our suggested reforms, including the creation of a new monitoring and advocacy office, would allow decision-making arrangements to function much more effectively. For example, with a monitoring and advocacy office dedicated to providing both education to decision-makers and rights advice to ‘incapable’ persons, the instances of disputes due to decision-makers misunderstanding the scope of their obligations would be reduced. The office would assist decision-makers and ‘incapable’ persons to resolve disagreements using a variety of dispute resolution mechanisms. This would reduce the need to use litigation to resolve such disputes, thereby alleviating some pressure on the court system. It is likely that the mechanisms employed by the office would allow for the resolution of disputes in a more timely and cost effective manner.
A less tangible but certainly no less important result of creating a monitoring and advocacy office would be a legal capacity regime that functions more efficiently and better protects the rights and autonomy of ‘incapable’ persons. The more quickly disputes between decision-makers and ‘incapable’ persons can be resolved, the less chance there is for the relationship to break down into anger, mistrust and frustration. Importantly, the monitoring and advocacy office would offer enhanced protections for ‘incapable’ persons. This is particularly the case with the large number of disputes that arise due to conflict over the amount of freedom demanded by an ‘incapable’ person or the amount of control exerted by a decision-maker. Although these kinds of disputes can create major problems between the decision-maker and the ‘incapable’ person, they do not fit within any of the processes currently available to deal with conflict that arises in a substitute decision-making relationship. These kinds of disputes could be dealt with by the monitoring and advocacy office in a timely and cost effective manner. The more the legal capacity regime is able to preserve relationships between decision-makers and ’incapable’ persons, the better able the system will be to defend the interests of incapable persons.
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