This Discussion Paper has previously examined how decisions may be made within legal capacity and decision-making laws, and who may participate in the decision-making process. This Chapter will focus on the process by which individuals are appointed to and removed from their roles in the decision-making process.
Any form of appointments and exit process must balance a number of goals, some of which may be in tension with the others. These include the following:
- Accessibility: can those who need to enter into a decision-making arrangement or end one access the process with reasonable ease? This involves issues of cost, complexity, cultural sensitivity and disability accessibility. Considerations of accessibility are important in any legal process but take on extra resonance here, where the majority of those affected are persons with some kind of disability, many will encounter the law at a time of vulnerability and the law affects a broad cross-section of the population, many of whom have little experience or comfort with it.
- Efficiency: can the process be completed within a reasonable period of time, and without unnecessarily burdening available resources? Issues of timing will often be of particular importance in this area, because of concerns about fundamental rights or the security of those involved.
- Flexibility: as has been noted elsewhere in this Paper, legal capacity frequently fluctuates. Some people will develop greater decision-making abilities over time as they learn and acquire access to social resources, others will experience declines in their decision-making abilities, and others will cycle in and out of legal capacity. It is therefore important that processes be sufficiently responsive and flexible that those who actually have legal capacity do not find themselves under substitute decision-making, and those who require assistance are able to access it in a timely manner.
- Choice: Given the nature of substitute decision-making, it is important to provide individuals with choice about their substitute decision-maker (SDM), wherever possible. This not only respects the dignity and autonomy of the individual in question, but may improve the quality of appointments because individuals often have the best knowledge of who has the understanding and commitment take their values and interests into account. One aspect of choice may be the ability to plan ahead, and to make and communicate decisions about future contingencies.
- Susceptibility to scrutiny/preservation of privacy: concerns about abuse and misuse of substitute decision-making powers are a recurring theme throughout this area of the law, and the susceptibility of the appointment to scrutiny may be one means of preventing abuse. On the other hand, appointment or removal of an SDM will often involve highly sensitive and personal information, and individual privacy interests may dictate that these processes are placed in the public view only where necessary.
- Transparency and accountability: transparency and accountability in appointment processes can assist in preventing and identifying abuse of substitute decision-making powers, and where public processes are in issue can help to ensure that discretion is exercised appropriately and responsibly. However, these goals must be balanced against the natural desire of individuals to preserve the privacy of the personal details of their lives.
- Responsiveness to context: The relative importance of these goals and the most appropriate means of achieving them will depend on the particular context for the processes. The type of process that is appropriate and effective in the healthcare context may differ from that best suited for decisions dealing with property; a process that works well for single decisions or those that must be made under time pressure will differ from that appropriate for longer-term situations.
On this point, it should be noted that the focus of this Chapter will be on Ontario’s existing substitute decision-making model; however, many of the considerations will also be appropriate to take into account should Ontario implement supported decision-making.
As the LCO’s Frameworks emphasize, the process by which substantive rights and benefits are accessed is equally important to those substantive issues. The above list of goals for appointment and exit processes highlights their connection with the Framework principles. Not only are effective and appropriate processes vital for the ability of persons falling within this area of the law to achieve and preserve their dignity, autonomy, participation and security/safety, the processes themselves must reflect these principles. For example, a lack of accessibility in the appointments process will undermine the principle of respect for diversity and individuality, and a failure to take into account the choice of an individual regarding the identity of a SDM will impinge on autonomy.
Ontario’s law employs three means of identifying substitute decision-makers:
- Personal appointments, in which the individual independently identifies his or her substitute decision-maker (SDM). This takes place through a power of attorney (POA) for property or for personal care.
- Public appointments, where a court, tribunal or administrative body appoints the SDM. This takes the form of statutory or court-appointed guardianships under the Substitute Decisions Act (SDA), and representatives appointed by the Consent and Capacity Board (CCB) under the Health Care Consent Act (HCCA).
- Automatic appointments under the HCCA, where SDMS are appointed through a hierarchical statutory list.
The LCO’s preliminary consultations identified concerns mainly with respect to the appointment of attorneys under a POA and of guardians. Concerns about automatic appointments under the HCCA focussed mainly on problems of implementation arising out of widespread misunderstandings of the hierarchical list. This Chapter will therefore focus on personal and public appointments, rather than on automatic appointments. However, stakeholders are encouraged to bring significant concerns regarding automatic appointments to the attention of the LCO as part of the public consultation process.
- QUESTION FOR CONSIDERATION: Are there concerns regarding the appointments process for substitute decision-makers under the Health Care Consent Act that should be addressed in reforming this area of the law?
B. Personal Appointment Processes
1. Ontario’s Power of Attorney Regime
In Ontario, personal appointments are made through continuing or springing POAs for property or personal care. A continuing POA is one that takes effect immediately, and endures into the grantor’s incapacity, while a springing POA takes effect only upon the grantor’s incapacity. POAs are extremely powerful instruments. A POA for property, for example, enables the holder to do anything that the grantor could do, except to make a will. A person exercising a POA for property can make or cash-out investments, buy or sell property (including the grantor’s home), make purchases both large and small, and transfer financial assets between accounts. The holder of a POA for personal care (POAPC) has considerable control over the most intimate details of daily life, including where the grantor lives, what kind of health care he or she receives, as well as decisions about hygiene, nutrition and safety. This flexibility allows the attorney to act effectively on behalf of the grantor. It also gives the attorney considerable control over the well-being of the grantor. That is, the POA can be exercised either for good or for ill; the quality of the attorney will have a considerable impact on the life of the grantor. Notably, once an individual has lost legal capacity, she or he may also lose the ability to revoke the POA.
Historically, personal appointments as a means of addressing loss of legal capacity are a relative novelty. Until relatively recently, public appointments were the only option for the identification of substitute decision-makers. The development of more flexible and accessible arrangements, such as hierarchical lists for specific, one-time decisions (for example, health care consents) and continuing or springing POAs has been an important development in this area of the law.
Personal appointments tend to differ in a number of key respects from public mechanisms for appointment of substitute decision-makers or supporters:
- Personal appointments tend to be more accessible. There is inevitably a certain level of cost and time associated with a public appointment process, particularly where a court or tribunal is involved and therefore legal representation is required. Personal appointments may involve minimal or no costs, depending on statutory requirements for their creation.
- Personal appointments tend to be more flexible than public appointment processes. It is relatively simple for individuals to create or revoke powers of attorney, while the guardianship process tends to be more complex and time-consuming, making it more difficult to either enter into or exit from.
- Personal appointments may allow for forward planning. For example, continuing and springing powers of attorney may allow individuals to select ahead of time who they would like to act as a substitute decision-maker should they lose legal capacity. Public processes such as guardianship proceedings aim to respond to circumstances at the time of application.
- Public appointments processes by their nature tend to allow for greater scrutiny of the individual appointed, and create the opportunity for greater monitoring of the activities of that individual. Personal appointment processes rely on the good judgment of the individual to know who is best suited to take her or his interests and values into account. For the most part monitoring of the exercise of powers granted via personal appointments relies on informal mechanisms and enforcement will arise from individual complaints rather than proactive mechanisms.
It is important not to confuse the mechanism for appointment with who may be appointed. Public appointment mechanisms may appoint private individuals, such as family or friends, to act for the individual. As was highlighted in the previous Chapter, personal appointment mechanisms may, in very limited circumstances, result in the appointment of the Public Guardian and Trustee (PGT). Most often, those designated under POAs are those with whom the grantor has an ongoing close personal relationship of trust, such as family members or close friends. These are the individuals who know the grantor 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.
Ontario has a comprehensive scheme for powers of attorney, which sets out the requirements for creating them, the roles and responsibilities of those acting under them, and some mechanisms for addressing concerns about improper usage. This is set out in the SDA. There are two types of POAs, those for the management of property, and those related to personal care. The requirements for the two differ in certain key respects, and therefore they are described separately below.
Power of Attorneys for Property
Scope of the power: A continuing POA for property may authorize the attorney to do anything on the grantor’s behalf, with respect to property, that the individual granting the POA could do if capable, except make a will. The person granting the POA must be at least 18 years old.[494