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 th