The Law Commission of Ontario is considering the potential of supported decision-making models, in the context of its broader investigation of Ontario’s capacity, guardianship and decision-making laws.
In the context of this broader work, they have asked me to examine one particular kind of decision-making support – Personal Support Networks.
By “personal support networks” I mean both formal entities like “Microboards” and “Aroha entities”, and less formal networks and “support circles”.
I am trying to determine:
(i) How these networks are operating, especially in B.C. and Ontario (although I’m open to information about other jurisdictions as well); and
(ii) Whether they are a form of supported decision-making, and if so, whether we can learn anything from them in considering possible law reform.
– I’m not recording
– I will take notes, which I may use in the context of a report for the LCO.
– I will not use direct quotes unless I have your express permission
– I will not attribute any comments to anyone. I may say things like, “a lawyer said…” and then paraphrase.
– The Law Commission will have the names of the people to whom I spoke, but these names will not be in any report. The report may include a list of the professions/ groups of people I spoke to – e.g., “a lawyer practicing in the field” or “a parent advocate”.
– Any questions or concerns?
[Modified / selected from as appropriate]
1. In what role(s) have you developed knowledge of, or experience with, personal support networks?
2. What (or what kind) of personal support networks do you know about?
3. How is the network formed? For example:
a. How are members chosen? What is the procedure for joining or leaving the network?
b. What is the role of the supported person in creating the network? Must he or she authorize its formation? Choice of members?
c. Is it necessary for the supported person to have some level of decision-making capacity? If so, capacity defined how?
d. What is the structure of the network? Is it legal in nature (e.g., incorporated)?
e. Are there any written documents – e.g., bylaws, supported decision-making agreements, other – that are used to create the network or guide its work?
4. What kinds of decisions are made and how are they made? For example:
a. What kinds of decisions are made within the network?
b. What is the role of the supported person? (Does the network make decisions for the person, or assist the person to make his or her own decisions?)
c. Must the network follow the wishes of the supported person?
d. Must the supported person have capacity in relation to decisions made? If so, defined how?
e. What does the network do when a decision is required and the network either cannot discern the person’s intentions, or does not have direction as to how to carry out those intentions?
f. How are disagreements managed? Instances where the network doesn’t agree with the supported person? Where members don’t agree with each other?
g. Are the principles for making decisions set out in writing (e.g., in a supported decision-making agreement)?
h. Where does the network look to for support and guidance (e.g. laws, policies, guidelines, community organizations, facilitator, etc.)?
5. Who is responsible for the decisions made in the network? For example:
a. Who is held out as the decision-maker, especially if the network is dealing with third parties?
b. Who implements decisions?
c. Who is potentially liable? Does the network carry liability insurance?
d. What is the relationship between the network and the supported person? Fiduciary?
6. What relationships, if any, does the network have with government? For example:
a. Does it receive funding directly from government and act as the employer of record?
b. Any other relationship to government?
c. What does the government require in order to recognize the network (e.g., must it be incorporated and/or meet other requirements)?
d. Are there any documents that govern this relationship (e.g., laws, policies relating to receipt of funding, other)?
7. What relationships, if any, does the network have with other third parties? For example:
a. Do network decisions sometimes involve third parties (e.g., support workers, banks, health care providers)?
b. What is the legal relationship between the network and these third parties? E.g., who is responsible to third parties for the decisions made? Who is liable if something goes wrong?
c. What do third parties require in order to recognize the network (if they do)?
d. How well are these relationships working? Are there challenges? Things that are working well?
e. Are there any documents (e.g., laws, policies) that govern or guide these relationships?
8. Who is using personal support networks? For example:
a. Do you have any information about how many people are using personal support networks?
b. Do you have any information about who is using them?
9. Do you think personal support networks should be recognized / receive more recognition in law? How?
10. Do you have any other comments that you would like to share, e.g., about the limitations and/or potential of personal support networks in decision making? Anything else?
11. Is there anyone else you think I should speak to?
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