This report was commissioned by the Law Commission of Ontario as part of its project on Legal Capacity, Decision-Making and Guardianship. In this report we employ a rights-based principled approach to analyze Ontario’s current guardianship regime. While there are aspects of the current regime that promote autonomy and protect the rights of ‘incapable’ persons, much of the current system compromises the autonomy and dignity of persons with capacity issues and creates barriers for persons subject to guardianship to assert their right to legal capacity. As we saw in chapters III and IV, this is true for both the existing legislative framework and the manner in which guardianships function in practice. The case examples we analyze reveal practical barriers faced by people who attempt to protect their rights or reassert their autonomy, such as inaccessible legal and bureaucratic systems, high costs, very few supports, lack of accessible information, and lack of timely response or resolution to complaints.
Drawing on our analysis of the current legal framework and our review of initiatives relating to legal capacity in other jurisdictions, we suggest a number of recommendations for strengthening Ontario’s legal capacity regime to better respect, promote and protect the rights of ‘incapable’ persons. We recommend reforming the existing legislative regime to ensure that legal capacity legislation complies more completely with the rights and principles contained in the CRPD and reflected in the LCO’s Framework. Some of this work has already begun. A number of Canadian researchers, activists, lawyers, and people with disabilities have thought and written about what may be included in a new legal capacity regime. The LCO is presently undertaking a large project on Legal Capacity, Decision-Making and Guardianship, which will result in recommendations for reform to this area of law. Thus, the basis for a major reform of Ontario law is being laid.
We also suggest a number of measures that should be included in a new legal capacity regime for Ontario. Such measures would promote and protect the rights of ‘incapable’ persons; enhance monitoring and accountability of guardians; and strengthen mechanisms for resolving disputes between guardians and ‘incapable’ persons.
A new legal capacity regime for Ontario will likely offer persons with capacity issues a wide range of options for obtaining assistance and support with decision-making. We hope that such a system will promote the development of strategies that respond more precisely to the particular decision-making needs of each individual person. This would promote the principles of autonomy and self-determination by enabling people with disabilities to access supports to enhance their legal capacity. Within such a system, the number of people who require a substitute decision-maker will be significantly reduced. However, those who continue to need a substitute decision-maker should have access to a framework that promotes and protects their rights to the greatest extent possible.
Earlier in this report we wrote that individual autonomy and the freedom to make one’s own decisions are crucial aspects of human dignity and personhood. For the disability community, the right to legal capacity is closely tied to the emancipatory goal of full participation and inclusion in society. Given the fundamental nature of legal capacity, it is essential that work be done to promote and protect the rights of persons who are subject to substitute decision-making in Ontario. With the negotiation and passage of the CRPD, states and the global disability community crystallized a new, modern understanding of legal capacity for persons with disabilities. Nearly four years have passed since Canada ratified the CRPD. It is now time for Ontario to reform its substitute decision-making regime to reflect our evolving understanding of legal capacity for persons with disabilities.
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