VIII. Possible Implications for the Law2017-03-03T18:34:58+00:00

There are a number of opportunities for recognizing personal support networks in current, or potential future, law. The options set out below begin with the most modest (indeed, the first is arguably already law), moving on to opportunities for deeper reform. The first options largely rely on existing legal tools and concepts. These would give some recognition to network supports provided in particular cases, but would not formalize the network structure (although they could be paired with background supports for personal support network building). The second category of approaches would give legal recognition to individual relationships of support (like British Columbia’s RAA), recognizing that individual relationships and personal support networks often go hand-in-hand, and that in using these tools people may both rely on and strengthen personal support networks. The final group of options explores the implications of building on the corporate model. These options take seriously the idea of group decision-making supports, and the concept of a jointly created decision-making entity. The first of these – essentially, Microboards – is already law in British Columbia. The second discusses expansion of the Microboard model to other areas of decision-making, which would be a novel approach.

 

A.    Opportunities for modest legal recognition (no substantial change to current laws or concepts)

1.    Recognizing network support as part of the duty to accommodate persons in reaching traditional capacity thresholds

Arguably, this first ‘option’ is already legally required. Human rights legislation across Canada protects against discrimination on the basis of age and disability (among other grounds) in a number of areas. In Ontario, the Human Rights Code (the “Code”) provides the right to freedom from discrimination in the areas of services, employment, accommodation, contracts, and vocational associations. 
Under sections 9 and 11 of the Code, the application of a facially neutral standard that adversely affects persons with disabilities can amount to discrimination.  Where there is prima facie discrimination, the burden shifts to the party relying on the standard to show that the person cannot be accommodated without undue hardship. 

The Code also specifically refers to a duty to accommodate in the context of allegations that a person is incapable of exercising a right because of disability. Section 17(1) provides that a right is not infringed “for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability”.  Thus, it provides a kind of ‘defence’ to allegations of discrimination. However, section 17(2) goes on to state that “[n]o tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship”. 

Although s. 17 is not referring to “capacity” in the sense of legal decision-making capacity, arguably the section is broad enough to encompass legal capacity standards. On this interpretation, sections 9, 11, and 17 read together, would mean that a person providing a service (or other covered activity under the Code) could not withhold that service on the grounds that the person lacked the necessary legal capacity (a facially neutral standard), unless it were established that the duty to accommodate had been met. The content of this duty to accommodate could be debated, but might include, for example, allowing a support person, communication assistant, or personal support network member to be present where this allowed the person to reach ordinary legal capacity standards. Some scholars have advanced precisely this kind of claim, arguing that decision-making supports (such as personal support networks) should be recognized as a form of legally required accommodation. 

As the LCO notes, there does not appear to be any Canadian case law on point. However, the Commissioner for Human Rights for the Council of Europe has recommended that government and key institutions have an obligation to accommodate that would include: “acceptance of a support person communicating the will of the person concerned”.  Although it has not been adopted as Ontario policy, the Ontario Human Rights Commission recently referred to (without endorsing) the argument that “providing supports as much as possible to help people make decisions should be recognized as part of an organization’s legal duty to accommodate.” It also observed that “Article 12 [of the CRPD] requires that appropriate measures be taken to provide the person with the support they need to make decisions, such as making sure a person has access to a network of people who can help.” 

The informants’ comments indicate that, in practice, some third parties are already providing this kind of accommodation. Informants described interactions with banks, health care providers, service providers, and lawyers, in which a person was viewed as legally capable when supported by one or more members of a support network. In some of these cases the person’s capacity simply was not questioned when a supporter was present. In others, parents expressly appealed to the existence of the personal support network, successfully convincing the third party that there was (supported) legal capacity.

Recognizing decision-making supports as legally required accommodation does not specifically entrench any particular form of personal support network, or indeed, networks at all. The very idea of accommodation is that it is individual. As the Human Rights Commission has explained: “There is no set formula for accommodating people with disabilities. Each person’s needs are unique and must be considered afresh when an accommodation request is made.”  Thus, this approach would not formalize any particular approach to support networks in law. It also would likely not require that new safeguards be created, given that traditional capacity tests would apply. However, for the same reason, this approach will likely not satisfy those seeking meaningful alternatives to guardianship. Given that it would require people to “understand and appreciate” (with supports) it would continue to be inaccessible to many persons with disabilities.

2.    Network support as an alternative to guardianship – ss. 22 and 55 of the SDA

Sections 22(3) and 55(2) of the Substitute Decisions Act (SDA), dealing with guardianship for property and personal care, respectively, state that the court must not appoint a guardian if “it is satisfied that the need for decisions to be made will be met by an alternative course of action” that both “does not require the court to find the person to be incapable” and “is less restrictive of the person’s decision-making rights than the appointment of a guardian” (the “alternative course of action” provisions).

To date, it seems that in most of the cases applying these provisions, the ‘alternative’ under consideration has been a power of attorney. However, it could be argued that decision-making with the support of a personal network is an alternative to guardianship that should be recognized, in an appropriate case, under the alternative course of action provisions. Indeed, one Ontario case has (obliquely) suggested that supported decision-making could qualify under s. 55(2) of the SDA. In Gray v. Ontario (2006), the Ontario Divisional Court heard a judicial review of the government’s decision to close three residential institutions.  In the context of describing the government’s process for planning and obtaining consent for individuals’ new community placements (which did not require guardianship), the Court suggested that this process might be consistent with a “‘supported decision making’ process, which in many cases will be consistent with the words and the intention of section 55(2) of the Act”. 

The Coalition on Alternatives to Guardianship has argued that the alternative course of action requirement “is not just a provision, but a process”.  It explains that after the SDA was implemented in 1992 there was government interest in developing procedures for implementing a supported decision-making system, but that “the promised process…never materialized.”  The Coalition recommends that this be taken up now, and that ss. 22(3) and 55(2) be used as the springboard for a new legislated supported decision-making process.

Again, this paper does not take a position on those recommendations for broader legal reform. Rather, it considers the more immediate possibility that courts might recognize the supports provided by personal support networks on a case-by-case basis – that is, examine all the facts of a particular network arrangement, and if satisfied that “the need for decisions to be made will be met”, recognize the arrangement as an alternative to guardianship under ss. 22(3) and 55(2). The Court in Gray seems to have taken this approach, apparently viewing the alternative course of action provision as requiring a case-by-case assessment rather than a set process:

There are approximately 1000 individuals who will be transferred from these three institutions; their capacities and their needs in reference to the decision-making process will differ significantly. It is not possible to dictate a process for obtaining consent to community placements that will apply in every case. However, the objective will always be the same, which is to act in the best interests of the incapable person.

Thus, while the alternative course of action provisions arguably open the door for a comprehensive supported decision-making regime, they also do not preclude more modest case-by-case recognition of decision-making supports in personal network context.

As with the accommodation approach discussed above, recognizing a personal support network as providing adequate supports and protection in a particular case would not entrench any particular kind of network, or networks at all. Rather, it would recognize that in that particular situation, the network arrangement was working well and meeting the objectives of the SDA.

On the other hand, as with reliance on the duty to accommodate, there are significant limitations to this kind of approach. First, in situations that are working well, it is unlikely that anyone would be seeking guardianship to begin with. Persons seeking guardianship – a process that entails significant effort and expense – will generally do so only where existing arrangements are perceived as flawed, or where additional legal authority (for instance, to interact with third parties) is required. Second, the court’s authority to recognize networks is extremely limited. Sections 22 and 55 give it the power to “not appoint a guardian” if there is a less restrictive alternative that meets the requirements of those sections. This gives it the power to leave the status quo in place; for instance, where the necessary decisions are being made (perhaps because a parent is involved as ‘unofficial guardian’), this would be permitted to continue. However, a court considering a guardianship application under the SDA does not have any authority to grant to a person’s network legal status to, say, interact with third parties. Put another way, the court can decline to appoint a guardian on the evidence of a network arrangement working well, but it has no authority to help create the less restrictive alternative. As the decision to grant a (corporate or individual) person legal status to represent another’s decisions can only be made by the legislature, this ultimately brings us back to the broader debate over the desirability, and potential contours of, a new supported decision-making law.

 

B.    Recognizing personal support network members within broader supported decision-making regimes

Any legally recognized supported decision-making regime that gives status to a person’s supporters could also, by extension, involve or strengthen a person’s network. Indeed, unless the network is recognized as a standalone entity (a possibility that is explored below) it may be artificial to separate ‘network’ supports from other (more individual) supports.

First, supported decision-making laws can give status to persons drawn from personal support networks. For example, under British Columbia’s Representation Agreement Act (RAA), a person might appoint as a representative one or more persons from his or her Microboard or PLAN support network. An informant from a community organization in British Columbia said that many people ask members of their PLAN networks to be their legal representatives under the RAA. Second, as this informant also explained, the process of creating a representation agreement can help to establish a new personal support network. For instance, a person could appoint a ‘team’ of representatives, specifying how they are to work together on particular issues (such as through a ‘telephone-tree’ telling health care workers whom to call, in what order, in the event of a health-care issue). This informant acknowledged that representation agreements do not always work this way in practice. However, she said the advocates for representation agreements always perceived them as a means of both giving legal status to, and strengthening, a person’s ‘natural’ personal support network.

The point here is not to advocate for British Columbia’s approach to representation agreements in particular. Rather, it is that supported decision-making laws can promote decision-making within networks without expressly legislating a “network” approach. Appointing one or more representatives or supporters in their individual capacities can have the effect of strengthening previously existing networks, or of creating new ones.

Finally, while none of the policy options discussed above legally entrench the network form, all of them could be paired with a government commitment to providing the background supports (e.g., funding and programs) to help people to create and maintain robust personal support networks. As Kohn et al., observe:

Policymakers can promote supported decision-making either by creating opportunities and mechanisms for formally recognizing an individual’s decision-making supporter or by creating opportunities and mechanisms for providing individuals with such supporters. Both approaches may be necessary in order for supported decision-making to benefit both those with and without pre-existing support networks.

These background supports would likely be important to any of these more modest proposals for recognition of personal support networks. For instance, an informant in British Columbia spoke about the power of representation agreements to foster network creation, but said that this potential has been limited by the lack of funding for programs that support network creation. She emphasized that any serious commitment to providing alternatives to guardianship must pay attention to the ‘planning side’, including the gradual process of building a network and the possibility that people will require help to do so. The Coalition on Alternative to Guardianship has made similar arguments, suggesting that the government should be required to take “proactive steps” to help people establish support systems.

 

C.    Options that build on the tool of incorporation

1.    Why talk about incorporation?

Some have queried whether it is appropriate to make vulnerable persons fully legally responsible for the decisions made through a supported process, and whether the tool of incorporation could provide safeguards. The LCO raises this in its Discussion Paper: 

A difficult question is the apportionment of legal responsibility for decisions made through supported decision-making. Responses are to some degree linked to the model of supported decision-making adopted, and the role that supporters are expected to play. One approach is to say that the decision is that of the person, and that therefore that person bears the full responsibility for the decision: critics argue that this approach can lead to troubling moral outcomes where some persons with significant levels of vulnerability may be liable to suffer substantial legal consequences despite not having understood the risks associated with the decision. Another approach is to emphasize the interdependent nature of decisions made through a supported decision-making approach.

As the LCO notes, the Office of the Public Advocate for Victoria, Australia, has elaborated on this second approach:

[I]f decision-making is an interdependent process and if a person has a support network assisting them to make decisions, it can be argued that the members of the support network should bear at least some ethical responsibility for the decisions made, unless they formally distance themselves from the decision. The question of legal responsibility arises if decisions with legal ramifications are being made, for example decisions involving a financial contract, decisions requiring formal consent or decisions that may result in a person having a civil action brought against them. An alternative form of supported decision-making is to establish the support network as an Incorporated Association. Under this arrangement, all the members of the network take responsibility. 

Making a network a separate legal person achieves two main things, which are corollaries of each other: First, it establishes a legal entity that can take on the legal powers ordinarily available to corporations under the common law (such as the ability to enter into contracts) and by statute. (As discussed above, corporations do not currently have the legal power to represent the personal decisions of another; separate legal authorization would be required to grant it these powers.) Second, a corporate entity is legally responsible for the acts and decisions validly entered into by the corporation. This has implications for third parties who can clearly identify the party responsible for any legal obligations. (A landlord who has leased property to a corporation knows whom to turn to in the event of a breach, and the presence of a corporate entity might lend some apparent stability to the transaction.) The presence of a corporate entity also has implications for the supported person insofar as it is an alternative to having him or her personally lease the property and take on the associated legal responsibilities and potential liabilities.

Another possible implication of incorporation is the shifting of the legal relationship between supporters (now directors) and the supported person (possibly now also a director). As noted above, it is unclear what is the legal nature of this relationship where the supported person is both a director and the effective object of the corporation (in relation to which directors owe a fiduciary duty). Few informants had turned their minds to this issue, and there is apparently no case law on point.

The discussion below describes two ways in which Ontario law could recognize a ‘corporate approach’ to personal support networks and decision-making. The first is, essentially, the Microboard model. The second is to give incorporated networks a role beyond administering funding and services (which turn on ordinarily available powers of contract paired with government policy), giving them new legal powers to represent the personal decisions of a supported person. This is the far more radical of the two options, and it is in the context of this second option that the bulk of the discussion about protections for supported persons and third parties takes place.

2.    Making incorporated networks formally eligible to receive and administer individualized funds

As discussed above, a small number of people in Ontario have incorporated personal support networks. The informant interviews suggest that where this is done, it is to (i) take on the legal powers of a corporation (for instance, to own property) that can facilitate succession planning; and (ii) enter into contractual arrangements with transfer payment agencies, allowing them to receive and administer individualized funds. One policy option would be to regularize this practice, expressly making incorporated personal support networks eligible to receive and administer individualized funds, as is done in British Columbia. This would be one way to allow for supported decision-making in relation to funding and services.

Does the Social Inclusion Act allow for Microboards?

While there is still no Ontario law recognizing the authority of an incorporated network to receive and manage funds, the Social Inclusion Act does not appear to preclude it. The Act now provides for direct funding agreements which, according to MCSS, will “give people with a developmental disability and their families more choice and flexibility” by allowing families to “buy supports themselves”.  The direct funding agreement provisions (which are not yet in force) state that an application for direct funding can be made by “a person with a developmental disability, by a member of the person’s family, by the person’s caregiver or by any other person.”  Where a person is determined to be eligible for direct funding, the process for assessing the person’s needs “shall provide the person with a developmental disability, and any person who submitted an application…on his or her behalf, an opportunity to participate”.  And finally, an “application entity” (meaning any of the nine Developmental Services Ontario agencies across Ontario) “may enter into a direct funding agreement with a person with a developmental disability or with another person acting on behalf of a person with a developmental disability”. 

It is unclear, however, how these provisions will be applied in practice. For instance, under the Passport Program, current policy is to require people to receive their funds either directly (in which case they are responsible for hiring support workers and complying with related legal obligations) or through a service agency.  There is no policy recognition of the third option of having funds flow through a personal support network.

Safeguards, training & resources

Recognizing incorporated networks as eligible to receive individualized funds and act as employer does not guarantee that decisions will be made in accordance with supported decision-making principles. Indeed, the informants’ comments were to the effect that some incorporated networks are primarily intended to serve administrative functions; they are not always envisioned as forums for supported decision-making. Any safeguards in this respect, such as those relating to supported decision-making principles, the roles and duties of supporters, and monitoring, would need to be separately provided for in law or government policy (an issue that is taken up below).

Adoption of the Microboard model for funding and services would also require that supports be made available. The Wetherows emphasize this point:

Because Microboards and unincorporated circles are small and citizen-based, they need reliable access to ‘underlying supports’ – organized sources for development, training, technical support and practical assistance in areas such as initial formation, planning, managing resources, recruiting, screening and training staff, handling difficult human resource situations, budgeting, evaluation, accountability, representing the person’s needs to government, etc.

In British Columbia, Vela Microboard Association plays this role for networks choosing to make use of its services. Their services are free of charge in British Columbia.  Were Ontario to go the route of formally recognizing and supporting the ability of incorporated networks to receive funding and act as employer of record, there would likely need to be some public or private equivalent.

Conflicting views about the benefits and drawbacks of Microboards

Impressions of Microboards appear to be mixed. Some praise Microboards for their ability to empower individuals and their families. For instance, following a review of models for service delivery, Pedlar et al. conclude:

Of the various approaches to support that we observed, individualized funding along with a microboard service model seemed most promising in terms of fostering empowerment-in-community and the realization of texture in people’s lives. We doubt that either one of these approaches, individualized funding or the microboard, would function particularly well without the other.

They argue that the Microboard model is unique in its ability to vest “control to individuals and families” while being “grounded in openness to the larger community”.  On the other hand, several informants expressed concerns about the Microboard model and its focus on funding and services. For instance, an Ontario facilitator thought that personal support networks should not be managing staff; she said that networks often talk about issues relating to support workers (such as whether to apply for particular funded supports or whether a particular relationship is working well) but that ultimately this should be limited to ‘advice’, so as not to confuse the roles of personal support networks and service agencies. Similarly, an informant in British Columbia spoke of tension between service delivery and natural supports. She said that government policy and programs continue to be dominated by a traditional ‘services’ mentality, and that this can undermine authentic personal network creation. She suggested that policy makers ask why we want to emphasize personal support networks, as Microboards could be seen to be directed to effective navigation of the service system when, in fact, personal support networks could be doing more. On the other hand, an informant from Vela explained that the organization’s mandate has broadened beyond service delivery and that about 25 per cent of current Microboards have chosen not to act as employer, instead providing informal support and advocacy based on relationships of trust and intimacy.

There are also alternative approaches to enhancing individual autonomy and control over services. For example, in British Columbia, some people pair direct individualized funding with a representation agreement under the RAA.  (In fact, where a Microboard is receiving the funds, this is understood as indirect funding – that is, something akin to having an agency-for-one – rather that direct funding.) Indeed, several informants thought that Microboards were very helpful and progressive when they were first introduced in British Columbia, but that they have been overtaken by representation agreements. Yet another approach to enhancing individual choice and decision-making in services is employed in Manitoba. Manitoba Family Services offers a funding model called “In the Company of Friends” (ICOF), which allows individuals to self-direct their funding on the condition that they have a personal support network (which is not incorporated). An organization called LIFE provides assistance to those who need help creating a network. The ICOF is described as an option for those who “want to self-direct and manage their own lives each day with help from friends and family, instead of receiving residential and/or day services from an agency”. People use the funding to hire their own support staff with the help of their support network. ICOF reportedly “works to empower each person to make his/her own decisions or minimally to participate in the decision making process”. 

In the event that Ontario were to adopt a Microboard model, it would be important for this to remain voluntary. Several informants emphasized the difficulties that families can face when trying to set up Microboards (e.g., in identifying members) and that managing funding and services is time consuming and complex. For example, one informant said she preferred to give this role to a transfer payment agency (while still having effective choice in the services provided due to an arrangement with the agency). In general, informants wanted a range of options that could be adapted to individuals’ particular needs, not a prescriptive model.

Finally, this option is discussed here as a possible locus for supported decision-making relating to services. Microboards represent one unique model for decision-making supports and, where some people in Ontario are already receiving individualized funding via incorporated networks, there seem to be compelling reasons for allowing and regularizing this role. At the same time, funding and service delivery obviously raises a whole host of complicated issues beyond decision-making that are not canvassed here. While the issues of supported decision-making discussed above should arguably be taken into account, the desirability of Microboards in Ontario should likely be treated as a distinct policy question, somewhat separate from how to more comprehensively allow for supported decision-making in law.

3.    Extending the corporate model to other decision-making

The idea of having an incorporated personal support network manage funds and arrange for services fits fairly easily into the traditional service agency model. (As noted above, when the Wetherows innovated the first Microboards, they asked: “what is the smallest unit of human organization that would be eligible to receive ‘agency’-level funding?” ) Having a Microboard-type entity make and represent the full range of personal decisions is quite a different proposition. It would also be a novel approach. As such, this section is something of a thought experiment. It provides a preliminary discussion of how this sort of model might be achieved in law, and some of the questions and considerations that would have to be considered, particularly in light of the overarching concerns about protecting vulnerable persons (both vis-à-vis supporters and from legal responsibility for decisions) and providing clarity for third parties. 

How could this be achieved?

To build on the Microboard model for other personal decision-making would require a law (i) defining the network as a legal entity; and (ii) giving it particular legal powers to represent a person’s personal decisions in defined circumstances, with appropriate safeguards. Existing Microboards meet the first of these requirements by using corporations law; as discussed, they are structured as not-for-profit corporate organizations with the sole objective of supporting the focus person. An expanded Microboard approach could similarly rely on incorporation, thus building on existing experience. Another possibility would be to create a new kind of legal entity for the purpose of decision-making law. This would have the advantage of not requiring the parsing of existing not-for-profit corporate statutes for provisions that are or aren’t appropriate to the supported decision-making context. On the other hand, it would also mean starting over; law-makers would have to provide for the full range of provisions (relating to membership, duties, responsibilities and potential liability, records, meetings, filing, and many other areas) currently set out in lengthy corporate statutes. This would be a considerable undertaking, particularly given that network decision-making would likely be only one of several approaches to decision-making offered to individuals and their families.

The incorporated (or otherwise legally recognized) network would also need to be given legal powers of representation. Incorporation by itself does not achieve this. Thus, to grant incorporated entities legal status to represent an individual’s personal decisions vis-à-vis third parties would require that not-for-profit corporations law be paired with a new decision-making law. This legislation would need to set out the scope of the corporation’s powers and responsibilities, and provide for any safeguards (an issue that is taken up below). This might look something like a modified version of British Columbia’s RAA, which also allowed for the appointment of a corporate representative and, importantly, provided for legal responsibility for decisions to lie with the incorporated network.

While Microboards provide some preliminary indications of what this might look like, the full version of this approach is entirely hypothetical. Indeed, this is not really a single “approach”, as it could take a variety of forms. While this makes it impossible to precisely analyze the model, it is possible to set out some possible contours and considerations. What follows is a discussion of some of the factors, advantages, and disadvantages, which would be important to assessing the viability and desirability of an expanded corporate approach.

Key considerations for evaluating the approach

Protections for vulnerable decision-makers – Legal responsibility for decisions: The most obvious potential advantage of (and indeed the primary impetus for considering) an expanded corporate approach is that it relieves vulnerable persons of responsibility for decisions that they might not have fully understood, placing that responsibility on the corporation. This legal allocation of responsibility would need to be specified in statute. For instance, British Columbia’s RAA does not assign legal responsibility for decisions to individual representatives, and the presence of a corporate legal representative would not automatically imply that it should be assigned legal responsibility; however, it would be possible to set this out in legislation. Although I am using the term “representative” here, there is a degree of mismatch between this term and the idea that the network would be the legally responsible agent. In some respects, making the network the legal agent could be seen to be placing it in the role of substitute decision-maker (it is not merely representing the supported person’s decision, it is the decision-maker). On the other hand, the fact that the focus person is member of the network, and that the network would be following supported decision-making principles, make this different from substitute decision-making also. Indeed, this kind of approach might require new terminology.
It is difficult to know how this would play out in practice. None of the informants had experienced, or even heard of, a situation in which liability for network decisions became an issue. One can imagine situations – particularly where money is at stake, for instance, because of breakdown of an employment relationship – in which having a corporate network as the legal decision-maker might be advantageous for the supported person. Although the funds available to incorporated networks are generally those available to the focus individual in any event (for instance, individualized government funding), the network could collectively manage the situation, and can also hold liability insurance. Moreover, having a group of people formally engaged in decision-making might itself provide a measure of protection by ensuring a level of reasoning and consideration before legally weighty decisions are entered into.
On the other hand, the advantages of the corporate approach are less apparent when we move away from the employer role to more personal areas of decision-making such as medical care. For instance, what would it mean, from the perspective of a supported person, for medical decision-making to be legally placed with a corporation? Perhaps this might be significant if the medical care somehow gave rise to a legal action against the supported person (or, against the corporate decision-maker). But this is very much in the realm of speculation. Although people very clearly benefit from supports in medical decision-making, and many informants said they would like for Ontario to have something akin to representation agreements, it is not obvious that anything would be gained – that is, that supported persons would be better protected – from legally vesting medical decision-making responsibility in a corporation.

Protections for vulnerable decision-makers vis-à-vis supporters: Neither not-for-profit corporations law, nor an individual corporation’s contracts or corporate documents, can provide adequate decision-making safeguards for vulnerable persons. Indeed, as Microboards and other corporate networks currently operate, the safeguards relating to things such as use of funds and decision-making processes, to the extent that they exist at all, are set out in private corporate documents (e.g., the corporate objects) or in contract. However, the use of only private and/or voluntary instruments means that there is no consistency across boards, and in some cases, little or no monitoring or accountability to ensure that the objects of supported decision-making are being met.

Any legislated system of supported decision-making would need to include adequate safeguards. As Kohn et al. observe:

One of the primary worries, even for those advocating supported decision-making, is the potential for coercion or other inappropriate influence by a representative or supporter. Exploitation and abuse certainly occur in guardianship context (although it is unclear how frequently), and supported decision-making arrangements create new opportunities for abuse. Indeed, when we turn to more informal arrangements such as supported decision-making, which may occur in private and with less accountability, the potential for financial or other abuse likely increases.

Others have discussed possible standards and procedures for protecting supported persons relating, for example, to: who can be a supporter; supporters’ roles and the decision-making principles to be applied; what is required of the supported person (e.g., capacity thresholds); monitoring; and dispute resolution, among other things.  A discussion of these kinds of proposals is outside the scope of this paper. However, whatever the appropriate standards and safeguards, they would need to be spelled out in the statute granting legal powers of representation to the corporation; the private law of corporations and contract law are insufficient to the task. It would also need to clearly identify and resolve any conflicts between the decision-making statute and corporations law, for instance, in the articulation of members’ duties of care.

Clarity for third parties: The LCO refers to this issue in its Discussion Paper:

Concerns have been raised that supported decision‐making, relying as it does on multiple persons, provides insufficient clarity for third parties, who must be able to easily pinpoint those persons who are authorized to enter into legally binding transactions.

One of the possible advantages of incorporation is that there is a clearly identifiable legal entity that is responsible for legal transactions. Indeed, several informants discussed informal arrangements in which a support circle provided decision-making support, and a family member accompanied the focus person in third party transactions as an “informal guardian”. These kinds of arrangements could indeed create ambiguity for third parties. Informants were also sometimes unsure about exactly who, in a network decision-making context, is legally responsible for decisions.  

On the other hand, a network need not be incorporated to provide greater clarity. The ambiguity arises because families in Ontario are creating informal supported decision-making mechanisms without any legal context for doing so. This could be remedied by any law providing legal status to decision-making supporters. Would a law granting representative status to a corporation provide greater protections to third parties than a law granting this status to private individuals? Not necessarily. Indeed, arguably it might sometimes provide less clarity, given that it would insert another layer of representation. In the event that, say, a medical decision was required, a physician would need to consult with a director with the legal power to represent the corporation, which would in turn have legal powers to represent the individual.

For decisions for which there are financial consequences (such as personal banking), it might be argued that third parties have more financial protection where there is a corporation in play. On the other hand (unless the situation was one giving rise to personal director liability) third party protection in these circumstances is only as good as the funds available to the corporation, and in the case of Microboards, these funds are usually those earmarked for the individual in any event. In other words, the corporation’s pockets might not be any deeper than those of the individual. (Although valid and applicable liability insurance might change this.)

In the end, it might be that from the perspective of third parties the choice between corporate representation and personal representation is relatively neutral. Indeed, a lawyer practicing in the area opined that third parties likely care little about what kind of legislation is passed, as long as it clearly specifies the lines of authority, so that they can limit their liability.

The safety of a group: A possible advantage of building on the incorporated model is that it takes seriously the notion of group support. Several informants talked about the safety inherent in of having more than one supporter. In the words of one informant, “the whole point is that there’s more than one person”. Another talked about the value of having people watch and balance each other, thus forming an informal system of checks and balances. Incorporation is not necessary to ensure the presence of a group. For example, several informants discussed the common practice of British Columbians appointing more than one representative under the RAA, sometimes specifying the ways in which representatives must cooperate or coordinate tasks. On the other hand, giving the network separate legal status means that the network can outlive its individual members. This might have both symbolic advantages (the network is more than the sum of its parts) as well as practical ones, when it comes to tasks such as succession planning. Indeed, the creators of Ontario’s first Aroha entity were motivated to incorporate by precisely these kinds of concerns about long-term planning and security.

Complexity: A common sentiment among informants was that systems of support, and supported decision-making, should be kept as simple as possible. People discussed the multiple layers of bureaucracy that must already be managed in accessing disability supports, and emphasized the importance of not imposing unnecessary additional burdens on individuals and their families. In light of this, the work and formality of incorporation and corporate maintenance are a potential drawback. Families will often need to hire a lawyer, and will be faced with substantial work relating to meetings, bookkeeping, and government filings, among other issues. For already over-burdened families, this might act as a deterrent.

Formality vs. flexibility: A significant theme in the interviews was the need for flexibility. Again and again, informants emphasized that different people need different supports. They said not everyone is comfortable in a network or ‘circle’ environment, that those who are may require different kinds of networks and network practices, and that a person’s needs can change over time. Many informants also talked about flexibility from the standpoint of supporters. They said that many parents are reluctant to help their son or daughter create a personal support network because they require significant time and energy, and can present a range of obstacles requiring flexibility and constant change. As one person put it, networks have a ‘life’ of their own; without constant attention to shifting needs, they can become fossilized or die. Informants also said that non-family network members have varying levels of time and energy to offer, and that requiring too much at the start is a disincentive to involvement.

In light of this need for flexibility, many informants were concerned about the possible effects of placing personal support networks within a legal framework. They emphasized that the law should neither require people to have networks (as this would, in any event, result in people having networks only ‘on paper’), nor require personal support networks to take a particular form (for instance in the number of members or meetings). Many viewed incorporation as a threat to flexibility and to the dynamic process of strengthening ‘natural’ supports.

Concerns that legal roles will undermine natural relationships: A related issue is the possible tension between formality and natural relationships. Several informants talked about the challenges of keeping even informal groups of family and friends consistently involved. They said that people should be encouraged to contribute whatever they are willing and able to give, suggesting that a legal requirement to actively participate on a regular basis with legal duties attaching, might place the ‘bar’ too high, deterring less formal involvement.

People also worried that the formal tasks undertaken by incorporated networks might divert attention from relationships. For instance, an informant in British Columbia worried that the process of applying for and accounting for funds might make Microboards overly service-focused. Another informant was concerned that some people are interested in the Aroha model because they see it as a means to obtain legal powers, forgetting that the substantive core must be built around caring relationships. A lawyer in Ontario said that he often encourages those interested in incorporating networks to consider their motivations, and to start by building a strong circle of support. In general, participants emphasized that whatever its legal structure, a deliberate and sustained focus on relationships is required to keep the network meaningful and alive.

Symbolism: Finally, some of the potential advantages and disadvantages of incorporation are rooted in symbolism. On the negative side of the ledger, people sometimes viewed corporations as cold, business-like entities that are likely to be ‘legalistic’, ‘contractual’, and ‘mechanical’, rather than conducive to caring and supportive relationships. On the other hand, these concerns must be viewed in context. While they might sometimes be born out, they may also stem from the idea of pairing a corporate structure with such a deeply personal role. In practice, there are indications that at least some people experience Microboards and Aroha entities as providing a meaningful circle of caring relationships.

A second set of concerns around symbolism relates to the ‘social face’ that might be presented by an incorporated network making personal decisions for another. An expanded corporate model as described in this section would go two steps further than, say, representation agreements in British Columbia, by (i) assigning not only representation power but also legal responsibility to another; and (ii) doing so to a corporation. There is symbolism in both of these steps. While giving up legal responsibility for decisions of course provides a measure of protection, it also arguably lessens the person’s social agency vis-à-vis third parties. Even more, making a corporation responsible for decisions paints a potentially uncomfortable picture in which a corporation is legally making and representing deeply personal decisions relating to, say, medical care. If, as some scholars have suggested, supported decision-making is “an opportunity to reimagine the disabled legal subject”, we might wonder what sort of legal subject personal decision-making by corporation creates.  On the other hand, this might be partially remedied by employing different language. For instance, British Columbia’s use of the term “society” for not-for-profit corporations might elicit fewer symbolism-based objections (though those who object in principle to the removal of legal agency would continue to be opposed to the model).

Some of the symbolism involved in an expanded Microboard approach might also be positive. By giving the network legal status, it takes seriously the idea that there is something different about, and valuable in, collective decision-making as distinct from one-on-one supports. Moreover, by making the supported person a director – a part of the legal decision-making entity – it gives distinct legal status to the intersubjective process of decision-making between the individual and the group. On the other hand, it is unclear whether networks are being experienced in this way. It was apparent from the informant interviews that many people do not think of incorporation as a tool to share responsibility; rather, the corporate structure is sought out as a means of achieving practical legal ends. As one informant emphasized, people will work with whatever model will help them to function in the community.

 

 

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