Appendix B: Consultation Questions

Appendix B: Consultation Questions2017-03-03T21:48:45+00:00

1.    Within the identified scope of this Project, are there additional issues or themes that should be considered?

2.    What constraints and opportunities should the LCO be aware of to ensure that law reform proposals in this area will be practical and implementable?

3.    What should be the primary purpose or purposes of this area of the law?

4.    What do the principles and commitments found in the CRPD, Charter, Human Rights Code and AODA tell us about the key elements of reforms to Ontario’s legal capacity, decision-making and guardianship laws? How might they affect the interpretation and application of these laws?

5.    Are there specific reforms to the Substitute Decisions Act or Health Care Consent Act that would support better coordination with other laws, such as the Mental Health Act, privacy laws, income or social support laws or others?

6.    How does the experience of this area of the law differ depending on gender, sexual orientation, gender identity, racialization, immigration status, Aboriginal identity, family or marital status, place of residence, geographic location, language, various forms of disability, or other forms of diversity? What reforms to the law in this area are needed to ensure that it takes into account the characteristics of affected older persons and persons with disabilities?

7.    What do the Framework principles tell us about designing effective reform for this area of the law?

8.    What are the most important implications of the Framework principles for the approaches to and standards for legal capacity in Ontario law?

9.    Are there specific ways in which the current “ability to understand and appreciate” test for legal capacity should be clarified in order to improve its implementation? Or are there other means through which practical guidance on its application could be provide? Are there specific ways in which the legislative test should be amended to better reflect the social and contextual aspects of legal capacity?

10.    Should a test for legal capacity based on “will and intention” of the individual be adopted for some or all aspects of Ontario’s decision-making and guardianship laws? If so, in what circumstances would such a test be appropriate, and how would this standard for capacity be assessed?

11.    How does the experience of capacity assessment differ depending on gender, sexual orientation, racialization, language, culture, socio-economic status, Aboriginal status, geographic location, various forms of disabiLity  or other forms of diversity?

12.    For each of Ontario’s mechanisms for assessing capacity, does it strike the appropriate balance between formality, procedural protections, accessibility and efficiency?

13.    Who should carry out the various types of capacity assessments required? What type of training and education should they receive? How should this training be delivered?

14.    Is there sufficient monitoring and oversight of the various types of capacity assessments in Ontario? If not, what are specific suggestions for how the various capacity assessment mechanisms could be improved in this respect?

15.    Are standards for the assessment of capacity under the various mechanisms sufficiently clear, consistent and stringent? If not, what are specific suggestions for how they might be improved?

16.    Would Ontario benefit from greater harmonization, coordination or simplification of its various capacity assessment mechanisms? If so, what are specific suggestions for how this might be achieved?

17.    Do Ontario’s capacity assessment mechanisms deal adequately with fluctuating levels of capacity? If not, what are specific suggestions for how they might be improved in this respect?

18.    Are there barriers to accessing Ontario’s capacity assessment mechanisms? If so, what are specific suggestions for how they can be made more accessible?

19.    What are the advantages and risks of formalizing supported decision-making in Ontario law?

20.    If formal supported decision-making is  incorporated into Ontario law:
a)    To whom should it apply?
b)    What should be the test for capacity to be part of such an arrangement or to end it?
c)    Should this type of decision-making be available for all types of decisions or only for some?
d)    Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e)    Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f)    Who should be able to act as a supporter?
g)    What should be the responsibilities of supporters?
h)    What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i)    What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j)    What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements?

21.    What are the advantages and risks of formalizing co-decision-making in Ontario law?

22.    If co-decision-making is incorporated into Ontario law:
a)    To whom should it apply?
b)    What should be the test for capacity to be part of such an arrangement or to end it?
c)    Should this type of decision-making be available for all types of decisions or only for some?
d)    Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e)    Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f)    Who should be able to act as a co-decision-maker?
g)    What should be the responsibilities of supporters?
h)    What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i)    What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j)    What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements?

23.    Should Ontario expand the role that specialized professionals may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:
a)    For what types of decisions should these professionals be authorized to act?
b)    What types of training, licensing or educational requirements should be required of these professionals?
c)    What types of oversight and monitoring should be put in place for these professionals? Who should carry out this oversight and monitoring?
d)    What should be the responsibilities and liability of these professionals?
e)    What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?

24.    Should Ontario expand the role that volunteers or other community members may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:
a)    For what types of decisions and in what types of circumstances should these individuals be authorized to act?
b)    Who should be responsible for recruiting, selecting and overseeing these individuals?
c)    What types of training or supports should be provided to these individuals?
d)    What types of oversight and monitoring should be put in place? Who should carry out this oversight and monitoring?
e)    What should be the responsibilities and liability of these individuals?
f)    What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?

25.    What role might community organizations play for individuals who have been determined to lack legal capacity for a particular type of decision? If community agencies were to act as substitute decision-makers, what lessons could be learned from the experiences with informal trusteeships, or with the use of community agencies in this role in other jurisdictions?

26.    What role might personal support networks play in a reformed Ontario capacity, decision-making and guardianship system? How might this role be formalized in law?

27.    Where family or friends are acting for a person who has been determined to lack capacity to make a particular decision, are there supports that would enable them to more effectively fulfil this role?

28.    Are reforms required to strengthen oversight and monitoring of the role of the Public Guardian and Trustee as substitute decision-maker? If so, what specific reforms would be most appropriate and effective?

29.    Are there concerns regarding the appointments process for substitute decision-makers under the Health Care Consent Act that should be addressed in reforming this area of the law?

30.    What practical reforms to law, policy or practice would most effectively provide grantors of powers of attorney for property with more effective means of appropriately triggering the operation of these documents?

31.    Are there reforms that should be made to the requirements or options for the creation of a power of attorney to improve the understanding or grantors or attorneys or both of the risks, benefits and responsibilities associated with these powerful documents? If so, what would be the most practical and effective reforms?

32.    Would a registry system for powers of attorney improve the ability to verify and validate these documents, or to prevent and identify abuse? What would be the benefits and disadvantages of a registry system?

33.    If a registry system for powers of attorney should be created,
a)    Should it be voluntary or mandatory?
b)    What information should be maintained in the registry?
c)    Who should have access to the information in the registry and under what circumstances?
d)    Who should operate the registry?
e)    What would be required to ensure its compliance with privacy legislation?

34.    Are there mandatory requirements or options that should be added to the creation or provisions of powers of attorney, such as duties to account, monitors or notices of attorneys acting, to improve monitoring and accountability for attorneys? If so, what would be the most practical and effective reforms?

35.    Should Ontario consider reforms to create or strengthen options for more limited forms of guardianship, such as partial guardianships or appointments for specific decisions only? If so, what would be the most practical and effective reforms?

36.    Should Ontario consider reforms to guardianship procedures to ensure regular review of the need for a guardian, such as requirements for time-limited guardianships or mandated regular guardianship reviews? If so, what would be the most practical and effective reforms?

37.    Are there reforms to law, policy or practice that would result in a better balancing of accessibility and responsiveness of guardianship procedures with the necessity for adequate procedural protections for such a weighty decision? If so, what would be the most practical and effective reforms?

38.    Are there reforms to law, policy or practice that could more effectively ensure that guardians are appointed for individuals only as a last resort, where no less restrictive alternatives are available? If so, what would be the most practical and effective reforms?

39.    Are there ways in which laws, policies or practices for addressing abuse through legal capacity, decision-making and guardianship laws could be better coordinated with general provisions for addressing abuse of those who tend to fall within this area of the law?

40.    Are there specific information, education or training initiatives that could be integrated into law, policy or practice to ensure that individuals and their substitute decision-makers better understand their rights, roles and responsibilities, and if so, how might these be implemented?

41.    Are there mechanisms that could be added to law, policy or practice to improve monitoring and oversight of substitutes, such as enhanced duties to report or account, “visitor” programs for persons under substitute decision-making, or other types of supervisory powers? If so, which mechanisms would be most desirable and how might these be practically implemented?

42.    Are there new mechanisms for complaints or enhancements to the PGT’s existing investigatory powers that would be effective and appropriate for addressing concerns regarding abuse or misuse of the powers of substitute decision-makers?  If so, which mechanisms would be most desirable and how might these be practically implemented?

43.    Are there mechanisms that could be put in place to reduce loss or damage to individuals through abuse of substitute powers, such as limits on conflict transactions, provision of authority to financial institutions to freeze accounts where abuse is suspected, or expanded requirements to post bonds or security? If so, which mechanisms would be most desirable, and how might they be practically implemented?

44.    Are there other reforms to law, policy or practice that should be considered to prevent, identify and address abuse or misuse of the powers of substitute decision-makers?

45.    What goals should be the priorities in considering reforms to Ontario’s dispute resolution and rights enforcement mechanisms for this area of the law?

46.    Are there practical reforms to law, policy or practice that would promote more timely resolution of appeals from decisions of the Consent and Capacity Board?

47.    Are there practical and effective means of further incorporating alternative dispute resolution mechanisms into the processes of the Consent and Capacity Board that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?

48.    Are there practical and effective means of amending the hearing processes of the Consent and Capacity Board, such as for example incorporating active adjudication, that would both promote responsive resolutions and respect the particular nature of the rights and disputes at issue?

49.    Are there additional powers for the court or specialized supports or services for persons attempting to access their rights or resolve disputes under the Substitute Decisions Act that would improve the accessibility or effectiveness of current dispute resolution processes in this area? If so, what reforms would be most appropriate and how could they best be implemented?

50.    For dispute resolution and rights enforcement under the Substitute Decisions Act, are there lessons to be learned from tribunal systems in other jurisdictions?

51.    What types of supports are most important for assisting persons falling within this area of the law to understand and assert their rights? Should the focus of supports be on provision of accessible, timely and appropriate information; assistance in navigating complex systems; supporting affected individuals to articulate their values and wishes; support to advocate for their rights; or some other needs?

52.    What can be learned from the history of the Advocacy Act to guide reforms to the provision of supports for persons falling within this area of the law?

53.    Are there ways to strengthen existing supports for accessing rights under legal capacity, decision-making and guardianship laws, including rights advice, section 3 counsel and legal aid services for persons falling within this area of the law? Are there ways in which these supports could be expanded to reach a broader range of needs?

54.    What can be learned from supports to accessing the law in other jurisdictions or in other Ontario programs?

55.    Should supports be provided proactively, or upon the request of the individual? Does this differ at various points in the system?

56.    Who should deliver supports to accessing the law in this area? For example, should supports be provided through community agencies, a specialized public institution, or embedded institution-specific supports?

57.    What are the priorities for reforms to law, policy or practice to ensure that individuals who encounter the capacity, decision-making and guardianship system have meaningful access to the information that they need to preserve their autonomy to the greatest extent possible and to understand and enforce their rights?

58.    What are the priorities for reforms to law, policy or practice to ensure that persons appointed as substitute decision-makers adequately understand their roles and responsibilities, and have the skills necessary to effectively perform their often challenging roles?

59.    What are the priorities for reforms to law, policy or practice to ensure that service providers adequately understand their roles and responsibilities under the law, have a meaningful understanding of the circumstances and experiences of the individuals affected by these laws, and have the skills necessary to effectively interpret and apply the law?

60.    What reforms to law, policy or practice could help to ensure that professionals carrying out core responsibilities under the SDA, MHA and HCCA have the skills and expertise required to perform their roles, and that this skill and expertise is kept current?

61.    How could information, education and training related to legal capacity, decision-making and guardianship be better coordinated and made more accessible to the general public and all those seeking it?

62.    Are there reforms to law, policy or practice which would increase transparency and accountability for the legal capacity, decision-making and guardianship system as a whole?

63.    Are there reforms to law, policy or practice, including institutional roles or responsibilities, which would improve the coordination and effectiveness of the system as a whole?

64.    Are there reforms to law, policy or practice which would improve the ability to identify and address problems with the system as a whole?

65.    What steps can be taken to support ongoing monitoring and evaluation of any reforms to the law in this area, and to ensure that changes to law, policy and practice have the effect intended?

 

 

 

 

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