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.[235] 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.[236]

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. …[237]

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.[238] 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. [239] 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.[240] 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.[241] 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.[242] 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.[243] Plenary guardianship orders are still available, and, as Doug Surtees reveals, tend to dominate.[244]

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 indepe