II. Who May Act in a Decision-Making Role?

II. Who May Act in a Decision-Making Role?2017-03-03T21:48:11+00:00

A.    Introduction

As was thoroughly discussed in the preceding Chapter, under current Ontario law, where an individual is determined to lack legal capacity to make a particular type of decision, but a decision nonetheless must be made, a substitute decision-maker (SDM) will be appointed to make the decision on behalf of the individual. While the Public Guardian and Trustee (PGT) and trust companies can act as SDMs in certain circumstances, in the vast majority of cases, SDMs are family or close friends of the individual requiring assistance. This Chapter will review current law as to who may act as an SDM in Ontario, and consider some options for expanding who may act in these circumstances, as well as highlighting the need for better supports for family and friends who act in these roles.. Some of the considerations explored below may also be applicable to the question of who may act as a supporter or co-decision-maker, should Ontario legislation be amended to formalize such roles.

The role of an SDM is a demanding one, not to be taken lightly. The legislation makes this clear. Under the Substitute Decisions Act (SDA), guardians and those acting under a power of attorney (POA) are held to a high standard. A guardian, as well as a person acting under a POA for property, is a “fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit”,[414] while guardians and those exercising POAs for the person must exercise their duties “diligently and in good faith”.[415] Both the Health Care Consent Act (HCCA) and the SDA set out detailed and relatively complex requirements guiding how decisions are to be made on behalf of another person.[416] Guardians and persons acting under a POA have a number of procedural duties, such as explaining their powers and duties to the person for whom they are acting, encouraging the individual’s participation in decision-making, fostering contact between the individual and supportive family and friends, and consulting from time to time with family and friends.[417] Guardians and those acting under a POA must also keep detailed records of their activities.[418] Under the SDA, substitute decision-makers may be held liable in some circumstances for damages resulting from a breach of their duties.[419]

Beyond the legal responsibilities, SDMs often face many practical, emotional and ethical challenges. In some contexts, such as treatment, decisions may be high-stakes, involve complex information and require rapid response. Decisions about property management may have long-term consequences for the well-being of the person involved, while decisions about personal care may affect the most intimate aspects of an individual’s life. Decisions about admission to long-term care are rarely made in cheerful circumstances, and while admission may be necessary, such a decision will often be made over the objections of the person whom it is intended to benefit. Not infrequently, despite the guidance of the legislation, it will be far from clear what the “right” thing is to do in a particular circumstance. In addition, the reality is that there are relatively few practical supports for those taking on the role of substitute decision-maker.

It is not surprising then, that family members and close friends are often viewed as being those best equipped to tackle these challenges: they can often bring the profound commitment to the wellbeing of the individual that is necessary to perform this role well, together with a deep personal knowledge of the individual that can guide decision-making and assist with the practical and emotional aspects of the task.

It is also true, that not every individual will have family or friends who are able and willing to perform this role to the standard that is required. Not every family has the practical, ethical and emotional skills to perform this role, let alone the level of intimacy and commitment that is desired. Other families may be willing, but may be already overburdened with other challenges, and unable to take on another significant responsibility. And as is discussed briefly in Chapter II, demographic changes mean that a growing number of people have no family or close friends who are willing and able to act for them. This may be because a person has outlived all of her or his family and close friends, because geographical mobility has dispersed relationships, or because stigma and social isolation associated with some types of disabilities have eroded support networks. In all of these cases, alternatives beyond family and friends must be identified.          

Currently, Ontario’s Public Guardian and Trustee (PGT) fulfils an important role as decision-maker of last resort. Under both the HCCA and SDA, where there is no suitable person who is available and willing to act and decisions are required, the PGT can be appointed to do so. While this role is vital, the PGT cannot of course reproduce the type of intimate personal relationship that is often thought of as the ideal foundation for substitute decision-making, and some persons with disabilities may dislike the idea of having decisions made for them by “the government”, viewing it as intrusive. As well, the demographic changes referenced above are likely to create increasing demand for last-resort decision-making.

Advocates of supported decision-making, an evolving approach to decision-making described in the previous chapter, have acknowledged the challenge to the implementation of this approach posed by individuals who lack relationships of trust and intimacy. While substitute decision-making may often be best carried out through close personal relationships, supported decision-making is fundamentally premised on the presence of one or more supporters who have deep familiarity and commitment to the individual requiring assistance. By its nature, supported decision-making requires the existence of close personal relationships. In some cases, these do not exist.  As was noted by Michael Bach and Lana Kerzner in their 2010 paper for the LCO,

Many individuals with significant intellectual, cognitive and psychosocial disabilities simply do not have others in their lives with whom they are in a trusting relationship based on shared life experience and personal knowledge.  A life of discrimination and exclusion has left them without such relationships.  This does not mean that such relationships cannot be developed.  There is a large body of good practice and tools to assist people with more significant disabilities in developing personal relationships with others.  However, this work takes time, intentional relationship building, and community-based supports to facilitate the process, identifying individuals who can play this role and provide the person with a support network.

For people with significant disabilities the outcome of relationship-building supports is the development of relationships and support networks which can provide representational supports at some point in the future.  In their case, the access to representational supports maximizes exercise of their legal capacity.[420]

The Framework principles of promoting participation and inclusion point to the importance of designing society in such a way that older persons and persons with disabilities have meaningful connections to their communities and are well-integrated in society. The growing number of individuals who do not have such connections, who are marginalized and isolated and do not have family and friends to assist with decision-making needs, highlights broader societal shortfalls in promoting participation and inclusion. These broader social, economic and attitudinal barriers are beyond the scope of this project to address, but are part of the context that must be understood in evaluating legal capacity and decision-making laws and identifying options for reform.

Certainly, the law should respect and recognize existing mechanisms for participation and inclusion, and should not create barriers to the development and maintenance of the relationships that are essential to the decision-making processes for those affected by this area of the law.  The challenges experienced by those individuals who have no family and friends to assist them with decision-making needs highlight the close connection between the principles – in this case, between the inclusion and participation in society of persons with disabilities and older persons and the ability of these individuals to develop and exercise autonomy and independence. For example, a person who has, as a result of the stigma and discrimination associated with his or her disability, had limited  opportunities to participate in education, employment or social activities and as a result has a limited social network, will be less likely to have the close and trusting relationships that can best support decision-making, whether through supported or co-decision-making or through substitute decision-making that is committed to participation and close attention to the values and wishes of the person for whom the decision is made. As well, the principle of recognizing that we all live in society highlights the importance of paying attention to the needs and circumstances of those who have relationships with persons who fall within this area of the law, and who are currently or might possibly take on a formal decision-making role. As was explained in the previous chapter, those family and friends who assist with decision-making needs face responsibilities that may be heavy and have significant impact on their own lives: while they may be committed to this role, the way that role is structured and the supports that they receive in carrying it out will have a significant effect on their own wellbeing and ability to participate in the broader society. 

 

B.    The SDA and HCCA: Who May Act

This section reviews the current statutory requirements surrounding who may act as a substitute decision-maker (SDM). A review of the current provisions reveals:

  • a clear preference for close and trusting relationships as the basis for any substitute decision-making arrangement, with provisions designed to make it relatively easy for family members to take up this role, should they wish; 
  • an effort to restrict the role of the PGT to those situations where immediate action may be required to prevent long-term negative consequences, or where there are no appropriate and willing individuals who have a close relationship with the individual;
  • an effort to take into account, wherever practicable, the wishes or expressed preferences of the individual for whom decisions are to be made; and
  • attention to potential problems of conflict of interest.


1.     Appointments of Individual Substitute Decision-makers

As was noted above, most SDMs are private individuals, family and friends. This section briefly outlines the mechanisms through which private individuals may be appointed as SDMs, whether under the SDA or the HCCA. 

The Substitute Decisions Act

As is explained more fully in Part Three, Chapter III, under the SDA, where an individual requires assistance with decision-making, SDMs may be appointed through two routes: personal appointments through a POA, and public appointments resulting in guardianship. Appointments for guardianship are made through statutory appointments and court appointments. In relatively rare situations, the PGT may be appointed by the court as a temporary guardian following a “serious adverse effects” investigation.

Powers of Attorney: POAs are personal appointments, and as such provide individuals with both the choice and the responsibility to consider potential substitute decision-makers and select the person or persons they believe are best suited to that role. The SDA places no restrictions on who may be appointed to act under a POA except that,

  • The attorney must meet a minimum age requirement (age 18 for property, and 16 for personal care).[421]
  • The attorney must him or herself be capable with respect to property or personal care (depending on the type of POA in question).[422]
  • The PGT may only be named as attorney with consent in writing of the PGT.[423]
  • For POAs for personal care, the attorney may not be a person who provides health care, residential, social, training or support services to the grantor for compensation, unless the service provider is also the grantor’s spouse, partner or relative.[424]

Statutory Guardianship and Replacement Applications: As is detailed in Part Three, Chapter III, statutory guardianship for property may result either from an Examination for Capacity under Part III of the Mental Health Act (MHA) or from a Capacity Assessment by a designated capacity assessor under the SDA. Where a person is found to lack capacity to manage property under either process, and there is no existing continuing POA for property or guardianship, the PGT will become the statutory guardian of property upon receipt of the certificate of incapacity. An application to replace the PGT as statutory guardian of property may be made by:

  • the person’s spouse or partner;
  • a relative of the person;
  • an individual holding a continuing POA for property for that person, if that POA was completed prior to the certificate of incapacity and did not give the attorney authority over all of the person’s property; or
  • a trust company, if the person has a spouse or partner who consents in writing.[425]

The PGT reviews the application, and if the PGT is satisfied that the management plan submitted by the applicant is appropriate and that the applicant is suitable, the PGT shall appoint the applicant as the replacement statutory guardian. The SDA directs the PGT to consider, in reviewing the application, the legally incapable person’s current wishes if they can be ascertained and the closeness of the relationship between the applicant and the person.[426]

Court-appointed Guardians: Guardianship of either the person or of property may also be obtained through application to the Superior Court of Justice. A court-appointed guardianship may be made on the application of any person.[427] In appointing a person to act as court-appointed guardian, the court must comply with the following statutory directions.

  • The court shall not appoint a person who provides health care or residential, social, training or support services to the incapable person for compensation, with limited exceptions, such as if the individual providing services is the person’s spouse or partner, or the attorney under the POA.
  • The court shall not appoint the PGT unless the application proposes the PGT as guardian, the PGT consents, and there is no other suitable person who is available and willing to be appointed.
  • The court shall consider whether the individual being proposed as guardian is already acting under a POA for the person, the wishes of the person involved if they can be ascertained, and the closeness of the relationship between the proposed guardian and the person.[428]
  • A guardian for property must reside in Ontario, unless the out-of-province resident provides security in a manner approved by the court for the value of the property to be managed.[429]

 

The Health Care Consent Act

As befits the time-sensitive nature of decision-making related to health care, the HCCA sets up a simple system for determining the identity of the SDM where one is required. The statute lists, in descending order of preference, those who may act as decision-makers where a person has been found to lack capable for a particular necessary decision, as follows:

  • the person’s guardian of the person, if the decision required falls within the guardian’s scope of authority;
  • the person’s attorney for personal care, if the decision required falls within the attorney’s scope of authority;
  • a representative appointed by the Consent and Capacity Board (CCB), if the decision falls within the representative’s scope of authority;
  • the person’s spouse or partner;
  • a child or parent of the person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of a parent;
  • a parent of the person who has only rights of access;
  • a sibling of the person;
  • any other relative of the person (including those related by blood, marriage or adoption).[430]

An SDM appointed through this hierarchical list must be

  1. capable with respect to the decision to be made;
  2. at least 16 years of age, unless he or she is the parent;
  3. not prohibited by court order from having access to or giving or refusing consent on behalf of the person;
  4. available; and
  5. willing to assume the responsibility.[431]

If no person identified through the list meets the requirements, the PGT shall make the decision.[432]

 

2.     The Public Guardian and Trustee as Substitute Decision-maker

The SDA and HCCA empower the PGT to act as decision-maker, either as a guardian under the SDA, or for specific decisions under the HCCA, in a limited number of circumstances.

The PGT may become guardian for a person who lacks legal capacity in three ways:

  1. Statutory Guardianships for Property: as is described above, where a statutory guardianship results from a finding of legal incapacity to manage property under Part III of the MHA, or by a capacity assessor under section 16 of the SDA, the PGT will automatically become the guardian of property, unless there is an SDM already in place through a valid POA or guardianship. The PGT will continue as guardian so long as one is required, unless a replacement is approved, as described above.
  2. “Last resort” appointments by the court: The PGT may become the guardian of property or personal care through court-appointment, in the limited circumstances described above.
  3. Serious adverse effects investigations: This Paper deals at greater length elsewhere with powers of the PGT to conduct investigations where there are concerns that a person lacks capacity and serious adverse effects may or are occurring as a result. The important point here is that if, as a result of the investigation, the PGT has reasonable grounds to believe that the person is incapable with respect to property or personal care, and that the prompt appointment of a temporary guardian is necessary to prevent adverse effects, the PGT must apply to the court for an order appointing it as temporary guardian.

The PGT will also act as a decision-maker of last resort under the HCCA, as described above, and may consent (in rare circumstances) to appointment under a POA.

What is important to note from the above is that the PGT acts as decision-maker in two broad circumstances: where there is no other appropriate, available and willing person to act, and where, as with statutory guardianships and guardianships resulting from investigations, there is perceived to be a need for an entity that can act quickly to prevent dispersal of property (as with statutory guardianships) or to end ongoing abuse, neglect of exploitation.

In 2013-2014, the Public Guardian was acting for 21 clients under personal guardianship (3 on a temporary basis).[433]  The PGT notes that the court will appoint it to make personal care decisions only “very occasionally” and in most cases to “remove the individual from a situation of harm or to prevent access by third parties who are abusing the person”.[434]

It is more common for the PGT to act as guardian of property, most frequently through statutory guardianships. In 2013 – 2014, the PGT was a court-appointed guardian of property for 318 individuals. It was a statutory guardian for property for 4881 individuals who had received certificates under the MHA, and for 5567 individuals who had received a certificate of incapacity through a capacity assessment in the community. As well, it was acting for a small number of individuals (31) where a replacement statutory guardian had died, resigned or become legally incapable with respect to property management.[435] In 2013 – 2014, the PGT opened 1888 new property guardianship files, 841 through MHA certification and 1032 through capacity assessments.[436]

As guardian of property, the PGT will stream the client’s income into a special account, from which it will review and pay bills, provide funds for day-to-day purposes, and arrange payment for goods and services requested by the client that are affordable and of good value. The PGT will invest money that is not needed for day to day expenses, and may sell items that are no longer needed.[437]

The PGT has an internal complaints process through which clients can raise concerns, as well as being amenable to the oversight of the courts as are other guardians.. In addition, as the PGT is a government service, complaints regarding PGT activities may be made to the Ontario Ombudsman. The PGT has implemented extensive internal financial controls and information systems. Internal audits are conducted to assess management practices, and the PGT’s financial statements are reviewed by the Office of the Auditor General.

 

C.    Expanding the Options for Who May Act

This section considers four options for expanding the pool of potential SDMs: creating a class of specialized and regulated professional fiduciaries, engaging the general public through volunteer or other programs, creating a role for community organizations and recognizing personal support networks. 

1.     Professional Fiduciaries

A fiduciary relationship is one in which “the principal’s interests can be affected by, and are therefore dependent on, the manner in which the fiduciary uses the discretion which has been delegated to him. The fiduciary obligation is the law’s blunt tool for the control of this discretion.”[438] As noted above, under the SDA, SDMs for property are considered to have a fiduciary obligation to the person represented. A professional fiduciary is a person who provides fiduciary services in a professional rather than a personal capacity. A professional fiduciary may or may not charge a fee for services: individuals, for-profit corporations and non-profits can all act as professional fiduciaries.

Professional fiduciaries differ from personal ones in two important respects: their motivation for taking up the responsibility associated with the role, and the likelihood that they will be acting for more than one individual at any given time. These differences may have implications for the types of responsibilities they can most appropriately take on, or for the requisite nature and level of oversight for their activities.

Professional fiduciaries might be seen as an appealing source of substitute decision-making in two circumstances.  Where individuals have no trusting relationship with an appropriate person who is willing and able to act on their behalf, professional fiduciaries might be an alternative to the PGT. As well, some might find the idea of a professional fiduciary appealing because their specialized focus gives them the opportunity to develop experience and expertise in fulfilling this role. 

Under current Ontario law, trust companies may act as guardians, trustees and attorneys under a power of attorney. Under the SDA, the replacement provisions for statutory guardians explicitly permit trust companies to be appointed by the PGT under certain circumstances. Trust corporations are already heavily regulated, which provides some assurance and protection to members of the public who entrust their assets or decision-making to them. Without such extensive regulation, there may be considerable risk in allowing professionals access to the funds or persons of individuals who may be very vulnerable due to a combination of disability and social isolation.

The question is whether it would be beneficial to permit other types of professionals to offer professional fiduciary services. For example, social workers or members of similar helping professions might be well suited to providing some types of substitute decision-making for some groups.

An interesting phenomenon to consider in this regard is the development of partnerships between trust companies and non-profits in order to provide more affordable fiduciary services. An example is the collaboration between the non-profit organization, Support & Trustee Advisory Services (STAS) and Royal Trust.[439] The purpose of the collaboration is to provide families of children with disabilities affordable access to trustee services.[440] The actual Trustee is Royal Trust, which manages the trust funds put aside for the beneficiary. Parents enter into a “Participation Agreement” with STAS, which has a standing agreement with Royal Trust. Through this arrangement, parents with relatively small amounts of money (a minimum of $10,000) are able to gain access to professional trustee services. As the “Advisor” which is party to the trust agreement, STAS maintains contact with the beneficiary of the trust and the beneficiary’s family and support circle, and provides guidance and advice to Royal Trust based on its knowledge of the beneficiary’s financial needs. [441]

The state of California provides an example of a comprehensively regulated professional fiduciary scheme. Under California’s Professional Fiduciaries Act, professional fiduciaries are required to obtain a license before they can act.[442] In order to get licensed, applicants must complete 30 hours of pre-licensing education in approved education courses.[443] To renew a license, applicants must complete 15 hours of continuing education.[444] An approved education course must be “relevant to fiduciary responsibilities of the person or of estate management for conservators, guardians, trustees, or agents under durable power of attorney, or of the court system or ethics for fiduciaries”. [445]

The Act also establishes the Professional Fiduciaries Bureau (PFB) to license, oversee, and regulate professional fiduciaries.[446] The PFB’s role is to license professional fiduciaries, approve classes/courses that fulfill pre-licensing and continuing education requirements, administer licensing exams, and develop a code of ethics for professional fiduciaries.[447]  The bureau must not issue a licence to persons who have been convicted of a crime that is “substantially related to the qualifications, functions, or duties of a fiduciary”, who have “engaged in dishonesty, fraud, or gross negligence in performing the functions or duties of a fiduciary”, who have been removed as a fiduciary by a court for breach of trust committed intentionally, with gross negligence, in bad faith, or with reckless indifference, or who have “demonstrated a pattern of negligent conduct”.[448]

The bureau is also required to investigate complaints; and, where appropriate, to refer complaints to law enforcement.[449]  It is empowered to revoke a license based on complaints and to take action on unlicensed activity.[450] The PFB maintains a list of qualified, licensed private professional fiduciaries, which can be found on their website.[451] It is also required to provide information regarding any sanctions imposed on licensees, including, but not limited to, information regarding citations, fines, suspensions, and revocations of licenses or other related enforcement action taken by the bureau relative to the licensee.[452]

Licensees are required to keep complete and accurate records of client accounts, and to make those records available for audit by the bureau.[453] They must also file an annual statement with the PFB. The statement must provide the PFB with, amongst other things, the following information:

  • whether the licensee has been removed as a conservator, guardian, trustee, or personal representative for cause;
  • the case names, court locations, and case numbers for all matters where the licensee has been appointed by the court;
  • whether she has been found by a court to have breached a fiduciary duty;
  • whether she has resigned or settled a matter in which a complaint has been filed, along with the case number and a statement of the issues and facts pertaining to the allegations;
  • any licenses or professional certificates held by the licensee;
  • any ownership or beneficial interests in any businesses or other enterprises held by the licensee or by a family member that receives or has received payments from a client of the licensee; and
  • whether the licensee has been convicted of a crime.[454]

As is evident, the regulatory regime in California is fairly specific in terms both of the requirements for obtaining a license to operate as a professional fiduciary, and the requirements to remain licensed. However, unlike in Ontario and Saskatchewan, where trust companies are subject to capital requirements, neither the statute nor the regulations prescribe similar requirements for professional fiduciaries in California, nor do they seem to require professional fiduciaries to provide a bond or obtain insurance coverage.

 

  • QUESTION FOR CONSIDERATION: Should Ontario expand the role that specialized professionals may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:

a)     For what types of decisions should these professionals be authorized to act?

b)     What types of training, licensing or educational requirements should be required of these professionals?

c)      What types of oversight and monitoring should be put in place for these professionals? Who should carry out this oversight and monitoring?

d)     What should be the responsibilities and liability of these professionals?

e)     What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?

 

2.     Engaging the Public

A number of jurisdictions have instituted volunteer programs through which members of the public may act for individuals who are socially isolated and do not have family or friends to assist them. In some cases, these volunteer programs are developed and supervised directly by government, while in others this role is contracted to community agencies. In a third approach, government may directly fund individuals to provide the necessary services.

Government Appointed and Supervised Volunteers

One example of a government-run volunteer guardianship program is the “Community Guardianship Program” established in the Australian state of Victoria. This is a small program – in the fiscal year 2012 – 2013, 62 community guardians provided supports to 75 individuals – but a thoroughly developed one.[455]  In Victoria, the Office of the Public Advocate is the guardian of last resort. Where the Victorian Civil and Administrative Tribunal (VCAT) has appointed the Public Advocate as guardian, the Public Advocate may delegate that power to a volunteer community guardian. A volunteer guardian “assists a person with a disability to make reasonable decisions about some aspects of their lifestyle”.[456] The decisions that may be made by a community guardian include matters related to where the person lives, access to services, who may access the person, health care and employment. The community guardian is also expected to provide individual advocacy for the person where they are at risk of or are experiencing abuse or neglect, and must provide oral or written reports to VCAT as required. A community guardian generally only works with one person at a time.[457]

Community guardians are expected to work closely with others who are involved with or working to support the person, including family members, social workers, care providers, and professionals who are involved with the person.[458]

Community guardians must be over 18 years of age and meet other standards set by the Public Advocate. As delegates of the Public Advocate, community guardians are bound by the same legal responsibilities, liabilities and protections as that body.[459] They may receive an honorarium for their contributions and may claim expenses.[460]

A program coordinator provides training, support and advice for those who wish to act as community guardians.  Community guardians must complete training prior to commencing their duties, and are expected to complete a minimum of two in-service training sessions per year, as well as having access to other training opportunities. Program coordinators provide resources, and are available to provide advice, attend case conferences and reviews, assist with accessing information and accompany guardians on visits.[461] The Public Advocate has a set of minimum standards for guardians, including for the level of personal contact with the individual, working with family members and other key people, taking into account the views of the person and maintaining records.[462] For the first five years, guardians receive an annual performance management and review; after that period, reviews occur at least every second year.

Ireland’s draft bill reforming its capacity and decision-making laws appears to envision something similar: it requires the Public Guardian to establish a panel of “persons willing and able to act as decision-making representatives” for individuals who require someone to act in such a role, but who have no suitable persons willing to act. The Public Guardian will nominate persons to the court for appointment as decision-making representatives, and the court will select from among those nominees.[463]

Section 87 of the SDA permits the PGT to appoint volunteers to provide “advice and assistance under this Act”. The PGT does not currently and has not in the past administered a volunteer program under this section.

Community Agencies and Volunteer Programs

In some jurisdictions, community agencies are given the task of recruiting, training and overseeing volunteers to act for persons who have no relatives or close friends to do so. One example is the German Betreuer system. In Germany, guardianship and curatorship have been replaced by one flexible measure, namely the ‘betreuung’, who may be appointed from among a range of private or public individuals.[464] In selecting a betreuer, the Guardianship Court must accept any preference that the individual for whom the betreuer is to be appointed expresses.[465] If the individual has no preference, the courts follow a hierarchical list of appointees, beginning with relatives or other persons with a close relationship to the individual, followed by professional guardians, and finally public guardians of the local ‘‘Betreuung-Authority”.[466] Under the regime, private, non-profit advocacy organizations (called Betreuungsverein) are created in each city and county. Their primary role is to recruit, orient, train and advise volunteer betreuers.[467] These organizations may also accept appointments as betreuers for individuals for whom individual volunteer betreuers are not available.[468] As well, the Betreuungsverein are required to recruit, train and provide supports to individual betreuers.[469] The court oversees the betreuer, with the support of the local Betreuung-Authority,[470] and the betreuer has to deliver an annual report.[471] 

In an unpublished paper prepared for the LCO, Michael Bach and Lana Kerzner similarly recommend the engagement of community agencies in provision of decision-making supports to persons who are socially isolated.

[T]his report recommends a largely community-based approach to ensuring proactive measures for alternative courses of action are in place, which could be delivered by designating existing transfer payment agencies already contracted by either the Ministry of Community and Social Services or the Ministry of Health and Long-term Care, and associated structures such as Community Care Access Centres.  At the same time, provision should be available for application directly to the Minister responsible, or the Minister’s agents when existing community resources do not suffice.[472]

In their vision, these community agencies would provide services, both to individuals who require decision-making supports, and to decision-making supporters and to third parties to legal relationships with persons who may require such support in order to ensure effective alternative courses of action are in place to appointment of substitute decision makers and guardians.

Government-Funded “Mentors”

The Swedish system of “mentors” was described in Part Three, Chapter I. Suffice it to note here that mentors act as “counsellors” to those who need them, on a consent basis, and through court appointment. While relatives are most often appointed as mentors, professionals such as lawyers, accountants, and social workers may act, and may do so for multiple individuals.[473] Interestingly, if the person for whom a mentor is appointed lacks the resources to pay the mentor for her or his services, then the state will pay, and this is true even with respect to mentors who are relatives of the person for whom they are appointed.[474] It has been noted, however, that recruitment of suitable candidates to act as mentors is a problem.[475] Another shortcoming identified in the Swedish model is the lack of training for mentors, as well as inadequate attention being paid to the personal, non-financial aspects of the roles that mentors have to perform.[476] 

 

  • QUESTION FOR CONSIDERATION: Should Ontario expand the role that volunteers or other community members may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:

a)     For what types of decisions and in what types of circumstances should these individuals be authorized to act?

b)     Who should be responsible for recruiting, selecting and overseeing these individuals?

c)      What types of training or supports should be provided to these individuals?

d)     What types of oversight and monitoring should be put in place? Who should carry out this oversight and monitoring?

e)     What should be the responsibilities and liability of these individuals?

f)      What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?

 

3.     Creating a Role for Community Organizations

Another means of expanding the options for those who can act in a decision-making role is to permit non-profit community or advocacy organizations to take on this role. The German Betreur system briefly described above permits the Betreuungsverein to directly act for individuals requiring assistance with decision-making where individual volunteer can not be found, for example.

In Saskatchewan, The Powers of Attorney Act permits the appointment of corporations other than trust corporations, as attorneys under a power of attorney.[477] This provision was adopted in 2002, after the Law Reform Commission of Saskatchewan recommended that the appointment of corporate attorneys be permitted under the law, so that advocacy groups and “not-for-profit organizations dedicated to assisting vulnerable adults” will be able to act as attorneys.[478] As well, The Adult Guardianship and Co-decision-making Act permits the Minister to designate corporation, agencies or categories of these as eligible applicants for the role of substitute or co-decision-makers, and on occasion, non-governmental organizations such as the Saskatchewan Association for Community Living, have at times been appointed through this means.[479]

Ontario has some experience with the use of community organizations to make decision on behalf of others, as community organizations already can and do act as informal trustees for recipients of Ontario Disability Support Program payments. Section 12 of the Ontario Disability Support Program Act, 1997 (ODSPA) permits the Director to “appoint a person to act for” an ODSP recipient where

  • there is no guardian of property or trustee already appointed for the recipient; and
  • the Director is “satisfied that the recipient is using or is likely to use his or her income support in a way that is not for the benefit of a member of the benefit unit”.[480]

The same section provides that the Director may pay the recipient’s income support to her or his guardian or trustee should she or he have one, or to a person appointed by the Director to act on her or his behalf.[481]  In some ways the function of these informal trustees are analogous to the duties that may be undertaken by a guardian for property or a person acting under a POA for property, although it should be noted that these trustees are dealing only with one relatively limited income source, and that the nature of the ODSP program creates some opportunity for monitoring and reasonably timely corrective action should an informal trustee misuse funds. While concerns have been raised about various aspects of the ODSP informal trusteeship provisions, including insufficient oversight and a lack of effective recourse for individuals to challenge the appointment of a trustee, the LCO has heard that some community organizations are able to provide very good informal trusteeship services as part of a more holistic package of services that they provide to clients that they know well and regularly interact with.  It is also true, however, that community organizations may be reluctant to take on this role due to pressures on budgets or staff. 

Experience with the employment of community organizations does indicate that steps are necessary to carefully screen organizations for appropriateness, avoid conflicts of interest, and provide for accountability. In the extensive American Representative Payee program, which permits organizations to administer payments on behalf of social security benefit recipients, conflicts of interest have been identified where recipient organizations have included employers and operators of group and care homes who are providing food, shelter and services while controlling benefits.[482] The screening and reporting provisions set out in the Directives for the ODSP informal trustee program provide an example of how such concerns may be addressed.

 

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

 

4.     Recognizing Personal Support Networks

Another form of decision-making supports may be provided by personal support networks. These are, of course, already operating informally and flexibly. The experience of individuals with disabilities with the types of support that can be provided by these networks provides a foundation for the concept of supported decision-making, described at some length in the previous chapter. Bach and Kerzner discuss the important role that personal support networks have played for persons with disabilities in supporting choice, empowerment, inclusion in the community and preventing violence and abuse, commenting,

Research has found that intentional building of personal networks of families and friends to assist in ongoing individual planning, building connections to the broader community, and providing opportunities for inter-personal relationships and caring, contribute positively to individual health and well-being. Research has found that support networks address the social isolation of individuals, the major factor that leaves individuals with developmental disabilities vulnerable to violence and abuse in both institutional facilities and the community.[483]

An example of formalized personal support networks can be found in what are called in British Columbia “Microboards”. A Microboard is a small group of committed persons who join together with a person with a disability to create a non-profit society.[484] Microboards may provide a variety of personal support services for persons with disabilities, including the management of direct individualized funding to the individual with a disability. The key elements of a Microboard have been described as:

  1. An unencumbered focus on the identity, needs and express wishes of the person who is supported;
  2. Development and maintenance of an active, diverse and fully engaged citizen-based circle of support;
  3. Retaining all possible elements of control, especially including the role of employer-of-record.[485]

Membership of Microboards is based on close, personal, trusting relationships, and founded on the belief that all individuals have the capacity for self-determination and the commitment to respect that capacity. Members have a role in supporting the participation of the individual in the community.[486] Microboards may have different levels of formality, depending on the requirements in the jurisdiction in which they are operating and the needs they are intended to meet.  In British Columbia, Microboards have been explicitly recognized in government policy as eligible to receive funding for the purposes of the provision of direct individualized funded services.

The Office of the Public Advocate in the Australian state of Victoria has suggested that some version of formalized personal support networks could provide a mechanism for recognized supported decision-making, commenting, “An alternative form of supported decision-making is to establish the support network as an Incorporated Association. Under this arrangement, all the members of the network take responsibility” for decisions that have legal ramifications.[487]

 

  • QUESTION FOR CONSIDERATION: What role might personal support networks play in a reformed Ontario capacity, decision-making and guardianship system? How might this role be formalized in law?

 

D.    Improving Supports for Family Members and Friends

While the extent and nature of the responsibilities of an SDM will vary from situation to situation, to perform the role as envisioned by the statutes, SDMs may be required to:

  • Understand Ontario’s complex statutory scheme and its accompanying systems (for example, related to capacity assessment) sufficiently to be able to navigate them, both on their own behalf and on behalf of the person they represent;
  • Understand their role, responsibilities and accountability under the statute;
  • Understand, at an everyday and practical level, the concept of capacity and the principle of autonomy and independence;
  • Have the skills, as well as the emotional resources, to communicate well with the person they represent, support his or her participation in the decision-making process and respect his or her autonomy and capacity to the widest extent possible, and to work positively and cooperatively with others close to the represented person;
  • Have the skills to research options, locate resources, and navigate complex legal or social systems on behalf of the individual, often in a context of limited or rationed resources, and sometimes related to financial or personal issues of considerable complexity;
  • Maintain a trusting personal relationship with the individual, so as to understand his or her circumstances, needs, values and preferences and take these into account in carrying out the role;
  • Have the time and ability to carry out the decisions that have been made – for example, overseeing the purchase or sale of property, locating and gaining admission to an appropriate residential setting; hiring and overseeing necessary support or professional staff, and similar tasks; and
  • Have the psychological and emotional resources to manage the responsibility for sometimes very difficult or ethically challenging decisions.

As was noted at the outset of this Chapter, the role that family and friends play as substitute decision-makers is often extremely challenging, requiring considerable commitment and skill as well as the investment of significant emotional and practical resources. Recognizing the importance of the role and the vulnerability of the individuals for whom SDMs act, the legislation sets out stringent requirements and standards for the activities of SDMs.        

In many cases, all of this takes place in and is exacerbated by a context of limited resources for persons with disabilities and older persons.

There are many organizations and professionals that make significant efforts to provide Information and supports either to SDMs, or to informal caregivers who often act as SDMs, including legal clinics, advocacy organizations, government agencies and ministries such as the PGT and the Seniors Secretariat and others. However, these supports are fragmented and most frequently rely on SDMs to seek them out. Options for increasing access to information and education, navigational assistance and advocacy services are considered elsewhere in this Paper: it is important to consider how reforms to these or other aspects of Ontario’s legal capacity and guardianship law may strengthen the ability of families and friends to ensure that the vision underlying the legislation is implemented in a meaningful way.

 

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

 

E.     The Role of the Public Guardian and Trustee

The PGT plays a number of essential roles in Ontario’s legal capacity, decision-making and guardianship system, with its role as SDM among its most prominent. The section below briefly addresses some suggestions for reform to this role of the PGT.

Last resort SDM: There is a broad acknowledgement that a decision-maker of last resort is required in any legal capacity, decision-making and guardianship system: currently the PGT performs this vital role. Both a desire to ensure that this role is truly undertaken as a last resort, and an anticipation of growing pressures on this role due to social and demographic change suggest the importance of considering whether there are alternative sources of SDMs that may appropriately and effectively address some of the need. Realistically, it is likely that the government will need to continue providing some last resort services, but the suggestions regarding professional fiduciaries, volunteers and community agencies point to some potential means of expanding the options available to individuals who need assistance with decision-making.  As well, the alternative forms of decision-making discussed in Part Three, Chapter I and the restricted forms of guardianship considered in Part Three, Chapter III may also assist in ensuring that the PGT is required to act only when it is truly needed.

Statutory guardianship: The role of the PGT as statutory guardian is somewhat more controversial than its last resort role. The automatic appointment of the PGT as guardian for property in these circumstances (subject to later applications for replacement) serves to ensure that a decision-maker is able to step in immediately upon a declaration of incapacity to deal with urgent decisions related to property, and that the individual does not experience significant disadvantage or difficulties due to a “gap” period when no person is authorized to make decisions. The replacement process is intended to be a relatively simple and inexpensive means for family members to take up this responsibility, if they so wish, within a reasonable period of time. Nonetheless, it is true that this role for the PGT fits uneasily with the often expressed belief that guardianship by the state should be a “last resort”, with substitute decision-making through close relationships occurring in all other circumstances.  

Statutory guardianship is best understood in the larger context of issues around appointment processes, something considered at length in the following chapter. Court-based hearings can provide transparency and careful, objective scrutiny of appointments, important values where rights are at stake. However, they are also perceived as relatively inaccessible due to costs and complexity: most modern systems do not rely entirely on court hearings for guardianship-type appointments. Statutory guardianships provide one alternative pathway to court appointments, but there are also other ways to meet this need: not all jurisdictions have a process analogous to statutory guardianship. Administrative processes, such as Alberta’s “desk applications”, described in the next Chapter, are one approach. Tribunal systems for appointments, such as the CCB currently provides for representatives under the HCCA, and as are common in Australia, provide another avenue for relatively rapid and low-cost appointment processes.

Oversight for the PGT’s role as SDM: As was briefly described above, the work of the PGT is subject to a number of oversight mechanisms, including an internal complaints procedure, cthe standard oversight of the courts with respect to guardians, complaints to the Ombudsman, and various auditing processes. ARCH Disability Law Centre, in their paper, Decisions, Decisions, Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship, suggests that while the PGT has an internal complaints system to address concerns about the ways in which it exercises its function as a decision-maker, an independent “Monitoring and Advocacy Office” which could receive and resolve complaints about the activities of substitute decision-makers, including the PGT, would better address the needs of persons with disabilities, including the inevitable power imbalance between the PGT and its clients.[488]

 

  • QUESTION FOR CONSIDERATION: Are reforms required to strengthen oversight and monitoring of the role of the Public Guardian and Trustee as substitute decision-maker? If so, what reforms would be  most appropriate and effective?

 

F.     Questions for Consideration

  1. Should Ontario expand the role that specialized professionals may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:
    a)     For what types of decisions should these professionals be authorized to act?
    b)     What types of training, licensing or educational requirements should be required of these professionals?
    c)      What types of oversight and monitoring should be put in place for these professionals? Who should carry out this oversight and monitoring?
    d)     What should be the responsibilities and liability of these professionals?
    e)     What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?
  2. Should Ontario expand the role that volunteers or other community members may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:
    a)     For what types of decisions and in what types of circumstances should these individuals be authorized to act?
    b)     Who should be responsible for recruiting, selecting and overseeing these individuals?
    c)      What types of training or supports should be provided to these individuals?
    d)     What types of oversight and monitoring should be put in place? Who should carry out this oversight and monitoring?
    e)     What should be the responsibilities and liability of these individuals?
    f)      What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?
  3. What role might community organizations play for individuals who have been determined to lack legal capacity for a particular type of decision? If community agencies were to act as substitute decision-makers, what lessons could be learned from the experiences with informal trusteeships, or with the use of community agencies in this role in other jurisdictions?
  4. What role might personal support networks play in a reformed Ontario capacity, decision-making and guardianship system? How might this role be formalized in law?
  5. Where family or friends are acting for a person who has been determined to lack capacity to make a particular decision, are there supports that would enable them to more effectively fulfil this role?
  6. Are reforms required to strengthen oversight and monitoring of the role of the Public Guardian and Trustee as substitute decision-maker? If so, what specific reforms would be most appropriate and effective?

 

 

 

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