I. The Problem of Abuse and Misuse of Substitute Decision-Making Powers

////I. The Problem of Abuse and Misuse of Substitute Decision-Making Powers
I. The Problem of Abuse and Misuse of Substitute Decision-Making Powers2017-03-03T21:48:19+00:00

A.    Introduction

1.     The Framework Principles and the Problem of Abuse of Substitute Decision-making Powers

Issues related to abuse and exploitation form a persistent theme in laws related to legal capacity, decision-making and guardianship, and in the debates about them. These laws have their inception, in part, in the desire to prevent abuse of persons who are at risk due to impairments in their cognitive abilities. The very nature of the impairments that result in the loss or diminishment of the “ability to understand and appreciate” and that thereby result in the appointment of substitute decision-makers (SDMs), may be considered to increase the risk that unscrupulous individuals will be able to abuse these individuals without being detected or without the victims being aware of and able to exercise avenues for recourse. As Community Living Manitoba commented in a research study on mistreatment of women with intellectual disabilities,

The cognitive limitations experienced by women with a severe level of intellectual disability can render them unaware that they are in harm’s way. That is, they are unable to read the cues in others’ behaviours as menacing, exploitative or as potentially dangerous. Moreover, after the fact they may not be able to appreciate that they have been mistreated.[618]

As well, as disability is often associated with marginalization, persons with disabilities that affect their legal capacity may be in positions of economic or social vulnerability, increasing their risk of abuse. As is stated in the Vulnerable Adults and Capability Issues in BC: Provincial Strategy Document (the Vanguard Project),

The higher the level of social vulnerability or incapability, the greater the dependence that adult has on someone else. The greater the dependence is, the greater the risk for abuse or mistreatment exists.[619]

However, because legal capacity, decision-making and guardianship laws give some people power over others, the laws themselves may create opportunities for abuse. As the Vanguard Project Report notes,

The corollary of trust and power is that it always creates a potential for abuse. Thus, ironically, the very instruments designed to protect a person from some forms of abuse also create an opportunity for mistreatment. [620]

Given the significant restrictions on autonomy associated with substitute decision-making, and the power imbalances that such an order creates between the individual and his or her SDM, it is essential that any legal capacity, decision-making and guardianship system include meaningful mechanisms for preventing and addressing abuse and misuse. The imposition of a substitute decision-making regime, and particularly of a guardianship regime, without sufficient safeguards would raise significant issues of fundamental human rights. Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) specifically addresses concerns regarding abuse of persons who fall within legal capacity and decision-making law. Paragraph 4 of that Article states that,

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

The LCO’s Framework for the Law as It Affects Older Adults adopted a principle of recognizing the importance of security which recognizes “the right to be free from physical, psychological, sexual or financial abuse or exploitation”, as well as the right to access basic supports such as health, legal and social services. The Framework for the Law as it Affects Persons with Disabilities includes the principle of facilitating the right to live in safety, emphasizing the “right of persons with disabilities to live without fear of abuse or exploitation and where appropriate to receive support in making decisions that could have an impact on safety”. During discussions and public consultations leading to both Frameworks, a central tension was identified between the principles of safety andsecurity on the one hand, and the principle of fostering autonomy and independence on the other hand, with concerns raised that the principles of safety andsecurity not be employed to reduce the autonomy and independence of older persons and persons with disabilities, so that persons with disabilities and older persons may, as others do, choose to live with some degree of risk without undue interference from others.

As was noted above, abuse, neglect and exploitation of older persons and persons with disabilities have some roots in the marginalization and devaluation of members of these groups. Negative attitudes and stigma, social isolation, economic precarity that reduces choice – all of these can contribute to the risk of abuse. In this way, the problem of abuse of persons through capacity and guardianship law is closely connected to a broader societal failure to sufficiently advance the principles of dignity and respect, and of participation and inclusion.  This context also highlights that while good law is important to the prevention, identification and response to abuse and exploitation, law alone can only be a partial solution.


2.     Situating the Problem of Abuse in Capacity, Decision-making and Guardianship Law

The focus of this Chapter is on the misuse and abuse of substitute decision-making powers, safeguards against such abuse and misuse, and potential amendments to laws related to legal capacity, decision-making and guardianship in this regard.  The problem of abuse of vulnerable persons is tied to many broader issues in law and policy, including provision of adequate social services, oversight and enforcement mechanisms for public services, and the criminal justice system. It is not the purpose of this Chapter, or indeed of this project, to address these other areas of the law.

It should be remembered that the Substitute Decisions Act (SDA) and Consent to Treatment Act (the predecessor to the Health Care Consent Act) were initially drafted in tandem with the Advocacy Act, as described in Part One, Chapter I.  That Act provided a quite extensive publicly financed system for ensuring support and advocacy for those falling within the scope of capacity and guardianship laws. It is the opinion of some that the repeal of the Advocacy Act “unbalanced” the legislation, leading to some of the problems with implementation and abuse. The role of supports and advocacy for persons who have been determined to lack or may lack legal capacity to make decisions in a particular domain is an overarching issue that was strongly raised in both of the LCO’s Framework projects and will be dealt with in the following Chapter of this Paper. 

Issues of abuse through the law and of misuse of the law are connected to every aspect of legal capacity, decision-making and guardianship laws, and thus to many other aspects of this Discussion Paper. Concerns about opportunities for abuse and misuse motivate both advocacy for and many of the objections to new decision-making arrangements such as supported decision-making (Part Three, Chapter I), and are a significant factor in considering who may act in a decision-making role (Part Three, Chapter II). As appointment processes provide a key opportunity for screening out potential abusers and ensuring that SDMs understand their responsibilities, considerations related to abuse are a significant factor in the design of appointment processes (Part Three, Chapter III). Effective mechanisms for rights enforcement and dispute resolution, which are addressed in the remaining Chapters in Part Four, are vital for identifying and addressing abuse. The problem of abuse must thus be considered in weighing almost every aspect of law reform in this area.

In identifying options for reform, this Chapter will not repeat materials from these other Chapters; rather it will focus on how these overarching issues apply to the specific problems of abuse, with particular focus on administrative mechanisms for addressing these challenges. These options should be considered in light of the full range of issues and options presented throughout this Paper. For example, a very rigorous screening process for appointments might be balanced by less onerous reporting or oversight processes or vice versa, or a strong complaints mechanism might reduce the pressures on current dispute resolution systems.

 

B.    Understanding the Problem: Abuse through Appointments and Misuse of Statutory Powers

1.     Clarifying Scope: Abuse, Abuse through Appointments, and Misuse of Statutory Powers

Abuse through substitute decision-making powers is a subset of a broader set of issues related to elder abuse and abuse of persons with disabilities. These are large issues, with multiple dimensions, and cannot be adequately addressed here. However, concerns about abuse through substitute decision-making powers must be understood in this larger context.

Definitions of what constitutes “abuse” and “elder abuse” vary. The National Initiative for the Care of the Elderly (NICE), with funding from Human Resources Development Canada, has been working towards the development of a consensus definition of elder abuse that could be used for a national prevalence study. Abuse may include physical, sexual, psychological or financial abuse, as well as neglect.[621] Abuse may be perpetrated by institutions or by individuals – as the Vanguard Project notes by, “anyone who may be in a position of intimacy with or power over the vulnerable adult”. It generally includes an element of violation of trust and dependency.[622]

The focus of this project is on Ontario’s legal capacity, decision-making and guardianship regime, and so the focus of concern in this Chapter is not abuse of persons with disabilities or older adults in general, but specifically the use of substitute decision-making powers, such as powers of attorney or guardianship, as a tool for abuse or to facilitate the abuse. For example, a person holding a power of attorney (POA) may directly use that document to carry out financial transactions that impoverish the individual granting the POA and enrich the attorney, or may use a power of attorney for personal care (POAPC) to isolate the individual (the grantor) and thereby carry out abuse undetected.

Abuse through a POA or guardianship is not necessarily the same as misuse or misapplication. A well-intentioned individual may be unaware of or misunderstand their role and obligations under the appointment. As a result, they may, for example, use a guardianship for purposes beyond those intended, may fail to carry out important obligations such as consulting the person or keeping accounts, or may inappropriately apply a paternalistic or best interests approach to decision-making where the legislation indicates another approach is required. This type of misuse is perceived to be very common, and is problematic. The outcomes may be highly negative for the person under substitute decision-making, and contrary to the clear intent of the legislation. ARCH Disability Law Centre has identified a number of common forms of misuse of guardianship powers, including:

  • Failure to carry out their legal obligations;
  • Asserting broader powers than what is provided for under the SDA;
  • Failure to consider the individual’s wishes or make decisions contrary to those wishes;
  • Having insufficient contact with the individual and sharing insufficient or incorrect information;
  • Failing to assist the individual to re-assert legal capacity through capacity assessments or termination of an unnecessary or inappropriate guardianship.[623]

These types of issues are also relevant to substitute decision-making powers exercised through a POA. This project will consider both abuse through and misuse of substitute decision-making powers.

This type of misunderstanding and resultant misuse is a broader issue than pure abuse or exploitation. It is a problem not only for SDMs, but also for a wide range of organizations and institutions that rely on capacity and guardianship law in the course of their activities, such as health care or financial institutions and government service providers. There may be some commonalities in the mechanisms for preventing and identifying and addressing this type of misuse with those for deliberate abuse, but there may also be differences, something to be considered when evaluating various options for reform.

 

2.     Prevalence of Abuse

Perhaps surprisingly given the relatively widespread use of substitute decision-making, particularly through POAs and the levels of concern about abuse and misuse of these powers expressed, not only during the LCO’s preliminary consultations but in other law reform reports from Canadian jurisdictions, there is relatively little literature specifically related to abuse through substitute decision-making appointments. 

As was highlighted in the previous Chapter, the number of individuals under guardianship is relatively small, and is understudied. The number of individuals on whose behalf a POA is being exercised is much larger, but information about this group is hard to come by. In part this springs from the nature of POAs. They are privately created, including through commercial “kits” that are widely available in stores and through forms made available through Ontario’s Ministry of the Attorney General. There is no central repository for POAs, so it is impossible to know how many continuing or springing POAs have been created, let alone how many are actually in effect at any period in time. While anecdotal reports of abuse of POAs, and particularly POAs for property, are widespread, it appears to be relatively rare for individuals to seek redress through legal processes, for reasons touched on below. Even if we knew in absolute numbers how many cases of abuse of POAs occurred in Ontario on an annual basis, we would not have a “denominator” to tell us the relative frequency of abuse compared to the extent of use of POAs. It is therefore difficult to say with any level of certainty how extensive the problem of abuse of POAs really is. However, it is clear that it is a serious and significant concern from the perspective of those who regularly work with older persons and persons with disabilities.

In general, there is a dearth of Canadian literature on abuse of persons with disabilities and elder abuse. A groundbreaking 1989 national survey on elder abuse indicated that 4 per cent of the approximately 2,000 respondents age 65 and older had experienced some form of abuse, with financial abuse being the most common type of abuse suffered by 2.5 per cent of the sample. Those experiencing financial abuse were disproportionately likely to describe themselves as having poor health and as having no one in whom they could trust and confide. The next most common type of abuse was chronic verbal aggression, followed by physical abuse and neglect. It should be noted that the sample included only older persons living in private dwellings and not those living in institutional settings.[624] A British Columbia study that focussed exclusively on financial abuse found a much higher rate of eight per cent of older adults indicating that they had experienced financial abuse. The two most common forms of financial abuse in this study were concerted coercion, harassment and misrepresentation, followed by abuse via power of attorney.[625] Some populations are more vulnerable to abuse than others: a Manitoba study on financial abuse of incapable adults under an order of supervision by the Public Guardian and Trustee found a rate of 21.5 per cent suspected financial abuse among subjects over age 60.[626] The most common suspected abuser was an adult child of the subject. Studies have found that cognitive impairment is an especially potent predictor of elder abuse.[627]

Younger persons with disabilities have in general a higher risk of violence and victimization that is exacerbated for those who are living in institutional settings, have severe disabilities or have “mental disorders”. Persons with disabilities are particularly likely to be victimized by someone they know, whether it be family, friends, neighbours or care providers.[628] A study by Community Living Manitoba of mistreatment of women with intellectual disabilities heard concerns about a wide range of abuses, including sexual, physical, emotional and financial abuse, and identified a number of significant factors that either elevated risks of abuse for these women, or placed barriers in the path to addressing abuse. For example, those experiencing abuse may be concerned that reporting abuse may lead to a loss of independence and control.[629] They may not have the self-confidence to report abuse, or have been taught how to recognize and address abuse. As well, authorities may not understand the impact of what might seem to them to be minor victimizations:

For example, a woman with an intellectual disability on social assistance is likely to be poor, particularly if not living with her parents or siblings …. The theft of twenty dollars from such a woman may not seem ‘significant’ to the law, its interpreters or the wider public, but may mean the difference between eating and not eating for several days. Women in such circumstances could well experience such a theft as a most significant loss of personal property and even as traumatic – particularly if it happens more frequently than once or twice in a long while.[630]


3.     Family Dynamics, Substitute Decision-making and Abuse

Abuse and misuse of substitute decision-making powers must be understood in the context in which they occur, which most frequently is that of close personal relationships. As was discussed in Part Three, Chapter II, “Who May Act?”, while the Public Guardian and Trustee (PGT) or trust companies do act as SDMs, the vast majority of those acting as SDMs are family and close friends. This has a significant impact on the dynamics of the abuse and misuse.

Our close personal relationships are important, not only to our practical needs but to our emotional well-being. Individuals may be reluctant to question or argue with family members, for fear of destroying the relationship. Family members are often anxious to think well of each other, and may be very reluctant to believe that a loved one might be taking advantage of them or acting in disregard for their well-being. Young adults may be in the habit of deferring to parents and other older family members; parents may be exceedingly reluctant to take actions that might be harmful to their adult children, even where well-deserved. Laschewicz, in her paper on the voices of adults with disabilities in their family contexts, comments that for young adults with intellectual disabilities,

[F]amily members may attach a young “chronological age”: “It doesn’t matter that they’re legally eighteen. It’s very, very, shocking and hard for them (families) to understand and cope with that whole mentality that they’re legally an adult and can make their own decisions”. Indeed, many adults with disabilities have lived their entire lives in their parents’ homes and “under” their parents’ care resulting in entrenched roles for both care receiver and caregiver.

And of course, family histories of dysfunction will play out in the context of substitute decision-making, just as in any other context.                    

A person who has been determined to lack legal capacity may well have needs for support that extend beyond the realm of personal or financial decision-making. The individual may, for example, be reliant on family members or other informal care providers for practical supports in a variety of tasks, such as interacting with service providers, errands, housework or activities of daily living, supports that may be vital to the individual’s ability to remain in a community setting. This is particularly true where formal supports are costly or in limited availability. For example, in the Framework projects the LCO examined in some detail barriers to and inadequacies in access to home care and attendant services for older adults and persons with disabilities.[631] As a result of lack of formal community care, persons needing home care or attendant care services may be heavily reliant on the assistance of family or friends in order to maintain an independent life in the community. The resulting dependence on the informal supports provided by family members or friends may create a power imbalance that makes individuals vulnerable to abuse through POAs or guardianships. 

As was highlighted in Part One, Chapter I, the experiences and risks of abuse for older adults, persons with developmental disabilities and persons with mental health disabilities who are determined to lack legal capacity may differ somewhat. For example, whereever there is money, there is a temptation to financial abuse: during preliminary consultations, social service providers emphasized that it is not uncommon to see low-income vulnerable individuals being abused by family or “friends” in order to gain access to relatively small levels of sums of money, such as ODSP or OAS payments. However, older adults who have been found to lack capacity are more likely than younger persons with disabilities to have access to relatively substantial assets and income, such as a pension or a house (particularly given the association of disability with the experience of low-income), and so the temptation to financial abuse tends to be greater, likely one reason why there is relatively little written about financial abuse of younger persons with disabilities. As another example, as a natural consequence of the life course as well as demographic changes, older adults are particularly likely to find themselves with a very reduced circle of friends and family members who are willing or able to either act as attorneys or to be in a position to identify and address abuse or both. Younger persons with developmental disabilities are more likely not to have had the opportunity or the support to develop decision-making skills or to have gained experience in identifying who should and should not be trusted.

Substitute decision-making powers can be used to facilitate any type of abuse (including physical, psychological, sexual, financial or neglect), as they can serve to control the person who lacks legal capacity by restricting access to money or other financial resources, family and friends, or the broader community. Substitute decision-making for property can provide a direct instrument for carrying out financial abuse, as holders of powers of attorney for property can use their extensive powers to transfer money to their own names, sell assets, cash in investments, or otherwise strip assets from the grantor of the power of attorney.

The type of substitute decision-making at issue will affect the nature and dynamic of abuse. For example, with issues related to property, access to income streams and assets creates a direct incentive for some types of abusers: a number of social services providers commented that the easiest way to get rid of most abusers is to remove access to money – when the money disappears, so does the abuser. However, it should be kept in mind that despite the theoretical separation of domains of decision-making, power over personal care creates an opportunity to exert control over property matters, and vice versa. For example, ARCH Disability Law Centre outlines in one case study how a statutory guardian for property used her ability to control the individual’s finances to restrict his independence in his personal life, for example by refusing to release funds to allow him to rent an apartment with friends or to engage in social activities, and by controlling his access to assistive devices and communication equipment.[632]

Risks of abuse differ not only based on the type of decision made, but also by the context for the decision. In some contexts, there are other parties present or aware of the transaction, who could potentially identify and address abuse. In other cases, the context of the decision is essentially one of isolation, which makes abuse easier to carry out. For example, where decisions are made in the health care context, health care professionals will know the individual (the patient) as well as the substitute or supporter and will be aware of the decision as it is made. For example, a decision to transfer money from one bank account to another may not be within the view of anyone else at all, particularly now that so many financial transactions are made online.  The control over day-to-day activities provided by a POAPC may enable the attorney to isolate the grantor and carry out abuse undetected. There may therefore be measures for identifying and addressing abuse that are specific to particular contexts.           

 

4.     Service Providers and the Problem of Abuse by Substitutes or Others

Third party service providers may play an important role in detecting and addressing abuse through substitute decision-making powers. The level of responsibility for identifying and addressing abuse varies between types of service providers. In some cases, there is a clear legal duty to monitor and to report, while in other cases it may be a matter of institutional policy or of personal ethics. In any of these cases, concerns about abuse may pose complex challenges for service providers.

Abuse is often difficult for third parties to detect. In one report on financial abuse and persons with dementia, professionals commented that it was “difficult to distinguish the line between caring, resource sharing and abuse”. As well, the perception of finances as personal and private matters, with the resultant reluctance to discuss them or to admit to abuse, was a significant barrier to detecting problems.[633] Gathering evidence about abuse may be quite difficult: for example, where persons with dementia are involved, the person’s symptoms may mean they think they are being stolen from when they are not, so that allegations of abuse may require significant corroboration.[634]

In some cases, service providers may be concerned or confused about the requirements of privacy laws. As is discussed in Part Three, Chapter III, privacy law is governed by multiple statutes at both the federal and provincial level. Banking institutions, as federally regulated businesses, fall under the Personal Information Protection and Electronic Documents Act (PIPEDA).[635] The purpose of PIPEDA is to establish “rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances”.[636] The general rule is that the knowledge and consent of the individual are required for the disclosure of personal information;[637] however, an organization may disclose information without the knowledge or consent of the individual to an investigative body, a government institution or a part of a government institution where the organization “has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed”.[638]

Some have raised concerns that this exception is too narrow. For example, disclosure is only permitted where required “by law”; since Ontario does not require mandatory reporting of abuse except in the limited circumstances noted earlier, this would seem to indicate that banks ought not to release such information of its own initiative. However, the SDA makes it clear that banks and other financial institutions must disclose relevant information where requested as part of an investigation by the PGT.[639] There has been some movement towards reform of section 7(3) of PIPEDA, to permit broader disclosure of information without consent, in order to address concerns regarding financial abuse.[640]

Service providers may find themselves caught in a difficult position when attempting to address or prevent abuse. For example, in a common scenario, a person acting under a POA may attempt to undertake a transaction which is clearly improper, such as transferring assets from the grantor to him or herself in order to avoid probate fees. When the bank blocks the transaction, the person acting under the POA may then sue the bank because the additional costs of the estate have diminished the inheritance.[641] In some cases, the SDM may respond to attempts by a financial institution to block inappropriate transactions by simply transferring the account to another institution that may not be aware of the situation and may agree to the transaction.[642]

Financial institutions have responded to concerns about financial abuse of persons who may lack legal capacity in a variety of ways – for example, by developing training materials for front-line staff to help identify potential abuse and to escalate it to senior staff or outside authorities appropriately; engaging in public education activities to alert the public to risks and responsibilities;[643] developing lists of red flags and common scenarios; and improving internal escalation processes in this area.

Service providers, particularly social service providers, may find this area complex and difficult, not only in terms of the law but also the ethical and practical issues raised. During the LCO’s preliminary consultations, several service providers expressed a desire for greater supports and resources to be available to them when grappling with these issues.


5.     General Mechanisms for Addressing Abuse

It must be kept in mind that there are multiple mechanisms outside Ontario’s capacity, decision-making and guardianship legislation that are intended to prevent, identify and address abuse of adults. Most of these are not specific to persons who have been determined to lack legal capacity, but are equally applicable to this group. The mechanisms available under the SDA for addressing abuse must be understood in this broader context.

It should also be understood that the mechanisms for addressing abuse cannot be cleanly separated: they may overlap or intersect. For example, an investigation by the PGT into allegations of “serious adverse effects”, as described later in this Chapter, may lead to a referral to the criminal justice system: the reverse may also happen. Those who contact the PGT with concerns related to the treatment of a person believed to be legally incapable may not understand the nature of the PGT’s mandate and may believe themselves to be triggering a process similar to a police investigation; those making a complaint to the Ministry of Healths ACTION line may not understand the scope or limitations of that avenue.

Criminal Code

Perhaps the most significant avenue for addressing abuse is the criminal justice system. The provisions of the Criminal Code cover most of the issues of concern. Relevant provisions include those addressing theft, assault, sexual assault, false imprisonment, failure to provide the necessities of life to a dependent, fraud, misappropriation of funds by a person in a position of trust and theft by power of attorney.[644] The sentencing provisions of the Criminal Code provide that evidence that the offence was motivated by bias, hate or prejudice based on age or disability shall be deemed an aggravating factor, as well as abuse of a position of trust or authority in relation to the victim.[645]

However, many have noted that the criminal justice system, while important in addressing abuse, has significant limitations, and cannot provide a comprehensive response to the issue.[646] For example, the relationship dynamics underlying some forms of elder abuse, together with the effects of shame and fear of retaliation, may make the victims of such abuse reluctant to disclose it or to see family members face criminal penalties.[647] Delays in the administration of justice can mean that victims of abuse may be dead or legally incapable by the time the case goes to trial.[648] 

Persons with disabilities may face a number of barriers in accessing the criminal justice system, despite a number of initiatives in recent years intended to improve access.[649] Despite the increased risk of victimization, the 2006 Statistics Canada Victims Services Survey reported that only 24 per cent of victim services agencies in Canada were able to provide services to persons with disabilities.[650] As DAWN Canada pointed out to the LCO,

It is important to note that women with disabilities (physical, mental, sensory, chronic illness) experience a much higher rate of abuse of all types, than their nondisabled counterparts and more abuse than men who have disabilities. This is important to keep in mind, as it is often very difficult for women with disabilities to even leave the abusive situation in which they find themselves, let alone take legal action against their abusers. Often, women’s shelters and transition houses are not accessible to women with disabilities. Therefore, it would appear that it would be even more difficult for women with disabilities to access any legal help, especially if they could not find a safe haven first.[651]

As well, public institutions may not be sufficiently equipped to respect and protect the safety of the persons with disabilities they serve. For example, persons with disabilities are less satisfied with the police response to their complaints than others, and have a less favourable view of the criminal justice system.[652]

 

Ontario’s Elder Abuse Strategy

Ontario has a comprehensive, non-legislative strategy to combat elder abuse, developed by the Ontario Seniors Secretariat, and implemented in partnership with the Ministry of the Attorney General, the Ontario Victim Services Secretariat, and Elder Abuse Ontario. The strategy focuses on three key priorities:

  • coordination of community services
  • training for front-line staff
  • public education to raise awareness.

Elements of the Strategy include a province-wide, toll-free victim support line and a network of Elder Abuse Regional Consultants. The Consultants are intended to help promote and support efforts to prevent and address abuse, and act as key resources to community service and justice system stakeholders. [653]

 

Provisions Specific to Particular Areas of Law

In many instances, laws or programs that are targeted to individuals who may be at particular risk of abuse contain mechanisms for preventing, identifying and addressing abuse. The list below is not intended to be exhaustive, but to provide some examples. 

The Long Term Care Homes Act, 2007 and its regulations contain multiple provisions related to abuse. Considering that a very significant proportion of those residing in long-term care homes are older adults who are living with disabilities that may affect cognition, such as dementia or stroke, these protections are a very important part of the legislative landscape related to abuse. The Act institutes mandatory reporting by the long-term care home to the Ministry if there are reasonable grounds to suspect that any of the following incidents may have occurred:

  1. Improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident.
  2. Abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident.
  3. Unlawful conduct that resulted in harm or a risk of harm to a resident.
  4. Misuse or misappropriation of a resident’s money.
  5. Misuse or misappropriation of funding provided to a licensee under the Act or the Local Health System Integration Act, 2006.[654]

It is an offence to fail to report any such incidents.[655] Residents of the long-term care home may make a report regarding abuse, but are not required to do so. Social workers, doctors and other regulated health professionals who report abuse are protected against complaints regarding violations of confidentiality or privilege, so long as the report was not malicious or without reasonable grounds.[656]  The Act includes provisions for inspections following upon a report, as well as whistle-blower protections.[657]

The above provisions of the Long Term Care Homes Act are the only mandatory reporting provisions for abuse of adults in Ontario, unlike other jurisdictions which have mandatory reporting requirements that are broader and more extensive. However, various statutes include mechanisms that may be used to identify or address abuse. Regulated health professionals and certain types of facilities must report sexual abuse of a patient by a member of a regulated health profession.[658] As well, under the Social Inclusion Act, the Quality Assurance Measures regulation sets out a variety of requirements with which agencies must comply. Many of these are positive measures, aimed at the promotion of social inclusion, individual choice and rights, measures which would tend toward the prevention of abuse. There are also specific requirements for agencies to develop and regularly review policies and procedures for

  • documenting and reporting alleged, suspected or witnesses incidents of abuse of persons with developmental disabilities;
  • supporting the person who has been abused, or is suspected or alleged to have been abused; and
  • dealing with staff or volunteers who have or are alleged to have abused persons with developmental disabilities.

Where abuse at an agency may amount to a criminal offence, the agency must immediately report the alleged, suspected or witnessed behaviour to the police.[659] Agencies are required to provide mandatory education and training to staff, volunteers, board members and service recipients about issues related to abuse and on the agency’s policies.

 

Sector Specific Requirements or Initiatives

Particular sectors or service industries that have frequent contact with individuals who may be at some risk of abuse may have developed internal or industry-wide protocols, policies or mechanisms for addressing abuse. For example, in the financial services sector, many banks have developed internal training programs to assist staff in detecting and responding to potential abuse. This might include training that helps staff identify inappropriate use of powers of attorney and outline potential steps for addressing it, such as blocking further transfers, cancelling client cards, placing cautions on the account or in the last resort informing a family member, the police or the office of the Public Guardian.

 

  • QUESTION FOR CONSIDERATION: 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?

 


C.    The Current Legal Context

1.     Appointing a Substitute Decision-maker

The process for personal and public appointments of SDMs was thoroughly detailed in Part Three, Chapter III. Appointment processes are important to issues of abuse and misuse, as they offer an opportunity to screen out potential abusers, as well as to provide information and education both to SDMs and the persons they assist.

Those who have legal capacity to do so may personally appoint an SDM, either for property or personal care decisions, through a power of attorney (POA). Personal appointments such as POAs rely on the individual to screen potential SDMs to ensure that they are capable of undertaking the duties, and are willing and suitable to do so. As is described in Part Three, Chapter III, Ontario’s legislation regarding POAs aims to make these tools widely accessible, and so there are relatively few practical or procedural barriers to their creation, as compared with other jurisdictions. The resultant risk is that those creating POAs may not fully understand the potential implications of doing so, and may put themselves at risk of abuse, neglect or exploitation by their attorneys. In practice, individuals may choose an attorney for reasons that have very little to do with who would exercise that role the best, and more to do with family dynamics. As well, as private appointments, these powerful documents are amenable to very little scrutiny, so that abuse or misuse may be difficult to detect. Part Three, Chapter III explored a number of potential amendments to the requirements for creation of POAs that might have an impact on risks related to abuse and misuse.

Public appointments (guardians) are available to those who do not have the legal capacity to appoint their own SDM. While those falling under guardianship are to be consulted about their preferences for an SDM, the ultimate decision is made by the court (in a court-appointed guardianship) or the PGT (for replacement applications under a statutory guardianship). The screening of potential guardians is therefore carried out by a public body.

In either case, most SDMs will be family members of close friends: under POAs because these are the people that grantors are likely to choose, and under guardianships because these are the people most likely to be willing to be appointed and for whom there is in some circumstances a statutory preference. These are the individuals who know the affected persons best, and who might be expected to best understand their values and hopes, to have their well-being at heart, and to have the requisite dedication and commitment to carry out the sometimes extensive responsibilities associated with this role. As was noted above, these are also the persons with whom the individual who lacks or who is preparing for the possibility of lacking legal capacity is likely to have complex ongoing ties of interdependence.


2.     Roles and Responsibilities of Substitute Decision-makers

Although the means of creating and monitoring personal and public appointments differ, the roles and responsibilities of guardians and of persons acting under a POA are largely similar. There are some differences, however, between the roles of SDMs for property and those for personal care.

 

SDMs for Property

An SDM for property is a fiduciary, and must carry out his or her duties diligently, with honesty and integrity, and in good faith, for the benefit of the individual.[660] In considering the benefit of the individual, the SDM for property must take into account personal comfort or well-being, where that may be affected.[661] An SDM for property may be compensated.[662] If the SDM is not compensated, he or she must exercise the degree of care, diligence and prudence as she or her would for her or his own affairs; if compensation is received, then the standard is that of a person in the business of managing the property of others.[663] If the SDM breaches his or her duties, he or she is liable for damages, unless the court decides to reduce the damages because the SDM acted honestly, reasonably and diligently.[664]

In managing the property, the SDM shall make those expenditures that are reasonably necessary

  • for the individual’s support, education and care;
  • for the support, education and care of the individual’s dependants; and
  • that are necessary to satisfy the individual’s legal obligations.

Where the property is limited, these expenditures are in a hierarchical order; for instance, expenditures may only be made for the support, education and care of dependants where sufficient remains for the support, education and care of the individual. In making expenditures, the value of the property, the accustomed standard of living of the individual and her or his dependants, and the nature of other legal obligations must be taken into account. The SDM may make charitable donations, or gifts or loans to friends or relatives of the individual, but only under limited circumstances.[665]

The SDM must keep account of all transactions involving the property, according to the detailed requirements in the Regulation.[666] The SDM for property has a number of important procedural duties, such as:

  • explaining his or her powers and duties to the individual;
  • encouraging the participation of the individual in decisions related to property;
  • fostering regular personal contact between the individual and her or his supportive family members and friends; and
  • consulting from time to time with supportive family members and friends who are in regular personal contact with the individual, as well as those from whom the individual receives personal care.[667]

A statutory guardian for property must, if the person requests it, assist in arranging an assessment by a Capacity Assessor of the person’s capacity, as often as every six months.[668]

 

SDMs for Personal Care

The SDA provides guidance for making substitute decisions with respect to personal care. On decisions that do not fall under the HCCA, the SDM must respect the prior capable wishes of the individual as follows:

  • If, while capable, the individual expressed wishes or instructions relevant to a decision, the SDM shall make the decision in accordance with those wishes or instructions;
  • The SDM must exert reasonable diligence to ascertain whether such wishes or instructions were expressed;
  • The SDM must respect later wishes or instructions over earlier ones;

If no prior wishes or instructions were expressed, the SDM is to be guided by the best interests of the individual, taking into consideration the individual’s

  • values and beliefs held while capable, and that the SDM believes the individual would still act on if capable; and
  • current wishes, if they can be ascertained;

The SDM must also weigh whether the decision is likely to improve quality of life, prevent its deterioration, or reduce the extent or rate of any deterioration; and whether the benefits of the decision will outweigh the risk of harm from an alternative decision.[669] In general, the SDM must choose the least intrusive and restrictive course of action available and appropriate in the circumstances. Confinement, monitoring devices or means of restraint must not be used unless they are essential to prevent serious bodily harm to the individual or to others, or they allow the individual greater freedom or enjoyment.[670]

The procedural duties for an SDM for personal care are very similar to those for a property SDM, and include the following:

  • explaining his or her powers and duties to the individual;[671]
  • encouraging the individual to participate, to the best of his or her abilities, in decisions that are being made;[672]
  • fostering regular personal contact between the individual and supportive family members and friends;[673]
  • fostering as far as possible the independence of the individual;[674] and
  • consulting from time to time with supportive family and friends who are in regular contact with the individual, as well as those providing personal care.[675]

The SDM must keep records of decisions made, in accordance with the regulations.[676] An attorney for personal care must, if the person requests it, assist in arranging an assessment by a Capacity Assessor of the person’s capacity, as often as every six months.[677]


3.     Existing Mechanisms for Addressing Abuse and Misuse

Ontario’s legislation already contains a considerable number of measures that may contribute to preventing, identifying and addressing abuse through substitute decision-making powers. Some mechanisms apply to all SDMs. Others are specific to POAs or to guardians, reflecting the different nature of the appointment processes.

Mechanisms for all SDMS

Record-keeping requirements: As was detailed above, all SDMs are required to keep accounts of their activities on behalf of the person they are appointed to assist.

Procedural duties: The SDA includes a number of requirements that increase transparency and accountability for SDMs, including duties to explain their role to the person, foster supportive contact with family and friends, and to consult from time to time with family and friends in the discharge of their responsibilities;

Standard of care: SDMs for property are held to a fiduciary standard, while SDMs for personal care are required to act diligently and in good faith.

Clear requirements for decision-making: The clear requirements as to the principles and considerations to be taken into account in the discharge of the SDMs role make it easier to determine whether the SDM is acting to benefit the person rather than his or herself.

Investigative powers of the PGT: Sections 27 and 62 of the SDA provide the PGT with the duty and the powers to investigate “any allegation that a person is incapable” with respect to either property or personal care and that “serious adverse effects are occurring or may occur as a result”. If the results of the investigation reveal reasonable grounds to believe that a person is incapable and that serious adverse effects, as defined in the legislation, are or may be occurring, the PGT shall apply to the court for a temporary guardianship, which shall not exceed 90 days and which must set out the powers of the PGT and any conditions imposed on the guardianship. The SDA gives the PGT significant discretion in determining the steps necessary for an investigation, as well as powers of entry and access to records for the purposes of carrying out these investigations.[678]

 

Mechanisms for POAs

Execution requirements: As is detailed more thoroughly in Chapter VII, the SDA includes a number of requirements for the creation of a POA that are intended to ensure that those creating POAs understand the implications, and are not coerced into creating these documents. These include the requirements for independent witnesses to the creation of the power of attorney, and for a statement of intent in creating a continuing POA for property, among others.  

Passing of accounts and other powers of the Court: The Superior Court of Justice may give directions on any question arising in connection with the exercise of a POA, upon application from the attorney, dependant, attorney or guardian for the other domain, the PGT, or any other person with leave of the court.[679] The court may give such directions as it believes are for the benefit of the individual and her or his dependants, and as are consistent with the SDA. 

As well, an application may be made to the court to have part or all of the property accounts of the attorney passed. Such an application may be made by the attorney, the grantor, the attorney or guardian for personal care, a dependant of the grantor, the PGT, the Children’s Lawyer, a judgment creditor, or any other person to whom the court grants leave. The court has a wide range of powers upon the passing of accounts, including directing the PGT to bring an application to become the guardian, suspension of the power of attorney or appointment of the PGT as guardian pending investigation, ordering a capacity assessment of the grantor of the POA, or termination of the POA.[680]

 

Mechanisms for Guardians

Role of the PGT in Screening Applications: As is described in Part Three, Chapter III, the PGT is responsible for reviewing applications to replace it as statutory guardian. As well, for all applications for court-appointed guardianships, the PGT is a statutory respondent.[681] The PGT reviews these applications, and will send a letter addressing the issues raised by the application to counsel for the applicant as well as to the Registrar for the Superior Court of Justice. In most cases, issues are clarified and resolved prior to hearing, but in rare cases, the PGT may appear at the hearing to submit responding evidence or make submissions or both.[682]

Passing of Accounts: As with attorneys acting under a POA, guardians are required to keep accounts, and a guardian, attorney, the individual, a dependent, the PGT, the Children’s Lawyer, a judgment creditor, or any other person with the leave of the court, may apply to have financial accounts passed. As well, the PGT has a general power to request a copy of the records kept by a guardian of either property or personal care under the SDA.[683]

Registration: The PGT is mandated to keep an updated register of guardians, both of property and of the person. This register includes the name and address of both the individual and of the guardian(s) for that person. For each guardian, the register includes information on how the guardian acquired her or his authority; any restrictions on that authority; the date that the authority took effect, changed or terminated; and for guardians of the person whether the authority is full or partial and if partial the areas where the guardian has authority.[684]

Management Plans: As is discussed in Part Three, Chapter III, applicants for property or personal care guardianship must prepare management or guardianship plans.  These plans may be amended with the approval of the PGT, or if necessary through a return to court.


D.    Concerns and Options for Reform

1.     Critiques of Existing Mechanisms

During the preliminary consultations, many stakeholders raised concerns that these mechanisms for addressing abuse through and misuse of substitute decision-making powers are insufficiently effective. While it was generally felt that the substantive duties and requirements placed on SDMs were appropriate, there was a widespread perception that these may not be effectively implemented. [685] Concern focussed on three main areas:

  1. Lack of understanding of the law: both guardians and those acting under POAs frequently are unaware of their roles and responsibilities under the SDA, and consequently may fail to respect the limits of their authority or to meaningfully carry out their procedural duties. As well, as was discussed in Part Three, Chapter III, those granting POAs often do not understand the full implications of the extensive powers they are granting and the risk for abuse: this may result in the selection of an inappropriate attorney or attorneys or the failure to include sufficient effective safeguards in the document.
  2. Lack of effective monitoring mechanisms: the mechanisms available for monitoring the activities of guardians and attorneys are limited, and those mechanisms that exist are largely “passive” rather than proactive; for example, while the duty to maintain accounts is important, those acting under a POA may never be required to share those accounts with anyone. As a result, it may be difficult to detect abuse when it is occurring. ARCH Disability Law Centre comments that

    The mechanisms available … [are] all passive in the sense that they each require the ‘incapable’ person to initiate an action that may lead to monitoring or scrutiny of the guardian’s actions. With limited access to rights advice and legal counsel, many ‘incapable’ people are prevented or limited from triggering these mechanisms.[686]

    Notably, under the HCCA, while a health practitioner has the power to apply to the CCB to raise concerns that an SDM for treatment, admission to long-term care or personal assistance services is failing to make decisions in accordance with the law,[687] there is no means for the individual who rights are directly affected to make such an application and attempt to enforce their rights.

  3. Lack of effective redress mechanisms: where abuse or misuse is detected, concerns have been voiced that the means for addressing it may be inadequate, slow, inaccessible or offer insufficient redresss. Given the importance of the rights at stake when a person is placed under substitute decision-making, meaningful and accessible mechanisms for holding the SDM to account are essential. For example, a slow response may be meaningless: as many pointed out with respect to financial abuse, “once the money is gone, it is gone”, and the individual is left with the resultant long-term financial difficulties and limited options. 


2.     Potential Alternative or Additional Mechanisms for Preventing, Identifying and Addressing Abuse

Concerns regarding abuse and misuse of appointments are not restricted to Ontario. The section below highlights a number of provisions that have either been enacted or considered and recommended in laws relating to substitute decision-making appointments in other jurisdictions that may contribute to the prevention, identification and addressing of abuse through appointments. 

As noted above, issues related to dispute resolution were identified as a significant shortfall in addressing abuse. Options for reform related to dispute resolution are dealt with in Part Four, Chapter II, and related issues regarding advocacy and supports to access to the law are addressed in Chapter III of that Part. Lack of understanding among those represented by an SDM as well as by those acting as such, of the responsibilities and roles of those SDMs, together with some options for increasing meaningful access to information, is dealt with in Part Three, Chapter III.D.2 for POAs and in Part Four, Chapter III for guardianships, as well as being discussed in a more holistic manner in Chapter IV of that Part. 

It should be noted that many jurisdictions treat appointments related to property differently from those related to personal care issues, recognizing that concerns related to abuse are significantly different when it comes to issues related to property. This distinction should be kept in mind when considering the various options outlined below. 

Potential law reform measures in this section have been divided into four categories: those related to increasing understanding of the roles and responsibilities of SDMs; those that create mechanisms for monitoring use of these powers and identifying abuse; those that create or strengthen complaints and investigation mechanisms; and those that aim to limit or prevent loss of funds through improper use of appointments. These four areas should be thought of in relation to each other: for example, monitoring and oversight mechanisms must be carefully coordinated with complaints and investigations mechanisms; or extensive education programs may reduce the need for intensive oversight and supervision. 

Increasing understanding of roles and responsibilities of SDMs

Information and education for SDMs: While the appointment of a guardian is clearly a more rigorous process than the appointment of a power of attorney, it is nevertheless the case that guardians may not have a clear understanding of their duties and powers. As noted in Part Three, Chapter II, the role of an SDM is very challenging, but in Ontario those who take it up are provided with few formal supports to help them perform it well.  

The Australian state of Victoria currently provides optional training sessions for newly appointed guardians and administrators. The Victorian Law Reform Commission, in its review of guardianship law in that state, supported reforms to allow the Victorian Civil and Administrative Tribunal (VCAT) to order individuals to complete training as a condition of appointment as a guardian or administrator, commenting that, “[t]he Commission sees great value in enhanced training for all substitute decision makers, the vast majority of whom are well-meaning people who have accepted appointment to a very difficult and unfamiliar role”.[688]                 

ARCH Disability Law Centre, in their paper on protecting the rights of persons with disabilities who are under guardianship, supports mandatory information and education programs for guardians, and suggests that training should cover legal obligations under the SDA; the scope and limits of an SDM’s decision-making authority; the rights of the person under guardianship, as well as educating SDMs on how to carry out their responsibilities in a manner that respects the dignity, autonomy, participation and social inclusion and overall equality rights of the individual.[689]  

Signed undertakings by SDMs: The Victorian Law Reform Commission further recommended that guardians and administrators be required, at the time of their appointment, to sign an undertaking to comply with their responsibilities. While the Commission did not recommend particular sanctions for failure to comply with such an undertaking, “the document would be available for use in any subsequent proceedings concerning failure of a substitute decision maker to comply with a particular duty”,[690] as well as ensuring that guardians are aware of the seriousness of the obligation that they are undertaking and the nature of their statutory duties. 

 

  • QUESTION FOR CONSIDERATION: 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?

 

Oversight and Supervision

As was detailed above, Ontario provides some mechanisms for monitoring or supervising SDMs, the most notable being the requirement for guardians to create management plans, and the duty for SDMs to maintain accounts combined with the provisions for passing of accounts. However, most of Ontario’s mechanisms for addressing misuse or abuse of the power of an SDM require the person under representation to take active steps to invoke oversight. ARCH Disability Law Centre observes that, 

The mechanisms available … [are] all passive in the sense that they each require the ‘incapable’ person to initiate an action that may lead to monitoring or scrutiny of the guardian’s actions. With limited access to rights advice and legal counsel, many incapable people are prevented or limited from triggering these mechanisms.[691]

Some jurisdictions give public bodies much more robust powers and responsibilities for oversight of SDMs. Some examples are provided below.  

Reporting requirements: Some jurisdictions require proactive regular reports from guardians, particularly those with financial responsibilities. In Victoria, for example, administrators must submit financial statements to the VCAT on an annual basis and otherwise as directed.[692] This requirement does not apply to persons acting under a power of attorney or to guardians for personal care-type issues (guardians). The Victorian Law Reform Commission rejected suggestions that these requirements be expanded to these groups, commenting that the cost of perusing reports was likely better spent on providing improved training and support for guardians.[693]

“Visitor” programs: Some jurisdictions include in their legal capacity, decision-making and guardianship legislation active supervisory powers over guardians and in some cases attorneys. For example, the Mental Capacity Act, 2005  (MCA) of England and Wales not only requires the Public Guardian to maintain a registry of persons acting under powers of attorney and of deputies for property or personal welfare, but also to supervise deputies, and to receive regular reports from deputies and attorneys.

As well, the MCA creates a role for “Court of Protection Visitors”. These visitors, some of whom are designated “special visitors” with expertise in capacity-related disabilities, may be ordered by the Court of Protection to visit deputies, attorneys or the individuals for whom these persons are acting and to prepare reports for the Public Guardian on issues as directed.[694] The MCA’s Code of Practice describes their role as follows:

The role of a Court of Protection Visitor is to provide independent advice to the court and the Public Guardian. They advise on how anyone given power under the Act should be, and is, carrying out their duties and responsibilities. There are two types of visitor: General Visitors and Special Visitors. Special visitors are registered medical practitioners with relevant expertise. The court or Public Guardian can send whichever type of visitor is most appropriate to visit and interview a person who may lack capacity. Visitors can also interview attorneys or deputies and inspect any relevant healthcare or social care records. Attorneys and deputies must co-operate with the visitors and provide them with all relevant information. If attorneys or deputies do not co-operate, the court can cancel their appointment, where it thinks that they have not acted in the person’s best interests.[695]

In addition to investigating abuse, visitors can assess the general wellbeing of the individual and provide advice and support to attorneys and deputies.

The draft Irish bill takes a very similar approach, with comprehensive registry systems, reporting requirements, a supervisory role for the Public Guardian, and the creation of specialized and general “visitors”: a distinctive feature is that these functions extend also to “assisted” and co-decision-making arrangements.[696]

The “Community Visitors” system in the Australian state of Queensland is focussed on persons in congregate settings, such as long-term care homes and mental health facilities. This system has both oversight and complaints functions. As part of their oversight functions, they regularly visit mental health facilities and other sites (other than private homes) where individuals with diminished capacity reside or receive services[697] to review and provide reports on matters including:

  • the adequacy of services for the assessment, treatment and support at the site;
  • the appropriateness and standard of services for the accommodation, health and wellbeing of consumers at the site;
  • the extent to which consumers at the site receive services in the way least restrictive of their rights;
  • the adequacy of information given to consumers at the site about their rights; and
  • the accessibility and effectiveness of procedures for complaints about services for consumers at the site.[698]

The complaints functions of the Community Visitors program are described below, in the section on complaints mechanisms. 

Monitoring and Advocacy Office: ARCH Disability Law Centre has recommended that consideration be given to establishing 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  persons determined to be legally incapable. The Office would receive and review reports from SDMs, and where concerns arose, could investigate and if necessary require the SDM to take steps to achieve compliance. This central office would also be responsible for provision of rights advice, and for receiving and informally addressing complaints.[699]

Supervision by the Public Guardian: In Queensland, the Community Visitor program is supplemented by a range of supervisory powers provided to the Queensland Adult Guardian with respect to attorneys, guardians and administrators. These include powers to give advice to an attorney, guardian or administrator; by written notice, make an attorney, guardian or administrator subject to the Adult Guardian’s supervision for a reasonable period if the Adult Guardian believes, on reasonable grounds, that it is necessary in the adult’s interests including, for example, because the attorney, guardian or administrator has contravened the Act or his or her duties, but has not done so wilfully; and to require an attorney appointed in relation to financial matters, or an administrator, to present a plan of management for approval.[700]

Such programs of active supervision are not without their detractors. For example, the Victorian Law Reform Commission rejected suggestions regarding mechanisms for random audit and investigation of substitute decision-makers, commenting that,

The Commission does not believe that random investigation and auditing of substitute decision makers would be a useful or cost-effective means of encouraging people to fulfil this challenging role effectively. The trust and confidence necessary for an appointment to operate successfully could be undermined if substitute decision makers feel under suspicion of exercising their powers inappropriately. The Commission believes that it is better to encourage good appointments of substitute decision makers and to provide these people with high quality training and support about the role.[701]

 

  • QUESTION FOR CONSIDERATION: 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?


Powers to receive and investigate complaints

As noted above, the Ontario PGT has an obligation to investigate allegations that a person is incapable and serious adverse effects are occurring or may be occurring as a result. Where the investigation demonstrates reasonable grounds to believe that serious adverse effects are occurring, and that the appointment of a temporary guardian is necessary, the PGT must apply to the court to be named the temporary guardian. 

The PGT has very extensive powers to investigate allegations that fall within the scope of its mandate. For example, the PGT is entitled, as part of the investigation, to gain access to “any record relating to the person who is alleged to be incapable that the Public Guardian and Trustee reasonably believes to be relevant to the investigation”, including the person’s personal health records, pension fund information, and bank account and other financial records, information that most of us would consider highly private. The PGT can enter a facility or controlled-access residence for the purposes of the investigation without a warrant, and if right of entry is blocked, can obtain a warrant and the assistance of the police in executing it.[702]  

However, it is important to note that the scope of the PGT’s mandate is limited to those situations where “serious adverse effects” are or may be occurring. The standard for what is a “serious adverse effect” is high: for personal care issues, it includes “serious illness or injury, or deprivation of liberty or personal security”,[703] and for property management includes “loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependents”.[704] That is, the PGT’s investigation mandate does not extend to the more frequent, but less grave violations of statutory rights by SDMs. 

Further, the PGT’s role in this respect potentially involves significant state intervention in the lives of individuals. The PGT investigations process is “specifically designed to address situations where harm to an incapable person can only be prevented by a prompt application to court for an order appointing the Public Guardian and Trustee as the person’s temporary guardian” [emphasis added]. In Ziskos v Miksche, the court commented,

[T]he PGT is not mandated to offer free investigative services to private individuals to provide them with support in a dispute with other individuals regarding the management of the affairs of an incapable person. The PGT must expend her investigation resources in the interests of incapable individuals who find themselves at risk and without any other avenue for assistance.[705]

In other cases, the PGT has discretion as to how to proceed, as consistent with its overall mandate and statutory framework. The PGT may, for example, decide not to intervene, may intervene informally, refer the matter to social services or the police or a voluntary capacity assessment, or may apply to court for directions.[706] In 2013 – 2014, the PGT received 10, 574 calls to its investigation screening room (this may include multiple calls referring to a single person). From these, 239 investigations were opened. Callers are also commonly referred to other resources, including to private lawyers, the Capacity Assessment Office, the CCAC, health practitioners, law enforcement or other government offices. 

Of the 214 investigations completed in 2013 – 2014:

  • 78 were referred to other sources, including families, community agencies or the police;
  • 63 were concluded with a determination that an application to the court was not warranted due to insufficient evidence of mental incapacity or of serious harm;
  • 61 resulted in a property guardianship for the PGT through an examination for capacity under the MHA or a capacity assessment under the SDA, or resumption of statutory guardianship under section 19 of the SDA;
  • 8 cases resulted in applications to court for either permanent or temporary guardianship for property or personal care; and
  • 3 cases closed due to the death of the alleged incapable person during the investigation; and
  • 1 case was found to be a spurious allegation without legal foundation.[707]

During the preliminary consultations, stakeholders spoke favourable of the PGT’s investigative powers, but raised concerns regarding the PGT’s “last resort” mandate in this area. For example, in a research paper on access to justice for persons living in congregate settings, the Advocacy Centre for the Elderly commented that,

It has been ACE’s experience, however, that the Public and Guardian and Trustee has interpreted its duties very narrowly, saying it is a “service of last resort,” and does not use its authority to intervene and investigate often enough. Friends, family members and health practitioners concerned about the welfare of an older person often call ACE in frustration after being told by the Public Guardian and Trustee that an investigation will not be completed.[708]

This issue is closely linked with that of dispute resolution mechanisms, which is examined in more depth in the following Chapter. While there are mechanisms for raising concerns about the adherence of an SDM to statutory responsibilities, these are mainly through applications to Court, a path that is frequently seen as inaccessible due to its costs and formalities, and also relies on the initiative of the individual affected. This often leaves persons living under substitute decision-making with few realistic options for raising concerns about the activities (or failure to act) of their SDMs. In their paper on protecting the rights of persons with disabilities who are subject to guardianship, ARCH Disability Law Centre reviewed a series of case studies of persons who experience abuse or misuse of SDM powers under the current law, and concludes that

What emerges are significant gaps and weaknesses in the existing monitoring and accountability mechanisms for guardians in Ontario. In many cases, the SDA does technically contain mechanisms for monitoring and redress, but these mechanisms are practically ineffective because they are not accessible to many ‘incapable’ persons.[709]

Complaint systems: Several jurisdictions include some form of complaint mechanism for individuals who are represented by an SDM. Under the MCA of England and Wales, the Public Guardian is empowered to receive “representations” (including complaints) about the way in which deputies or persons acting under a power of attorney are exercising their powers.[710] The Public Guardian has investigatory powers, although it may investigate jointly with other bodies such as social services, National Health Services bodies, police or other bodies. It may also refer complaints to appropriate agencies, although it retains responsibility for ensuring that the Court of Protection has the information it requires to take any necessary actions with respect to attorneys or deputies.[711]

The Queensland Community Visitors system which was referenced above provides Visitors with a responsibility to inquire into and seek to resolve complaints, and where complaints cannot be resolved, to refer them promptly to the appropriate body for investigation or resolution or both.[712] They have broad powers to “do all things necessary or convenient to be done to perform the community visitor’s functions”, including entering visitable sites without notice, requiring the production of information or documents, and meeting with consumers alone.[713] In addition, the Adult Guardian for Queensland (similar in function to Ontario’s PGT) has the power to investigate any complaint or allegation that an adult with impaired capacity is being, or has been, neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements.[714] As part of this mandate, the Adult Guardian has the power to compel the production of detailed accounts from attorneys or administrators, and a right to “all information necessary to investigate a complaint or allegation or to carry out an audit”.[715] After an investigation or audit is completed, the Adult Guardian must create a report and provide it to the person at whose request it was carried out, as well as to every attorney, administrator or guardian for the person, and any interested party.[716]

As was noted above, ARCH Disability Law Centre has recommended the creation of a Monitoring and Advocacy Office with a number of functions, among them the receipt and resolution of complaints from individuals about the activities of their SDMs. This organization would have a mandate to informally resolve complaints where possible, as well as to investigate. Where a complaint could not be resolved in this fashion, the individual would receive advice about formal dispute resolution options.[717]

 

  • QUESTION FOR CONSIDERATION: Are there new mechanisms for complaints or enhancements to the Public Guardian and Trustee’s investigatory powers that would be effective and appropriate for addressing concerns regarding abuse or misuse of the powers of substitute decision-makers? If so, what mechanisms would be most desirable, and how might they be practically implemented?

 

Limiting or Preventing Loss of Funds through Abuse

A common concern with mechanisms for addressing financial abuse through personal appointments is that, by the time the abuse is identified and the mechanisms for addressing it are activated, the money has often been spent, and no really meaningful redress is possible. While the offender may be prevented from further wrongdoing and may, if criminal proceedings are undertaken, be sanctioned, this may be small comfort to those individuals whose assets have been misappropriated, and who must live in diminished and perhaps quite difficult financial circumstances thereafter. There are some mechanisms either in place in other jurisdictions or recommended that aim to address this issue, at least partially. As with other responses to abuse, one must balance reductions in accessibility of these legal instruments with the potential for reduction in abuse.

Limits on Conflict Transactions and Gifts: Persons in a fiduciary relationship, such as persons exercising a POA or acting as a guardian, have a duty to avoid placing themselves in a position of conflict of interest.[718] As the scope of any fiduciary obligation will depend on the precise nature and scope of the relationship, some jurisdictions have taken the further step of codifying and clarifying the obligations of persons acting as SDMs with respect to conflicts of interest.

The state of Queensland in Australia has incorporated into its legislation specific limitations on conflict transactions for persons acting under a power of attorney. Its Powers of Attorney Act 1998 imposes a duty on attorneys acting in financial matters to avoid conflict transactions, unless the person granting the power of attorney has authorized that transaction, conflict transactions of that type, or conflict transactions in general. The definition of a conflict transaction makes it clear that a conflict will not exist merely because by the transaction the attorney deals with a property jointly held between the attorney and the person on whose behalf he or she is acting, acquires a joint interest in the property or obtains a loan or gives a guarantee or indemnity in relation to these types of joint interests.[719] Queensland’s Civil and Administrative Tribunal dealing with these matters is given authority to authorize certain conflict transactions,[720] as is the Supreme Court.[721]

In its 2008 Report, the Western Canada Law Reform Agencies noted that a “no personal benefit” duty for persons exercising a power of attorney may be unrealistic:

For instance, the duty may be impossible to meet where household expenses are shared because the donor and attorney are spouses, or because the attorney lives with the donor as the donor’s caregiver. Indeed, it may be at times unavoidable for the attorney to derive some personal benefit as a side effect to maintaining a beneficial lifestyle for the donor.[722]

The WCLRA further expressed concerns that attempting to define the duty to avoid conflict was likely to prove extremely difficult, and would likely involve elaborate and complex legislative provisions.

However, in its thorough 2010 review of Queensland’s guardianship law, the Queensland Law Reform Commission highlighted that breaches of a duty to avoid conflict transactions may also be a symptom of unacceptable attitudes, such as that older persons’ ‘money is a family matter”. In the case of older persons, children may view assets not as something that belongs to the older person and should be used for their benefit, but as a form of inheritance or shared asset.  There may even be a presumption that the older person “would not mind” if the assets are used to the benefit of others, even if that means that the older person suffers a detriment.[723]

In its Report, the Queensland Law Reform Commission exhaustively reviewed the provisions related to conflict transactions. It recommended the retention and strengthening of such provisions, stating,

Given that serious consequences may flow from failing to comply with the conflict transaction provisions, it is essential that the provisions are expressed as clearly as possible and deal appropriately with the types of conflict situations which commonly arise, particularly in family situations, so that being appointed as an attorney or an administrator does not become an unattractive proposition.[724]

The Victorian Law Reform Commission in its 2012 report on Guardianship recommended the adoption of similar measures. It noted that community responses had highlighted concerns that there was insufficient understanding of the circumstances where a conflict of interest might arise between the grantor of the power of attorney and the person exercising it.[725] It recommended that the law prohibit conflict transactions by enduring financial administrators, with clear and limited exceptions, such as where the transaction received prior authorization by a principal who had legal capacity to provide such authorization or where the transaction is authorized by the VCAT. It proposed a definition of conflict transactions as including those in which “there may be conflict, or which results in conflict, between: (a) the duty of a financial administrator or an enduring financial administrator towards the principal, and (b) either — the interests of the appointee, or a relation, business associate or close friend of the appointee, or (ii) another duty of the appointee”. [726]

It should be noted that the SDA already provides a clear set of positive obligations as to how attorneys for property should allocate the assets of the grantor, and provides guidance on issues related to gifts and loans. Continued issues around improper allocation of assets by attorneys may reflect, not an issue with the substantive legislative provisions, but either with knowledge of the law, or with the provisions in place for supervision and enforcement. It is not clear whether express provisions related to specific types of transactions, including a requirement to obtain express approval prior to undertaking them, would add significantly to what is already in place.

Authority to Freeze Accounts: In Saskatchewan, where a financial institution has reasonable grounds to believe that a vulnerable adult is being subjected to financial abuse, it may suspend the withdrawal or payment of funds from a person’s account for up to five business days. Immediately upon doing so, the financial institution must alert the Public Guardian and Trustee, which has the authority to require a financial institution to suspend the withdrawal or payment of funds from the person’s account for up to thirty days. The Public Guardian and Trustee is provided with the authority to investigate the allegations upon which the suspension of withdrawals or payments is made.[727]

Provision of bonds/security: Ontario law requires guardians, in some instances, to post security. These requirements could be extended to persons acting under a POA or other personal appointment related to property as both a deterrent to abuse, and a source of recourse in the case of abuse. However, it would be likely to have an inhibiting effect on access to POA; for this reason, ALRI declined to include such a recommendation in its review of proposals to address misuse of enduring POAs.[728]


  • QUESTION FOR CONSIDERATION: Are there mechanisms that could be put into place to reduce loss or damage to individuals through abuse of substitute decision-making powers, such as limits on conflict transactions, provision of authority 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?

 

E.     Questions for Consideration

  1. 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?
  2. 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?
  3. 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?
  4. 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?
  5. 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?
  6. 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?

 

 

 

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