Thhis Paper has identified many concerns with specific aspects of Ontario’s laws related to legal capacity, decision-making and guardianship: how individuals are assessed for legal capacity to make decisions, have substitute decision-makers (SDMs) or supporters appointed, understand their legal rights and responsibilities, and raise and address concerns, among other issues. One underlying theme running through many of these issues is the decentralized nature of Ontario’s system, with multiple institutions and processes reflecting a diversity of needs, and a focus on individual action to access the system and its supports. An recurring concern throughout this initial phase of the project has been the challenge in coordinating all of the many institutions and aspects of this area of the law, and ensuring that they are working well together towards the achievement of the ultimate purposes of the law. This concern may be understood as the result of three significant and interrelated gaps in the current regime: mechanisms for transparency and accountability for the effective operation of the system; systems or institutions for coordinating the various system functions; and means for identifying flaws or implementation issues in the system as whole. Each of these are briefly examined below.
B. Transparency and Accountability for System Functioning
A recurrent challenge in attempting to evaluate how well Ontario’s laws in this area are working and to identify and assess potential law reform options is the pervasive lack of data with respect to the functioning of the current regime. For example, while several organizations have made considerable efforts over the years to improve understanding of the laws among the public, SDMs, service providers and professionals, the lack of any central coordinating role makes it difficult to identify who has been doing this work or how effective it has been.. There is therefore no straightforward means of determining what are the most pressing needs for information and education, what resources are available to address these needs or what might be the most effective strategies or tools for doing so. In many cases, it is simply not possible to gather any meaningful data at all about the operation of key aspects of the system: concerns related to the abuse and misuse of powers of attorney (POA) are an obvious example, where there are no means of determining how many POAs are in effect, let alone how common abuse is. Similar issues arise in almost every area, from assessing capacity to dispute resolution. While the Public Guardian and Trustee (PGT) and the Consent and Capacity Board (CCB) do collect statistics for case management purposes and report publicly on an annual basis, the information available through this means touches on only a few aspects of the system.
Without such data, it is difficult to meaningfully assess whether the reforms of the 1990s have met their goals; or whether any shortfalls in doing so are the result of problems with the fundamental assumptions and strategies underlying the laws or with their implementation. Just as it is important to have monitoring and oversight mechanisms to ensure that the law is functioning as intended on an individual basis, it is important to have such mechanisms with respect to the effectiveness of the laws as a whole. The Framework for the Law as It Affects Persons with Disabilities states,
In general, laws benefit from the inclusion of mechanisms to ensure accountability, transparency and effectivenss. Often there is a lack of monitoring and oversight mechanisms for laws disproportionately or exclusively affecting persons with disabilities; as a result, it is difficult or impossible to determine whether these systems are operating effectively or the degree to which persons with disabilities are subject to abuses or violations of their rights. Monitoring of the law and regular evaluation of its effects provides a strong foundation for meaningful law reform, and mechanisms for monitoring and evaluation should be built into the law from the outset.
The Frameworks include a number of questions related to monitoring of the law that are relevant here.
- What mechanisms does the law include to allow those affected, including persons with disabilities, to provide feedback on the effectiveness of the law and on any unanticipated negative consequences for persons with disabilities?
- How does the law require meaningful information about its impact and effectiveness to be systematically gathered and documented?
- How does the law require that information about its operation and effectiveness be made publicly available?
- How does the law ensure that those charged with implementing and overseeing the law regularly report on their activities and the effectiveness with which the law, program or policy is administered?
- Where the law provides significant discretion to those charged with its implementation, what additional reporting and monitoring mechanisms does it include to ensure that this discretion is exercised consistently, fairly, transparently and in a principled manner?
- QUESTION FOR CONSIDERATION: 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?
- QUESTION FOR CONSIDERATION: 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?
C. Coordination of the Legal Capacity, Decision-making and Guardianship System
Many jurisdictions include as part of their legal capacity, decision-making and guardianship regime institutions or mechanisms that are intended to coordinate or oversee certain functions that are considered essential to the effective functioning of the system as a whole. Commonly, these include education, monitoring and oversight, and last resort functions.
For example, in Ireland’s proposed new statutory framework (which is briefly described elsewhere in this Paper), the Office of the Public Guardian would fill a strong centralizing role in the system, with an extremely comprehensive range of functions, including:
- supervising decision-making assistants, co-decision-makers, decision-making representatives and attorneys for relevant persons,
- establishing and maintaining a register of decision-making assistance agreements, co-decision-making orders, decision-making orders and decision-making representative orders, and enduring powers of attorney,
- appointing special visitors and general visitors, who visit decision-making assistants, representatives, co-decision-makers and attorneys or the persons that they are assisting, and to receive reports from these visitors,
- receiving security which has been directed by the court to be furnished by a decision-making representative for a relevant person in relation to the performance of his or her functions,
- if required to do so by the court, having the custody, control and management of some or all of the property of a relevant person,
- receiving and considering reports from co-decision-makers, decision-making representatives or attorneys for relevant persons, and
- receiving and considering representations, including complaints, in relation to the way in which a decision-making assistant, co-decision-maker, decision-making representative or attorney for a relevant person is performing his or her functions as decision-making assistant, co-decision-maker, decision-making representative or attorney, as the case may be, and to act on such complaints where they have substance
- nominating persons to act as decision-making representatives where the court is unable to find other persons who are willing or suitable to so act,
- establishing public education and information programs, including online to all those involved in the system, and
- providing advice and guidance to bodies in the State in relation to their dealings with relevant persons. 
As is dealt with in Part Four, Chapter III, in the Australian state of Victoria, the Office of the Public Advocate, which is separate from the Public Guardian, plays this coordinating role. The Public Advocate was created as part of the wide-ranging reforms to capacity and guardianship laws in the 1980s, and is considered, along with the role of the VCAT, as one of the most successful innovations of that reform. The recent review of Victoria’s legal capacity and guardianship regime by that state’s Law Reform Commission affirmed widespread and strong support for the role of the Public Advocate. The Victorian Law Reform Commission recommended not only that the Public Advocate retain its current mandate, but that it be provided with additional responsibilities and funding. The Public Advocate has a dual role as both a guardian of last resort and an “official watchdog” for the rights of persons with disabilities in general. The roles of the Public Advocate are:
(a) to promote, facilitate and encourage the provision, development and co-ordination of services and facilities provided by government, community and voluntary organizations for persons with a disability with a view to promoting the development of the ability and capacity of persons with a disability to act independently; minimizing the restrictions on the rights of persons with a disability; ensuring the maximum utilization by persons with a disability of those services and facilities; and encouraging the involvement of voluntary organizations and relatives, guardians and friends in the provision and management of those services and facilities;
(b) to support the establishment of organizations involved with persons with a disability, relatives, guardians and friends for the purpose of instituting citizen advocacy programs and other advocacy programs; undertaking community education projects; and promoting family and community responsibility for guardianship;
(c) to arrange, co-ordinate and promote informed public awareness and understanding by the dissemination of information with respect to the provisions of the Guardianship and Administration Act and any other legislation dealing with or affecting persons with a disability;
(d) to investigate, report and make recommendations to the Minister on any aspect of the operation of the Act referred to the Public Advocate by the Minister.
As was described in Part Four, Chapter I, in its paper, Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship, ARCH Disability Law Centre identified as a core shortcoming in the current system the lack of active (as opposed to responsive) mechanisms for ensuring that the rights of persons under guardianship are respected and that guardians comply with this legislative responsibilities, and recommended the creation of a “Monitoring and Advocacy Office”, separate from the PGT. This Office would be an “independent, competent, impartial body whose role would be to monitor and oversee decision-makers, address situations in which decision-makers are abusing or misusing their powers, and deal with complaints from ‘incapable’ persons”.
To the extent that this central coordinating role exists in Ontario, it is undertaken by the Public Guardian and Trustee (PGT) and the Capacity Assessment Office (CAO). The vital roles of the PGT have been described in the relevant sections of this Paper, and include acting as a decision-maker of last resort and as statutory guardian for property, appointing replacement guardians for property, conducting “serious adverse effects” investigations and applying to the court for temporary guardianships as appropriate, reviewing applications for court appointments of guardians, and make submissions or appearances as appropriate, reviewing accounts of guardians for property when they are submitted to the Court for approval, maintain the registry of guardians, arranging for section 3 counsel for those who are subject to proceedings under the SDA and require counsel; and create informational material and provide public education (although this last is not statutorily mandated).
The CAO trains eligible health professionals to be Capacity Assessors under the SDA, and provides ongoing education for designated Capacity Assessors, maintains a roster of qualified Capacity Assessors, oversees the work of Capacity Assessors, provides information about Capacity Assessment to the public; and operates a Financial Assistance Plan for those individuals who cannot afford the cost of a Capacity Assessment.
The roles of the PGT and CAO are central to the operation of Ontario’s system; however, they are also clearly relatively modest in extent compared to those of similar institutions in some other jurisdictions. As noted above, Ontario’s approach to this area of the law has been relatively decentralized, with a focus on the responsibilities of affected individuals, families and professionals in ensuring that the system operates effectively and as envisioned.
This issue of “system coordination” is closely connected to the issue of transparency and accountability briefly outlined above. Without some coordinating institution or mechanism, it is more difficult to design means of ensuring that information about outcomes is publicly available. To return to the example of powers of attorney, because there is no body responsible for providing any monitoring or oversight of these powers, no information is gathered regarding how many POAs are executed or in effect, who they affect or appoint, what powers they assign or how often concerns about their use arise.
- QUESTION FOR CONSIDERATION: 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?
D. Identifying System Issues
The two issues identified above, the relative lack both of central coordinating institutions or mechanisms and of means for gathering and disseminating data about the operation of the system contribute to the challenge of evaluating the current system, whether on an ongoing basis to correct problems of implementation, or as part of a more thorough-going review.
It is worth considering whether reforms could incorporate into law, policy or practice means or requirements to regularly review their impact and effectiveness. For example, both the Accessibility for Ontarians with Disabilities Act and Human Rights Code Amendment Act contained provisions requiring the review of the reforms they enacted after a certain period of time. Section 57 of the Human Rights Code Amendment Act required a review of the implementation and effectiveness of the changes resulting from the enactment of that statute, three years after the effective date. This review was required to include public consultations, and a report to the responsible Minister. This review was completed in 2012. The Accessibility for Ontarians with Disabilities Act contains more comprehensive review requirements. A first review was required within four years of the coming into force of the AODA, with further reviews to take place every three years. The Minister must appoint a person to undertake a “comprehensive review of the effectiveness of th[e] Act and the regulations”, including public consultation. The person appointed must submit a report on that review that may include recommendations for improving the effectiveness of the Act and regulations.
- QUESTION FOR CONSIDERATION: Are there reforms to law, policy or practice which would improve the ability to identify and address problems with the system as a whole?
E. Questions for Consideration
- 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?
- 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?
- Are there reforms to law, policy or practice which would improve the ability to identify and address problems with the system as a whole?
- 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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