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.
Capacity to Give and Revoke a Continuing Power of Attorney for Property: As was discussed in Part Two, Chapter I, the SDA sets the standard for capacity to create a continuing POA for property. That standard is a high one. For the POA to be valid, the grantor must
a) know what kind of property he or she has and its approximate value;
b) be aware of obligations owed to his or her dependants;
c) know that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
d) know that the attorney must account for his or her dealings with the person’s property;
e) know that he or she may, if capable, revoke the continuing power of attorney;
f) appreciate that unless the attorney manages the property prudently its value may decline; and
g) appreciate the possibility that the attorney could misuse the authority given to him or her.
It is not necessary that the person creating the POA be at that time capable of managing property. Any person who is capable of creating a continuing POA is also capable of revoking it.
Who May Act as an Attorney: To act as an attorney under a POA for property, an individual must be at least 18 years old. An individual may name two or more individuals as attorneys, who must act jointly unless the POA specifies otherwise. If these attorneys are acting jointly, and one dies, resigns or becomes incapable, the other(s) may continue to act under the POA. The PGT may act as attorney for property, but only if consent is obtained prior to the execution of the POA.
The SDA makes provision for the resignation of an attorney, or the termination of the POA through death or incapacity of the attorney, appointment of a guardian of property, execution of a new POA for property, revocation of the POA or the death of the grantor.
Creating the POA: There is no required form for a continuing POA for property, although individuals may use the form that has been made available through the Ministry of the Attorney General. For a POA for property to continue past the grantor’s legal incapacity to manage property, the document must state that it is a continuing power of attorney, or express the intention that the powers it grants may be exercised when the individual granting the POA has become incapable of managing property. Two witnesses to the execution of the POA are required. The SDA lists a number of types of individuals excluded from acting as witnesses, including persons under age 18, spouses or partners of either the attorney or the grantor, the attorney, a child of the grantor, or a person who has a guardian for property or of the person.
Coming into Effect of the POA: A continuing POA for property may come into effect at the time it is created. Alternatively, the grantor may specify that it comes into effect at the point where the grantor becomes incapable of managing property. In the latter case, the grantor may specify a method of assessing capacity; if such a method is not specified, the POA may be triggered by an assessment by a Capacity Assessor under the SDA, or an assessment of capacity to manage property under the Mental Health Act.
Powers of Attorney for Personal Care
Scope of the POA: A POA for personal care (POAPC) may deal with issues including those related to health care, nutrition, shelter, clothing, hygiene and safety. The POAPC may include conditions or restrictions for its use, or instructions with respect to the decisions that the attorney is authorized to make. A grantor can, in a POAPC, in carefully limited circumstances, authorize the use of force by the attorney or other persons under the direction of the attorney.
Capacity to Give a Power of Attorney for Personal Care: To create a power of attorney for personal care, one must be at least 16 years old. As noted in Part Two, Chapter I, the test for capacity to create a POAPC is the easiest to meet of all of the capacity tests in the SDA and HCCA. To create a POAPC, the individual must have the ability to understand whether the proposed attorney has a genuine concern for her or his welfare, and appreciates that they may need that person to make decisions for them. The individual need not have the ability to manage their own personal care at the time of the creation of the POAPC in order to have the capacity to create that document. Any instructions in the POAPC with respect to particular decisions will be valid if, at the time of the execution of the POAPC, the individual had the capacity to make that decision. Any person who has the capacity to create a POAPC also has the capacity to revoke it.
Creating the POAPC: As with a POA for property, a POAPC need not be in any particular form, but may employ the form made available for public use by the Ministry of the Attorney General. Execution of the POAPC must take place in the presence of the two witnesses. The list of excluded witnesses is the same as that for POAs for property.
Coming into Effect of the POAPC: It is important to note that POAPC only come into effect upon the incapacity of the grantor with respect to personal care decisions. Decisions for personal care cannot be made on behalf of others who are capable of making those decisions. A POAPC comes into effect for decisions that fall within the HCCA where the individual is determined to be legally incapable within the meaning of that Act, and an attorney is authorized to make the necessary decision. In other circumstances, the POAPC comes into effect where the attorney has reasonable grounds to believe that the person is legally incapable of making the decision, meaning that the individual is not able to understand information related to the issue (e.g., hygiene, shelter) or is not able to appreciate the reasonably foreseeable consequences of the decision or lack of decision.
The grantor may, in the POAPAC, require that incapacity for non-HCCA decisions be confirmed. The grantor may specify the method of confirmation; if not, legal incapacity must be determined by a Capacity Assessor.
Who May Act as an Attorney: To act as an attorney for personal care, a person must be at least 16 years old. The PGT may act as an attorney for personal care if consent is obtained prior to the execution of the POA. Persons who provide health care, residential, social, training or support services to the grantor for compensation may not act as attorneys, unless they are the spouse, partner or relative of the grantor. Two or more individuals may be named as attorneys; if so, they must act jointly unless the POAPC specifies otherwise. If these attorneys are acting jointly, and one dies, resigns or becomes incapable, the other(s) may continue to act under the POA. The SDA makes provision for the resignation of an attorney, or the termination of the POA through death or incapacity of the attorney, appointment of a guardian for personal care, execution of a new POAPC, revocation of the POA or the death of the grantor.
2. Concerns and Critiques
The use of continuing and springing POAs has generally been considered a very positive element of Ontario’s legislative scheme, for the reasons noted above. POAs allow individuals to plan ahead, to choose for themselves who will assist them should they become legally incapable, and to do so in a way that is flexible and accessible.
However, stakeholders have identified major concerns regarding abuse of powers of attorney, particularly powers of attorney for property. The private nature of these appointments does, by its nature, tend to reduce scrutiny and increase the risk that abuse may be carried out undetected. This is not to say that persons appointed through a public process (guardianship) never abuse their powers: as is discussed in Part Four, Chapter I, abuse is a concern with all forms of appointments. However, there are risks that are peculiar to or exacerbated for private arrangements. The challenge is to balance the concerns regarding abuse with the importance of ensuring the continued accessibility of these instruments. As was stated by the Alberta Law Reform Institute:
It is necessary to recognize that, short of a comprehensive and completely state-administered and state-guaranteed system of administration of the property of incapacitated persons, there is no way to give a 100% guarantee that no person who administers the affairs of an incapacitated person, including an attorney appointed by an EPA [enduring power of attorney], will abuse the powers given to that person. Reasonable safeguards against abuse should be provided, but piling safeguard upon safeguard in the hope of marginally reducing the number of cases of abuse will reduce or destroy the utility of a useful device that is highly beneficial in the great majority of the cases in which it is utilized.
The concern of many of those with whom the LCO spoke during the preliminary consultation was that, in fact, frequently neither grantors nor attorneys sufficiently grasp the nature of these instruments and the duties of attorneys, the gravity of the responsibilities associated with them or the risks associated with their use. Most opportunities for increasing grantor understanding occur at the stage when the instrument is created, both because this is a crucial juncture (for example, the person who created a power of attorney may later lose legal capacity and be unable to revoke it) and because this is one of the few moments where the law can relatively easily impose requirements for information and understanding.
Part Four, Chapter I will consider a number of measures that may assist in identifying and redressing abuse through POAs. For the purposes of this Chapter, it is sufficient to observe that the processes for creating POAs must balance the fundamental purpose of these instruments to enable forward planning and to empower individuals to chose their own SDMs, with the need to ensure that grantors sufficiently understand the nature of the powers that they are granting and the risks associated with the them. The effectiveness of POAs depends on the ability of grantors to make an informed decision as to who is best equipped in terms of skills, availability, commitment and ethics to carry out these responsibilities. A grantor who does not sufficiently understand the effect of a POA is more likely to choose an attorney for reasons that have little to do with the nature of the responsibility involved.
A second major concern related to POAs is the difficulty faced by third parties in locating and validating them. Healthcare and other social service providers may be required to provide services and obtain consent in emergency or time-sensitive situations, and may not be able to easily determine whether a POA that is relevant to the context has been completed. It is even more difficult for third parties to determine whether a POA is valid – for example, whether it was completed at a time when the individual had legal capacity to do so, or whether it has since been revoked or superseded. This can pose significant challenges for third parties, as well as for the effective implementation of the law. Third parties may rely on invalid appointments, over-apply limited appointments, or failure to respect valid appointments. Service providers have expressed frustrations to the LCO about the current state of affairs, but have adopted widely varying approaches to attempt to manage the problem. Some financial service providers encourage clients to complete special purpose banking powers of attorney to address some of these issues, a practice that has raised concerns because of the potentially significant effect that completing a banking POA may have on the effectiveness of pre-existing POAs.
Finally, practical issues have been raised regarding the coming into effect of POAs for property. It is generally the intent of grantors that POAs not come into effect until the grantor no longer has legal capacity to manage property. Under the SDA, grantors may, as highlighted above, create “springing” POAs that only take effect upon legal incapacity. However, there may be practical problems regarding the assessment of capacity for this purpose. Some POAs may provide for an assessment of capacity by a family doctor: however, most doctors receive little training on assessing capacity, and this is not necessarily a task that doctors will be willing or able to undertake. Alternatively, the POA may specify that the assessment must be undertaken by a designated Capacity Assessor under the SDA; however, as described in Part Two, Chapter II, access to these assessors may be constrained by cost, location or availability, and the assessment may only be carried out with the assent of the person assessed. As an added wrinkle, however capacity is assessed for the purpose of “springing” a POA for property, third parties such as financial institutions may be reluctant to act on such a POA without documentation that demonstrates that the POA has indeed been triggered. These problems may limit the useability of this form of POA. As a result, many individuals instead use continuing POAs which come into effect immediately, but attempt to take steps to ensure that the POA is not used before it is required, for example by giving it to a third party for safekeeping. This approach obviously carries its own risks with it. 
- QUESTION FOR CONSIDERATION: What practical reforms to law, policy or practice would be most effective in providing grantors of powers of attorney for property with more effective means of appropriately triggering the operation of these documents?
3. Options for Reform
Jurisdictions vary in the extent and onerousness of their requirements for the creation of a POA or other personal appointment. Generally, there is perceived to be a trade-off at this stage between promoting the accessibility of these instruments (and thereby enhancing the ability of individuals to plan forward and to chose their own arrangements), and ensuring that those creating these powerful documents are aware of their effects and of their attendant risks, and are not being coerced or mislead into creating them. As described above, Ontario already has a number of safeguards incorporated into its requirements for creation of a power of attorney, including requirements for two independent witnesses, and a statement of intent for the creation of a continuing power of attorney, as well as barring certain individuals who may have a clear opportunity for coercion or undue influence from acting as attorneys for personal care. Some other potential safeguards are briefly outlined below. Several of them are focussed on ensuring that the individual creating the appointment understands the risks as well as the benefits of the appointment; others are focussed on ensuring that coercion has not been applied to the person making the appointment.
The law may set a high bar for the legal capacity to create a personal appointment in order to ensure that the associated risks have been well understood and taken into account in making the appointment. Of course, setting the bar too high will unnecessarily deprive individuals of the benefits associated with these appointments. This issue in many ways goes to the heart of the debates about law reform in this area, as is clear from the preceding chapters.
The tradeoff between accessibility and prevention of abuse is clear on this issue; the two may and have been balanced in different ways. For example, recognizing that the nature of the powers and the risks associated with administration of property are different from those associated with personal care, Ontario has made the capacity requirements for POA for property considerably more rigorous than those for POAPC. The test for capacity for a POAPC is set at a level that is relatively easy to meet; the test for capacity for a POA for property is stringent compared to that of many other jurisdictions. One might also balance a more accessible capacity requirement with more rigorous mechanisms for monitoring and scrutiny during the operation of the personal appointment.
Requirement to seek legal advice
Another mechanism for ensuring that those making a personal appointment understand the risks of such an undertaking is to require that they obtain legal advice in order to create a valid document. This ensures that these individuals obtain accurate and appropriate information about the impact of a continuing or springing POA, and can help ensure that the document is valid and fully reflects the wishes of the grantor. Yukon’s Enduring Power of Attorney Act requires that an enduring POA be accompanied by a certificate of legal advice, attesting that the grantor had the capacity to create the document and voluntarily signed it.
The downside of these types of requirements is that, except for those few individuals who have access to legal aid, there is a cost to obtaining legal advice. This may be a deterrent, or even an absolute barrier to the creation of these appointments. Low income individuals might well be effectively barred from the option to make their own personal appointments, unless special measures were adopted to provide free or very low-cost access to legal advice for personal appointments for these individuals. For this reason, the Western Canada Law Reform Agencies and the Law Reform Commission of Nova Scotia each, in their reports on powers of attorney, ultimately rejected proposals for mandatory legal advice.
The Alberta Law Reform Institute (ALRI) does not recommend requiring legal advice for the creation of a valid enduring POA, but instead recommends that the grantor must either appear before a lawyer, who must certify that the requirements for a valid EPA have been met, or one of the witnesses must sign an affidavit to the same effect – a regime similar to that currently in effect in Saskatchewan. ALRI believes that a lawyer’s certificate would provide better quality control and would provide an opportunity for useful legal advice, but the second option would provide the grantor with a less formal choice and maintains the accessibility of the instrument.
Considerable information is available for individuals in Ontario who are considering granting a power of attorney, or are acting under one. The Ministry of the Attorney General and the PGT provide information on the internet, and the optional POA forms available through the government website include a considerable amount of useful information and advice. Advocacy and service organizations have created documents outlining key characteristics of powers of attorney, and service providers often have available simplified or plain language publications specific to their users. Significant public education about POAs has been undertaken by the PGT and by organizations like Elder Abuse Ontario and the Advocacy Centre for the Elderly.
Information about POAs is relatively accessible for those who seek it out. However, this information is not mandatory. Many of those affected by these laws will not seek it out, whether because they “do not know what they do not know”, because they do not know where to look for information, because there are informational barriers (such as language, literacy or a learning-related disability) or for other reasons.
Some jurisdictions have a mandatory form, which must be used in order to ensure the validity of the instrument. One advantage of such a mandatory form is that it may include information about the requirements, implications and risks of a power of attorney, ensuring that grantors (and attorneys) have access to this information. The state of Queensland in Australia is one such jurisdiction. In its review of the mandatory from, the Queensland Law Reform Commission noted concerns that the inclusion of extensive information on the mandatory form made it long and cumbersome, and considered separating the information out into a separate booklet or kit. Ultimately, it recommended that the forms be re-drafted, but that they continue to include the information on the form itself, as well as in a perhaps expanded stand-alone booklet, reflecting the perceived importance of ensuring that grantors have access to the necessary information and warnings. As one stakeholder commented to the QLRC,
In many ways, this helps to ensure that adults who are signing the form have a better opportunity to be properly informed about the pros and cons of signing such an important document. It also means that adults are less vulnerable to being tricked into signing a form they do not understand, or which they think is to be used for some other purpose. The presence of the ‘fine print’ throughout the form itself is a useful warning device.
- QUESTION FOR CONSIDERATION: Are there practical reforms that should be made to the requirements or options for the creation of a power of attorney to improve the understanding or grantors or attorneys or both of the risks, benefits and responsibilities associated with these powerful documents?
Registry systems are frequently suggested as a means of addressing either or both concerns about POAs – verification and validation, and the prevention and identification of abuse. The Grey Flag campaign states,
A registry of POAs is the first step in repairing the broken system. Currently, there is no way for concerned relatives to confirm if a POA truly has the power they claim or what the POA document says without going to court. As soon as someone claims to be POA, it should be able to be checked in a government registry by agencies, health care professionals, banks, and family and friends of the affected person. Without it, the life savings and the standards of living of the elderly are put at risk.
Registration to some extent moves POAs into a more public realm, where interested parties can identify them, review their use and determine whether an attorney is acting in accordance with the terms of the instrument. In its 1972 Report, the Ontario Law Reform Commission recommended the creation of a registry for powers of attorney, noting the benefit of putting the “power of attorney on public record, and more importantly publicly identify[ing] the attorney. This not only protects the attorney, but also enables interested parties to inform themselves of the existence of the power.” This recommendation was not implemented.
Several Canadian jurisdictions have voluntary registries, generally with the Public Trustee. These include Manitoba, Nunavut, and the Northwest Territories. British Columbia does not have a statutory registry; however, it does have a privately-run registry known as the Nidus E-Registry. Nidus is run by a charitable organization, the Nidus Personal Planning Resource Centre. As the Nidus Registry is not statutorily authorized, it is dependent on the consent of all of those whom wish to register their EPAs in the Registry. It costs $25 to register a document. Thereafter designated individuals and approved service providers (i.e. hospitals) have access, although it should be noted that service providers must pay a fee for this access.
There are mandatory registry systems in a number of jurisdictions, including Scotland, Ireland, some Australian states and Hong Kong. The most comprehensive mandatory registry system appears to be that of England and Wales. Under the Mental Capacity Act 2005, a lasting power of attorney is not valid unless it is registered with the Public Guardian. The registration includes, not just information about the parties to the POA, but the instrument itself. Registration may take place either at the time of the creation of the instrument, or at the time when the grantor loses capacity. Once registration is accepted, all named parties (including the grantor) are officially notified by the Public Guardian that the instrument has been registered and is effective, or will be upon incapacity of the grantor. Any person can apply to search the register for a modest fee, and can receive basic information about the appointment, including the date of birth of the grantor; the names of any deputies or attorneys; the date the instrument was made, registered, revoked or cancelled (if applicable); the type of instrument; and whether there are conditions or restrictions on the instrument (but not the substance of those conditions or restrictions). For further information, a special application must be submitted, with reasons for the request.
The Victorian Law Reform Commission has recently recommended a comprehensive online registry scheme, noting that this proposal received very strong support from stakeholders and the public, both as supporting the effective implementation of POAs, and as reducing risks of abuse. The register would include associated instruments, such as advance health directives and supported decision-making appointments, as well as powers of attorney and guardianships. Registration would be mandatory, but the Victorian Civil and Administrative Tribunal would have corrective powers in appropriate cases of non-registration. Only authorized persons and organizations would have access to the register; grantors and attorneys would be able to view information relevant to their own instrument.
Private members bills to create a registry system have been introduced in the Ontario legislature, most recently in February 2013. Bill 9, the Protection of Vulnerable and Elderly People from Abuse Act, would have created a public register of all continuing powers of attorney for both property and personal care, to be maintained by the PGT. Information included in the registry would include contact information for the grantor and the grantor’s attorney, the date that the attorney’s authority took effect and any restrictions on that authority, and the names of persons or groups of persons whom the grantor has identified in the power of attorney as persons to whom the PGT may disclose information. Bill 9 did not proceed past first reading. A very similar Bill was put forward unsuccessfully in 2011.
Critiques of Bill 9 and its 2011 predecessor focussed on preserving the privacy of those who create powers of attorney, and on the accessibility of powers of attorney. One MPP commented,
If, as this bill proposes, I’m required, if I give someone a power of attorney, to call up a bureaucrat, the public trustee’s office, and say, “I’ve asked so-and-so to be my attorney,” and I’ve got to file various papers and, not only that, the public trustee has to maintain a public registry where everybody is listed, who has power of attorney and so on, that is an invasion of my privacy. I’m quite capable of taking that decision at the same time I create my power of attorney, because, by definition, I can only create a power of attorney when I’m fully capable. So I know who I want to know who has my power of attorney.
Another MPP commented on the 2011 Bill that,
I think it’s very complex; it’s not as easy as you think. We’re going to create more layers of bureaucracy. We’re going to make it more difficult for seniors to act alone, independently, if we force them to register the power of attorney. According to all the professionals in this field, they said to me-and I read many different analyses about this bill-that it will make it more difficult for seniors to act.
Certainly, the privacy issues are complex. Designing a registry system that would be in compliance with both the Personal Health Information Protection Act and the Personal Information and Protection of Electronic Documents Act would be challenging, particularly if the registry was mandatory or contained a copy of the instrument itself.
- QUESTION FOR CONSIDERATION: Would a registry system for powers of attorney improve the ability to verify and validate these documents, or to prevent and identify abuse? What would be the benefits and disadvantages of a registry system?
- QUESTION FOR CONSIDERATION: If a registry system for powers of attorney should be created,
a) Should it be voluntary or mandatory?
b) What information should be maintained in the registry?
c) Who should have access to the information in the registry and under what circumstances?
d) Who should operate the registry?
e) What would be required to ensure its compliance with privacy legislation?
Requirement for multiple attorneys
In some jurisdictions, the grantor is required to name multiple attorneys. This may provide some monitoring for potential abusers. Realistically, however, many individuals have difficulty finding even one person who is appropriate, capable and willing to act as an attorney; to require multiple attorneys may not be feasible. ALRI notes that this would be a cumbersome arrangement, and that likely one attorney would delegate most of the power to the other, and on this basis declined to make such a recommendation. Ontario provides the option for individual to appoint multiple attorneys, but does not require it.
Duty to Account, Notices of Attorney Acting and Monitors
A number of jurisdictions have adopted or recommended measures that either encourage or require individuals creating POAs to identify in those documents persons who will provide monitoring or other types of oversight for the attorney.
Manitoba, following recommendations of the Manitoba Law Reform Commission, created an obligation on attorneys to provide an accounting as to property matters upon demand by any person named in the power of attorney as a recipient of such an accounting or, where no person is named or the named person is deceased or mentally incompetent, to the nearest relative (with some exceptions). The person receiving the accounting does not have a duty or liability in respect of the accounting. Saskatchewan has implemented a system similar to this; the system is not mandatory for attorneys that are not being compensated for their activities, and is triggered only upon a request. The Northwest Territories and Nunavut also make provision for these informal accountings to recipients named in the power of attorney document.
In its report, the Alberta Law Reform Institute (ALRI) combined a recommendation for identification of individuals to receive reports with one requiring attorneys to provide notice to certain individuals or organizations upon commencing their responsibilities. ALRI’s Report, Enduring Powers of Attorney: Safeguards Against Abuse, recommends that attorneys must, before or within 30 days of exercising an enduring power of attorney, give notices of their intention to act to persons designated in the power of attorney and to specified family members. These persons would thereafter be entitled to request, at reasonable intervals and at their own expense, an opportunity to inspect the lists and records that the law requires the attorney to maintain. This is intended to create a mechanism for ongoing supervision of the attorney. It removes the necessity for interested persons who are concerned about the grantor to make an application to court in order to review the conduct of the grantor’s affairs by the attorney. ALRI saw this as a more practical alternative than assigning a responsibility to a public official, such as the Public Trustee, to review the accounts of an attorney on an annual basis, or a requirement to pass accounts with the court. A very similar recommendation was adopted in the Western Canada Law Reform Agencies’ 2008 Report on Enduring Powers of Attorney: Areas for Reform.
The New Zealand Law Commission, in dismissing a recommendation that near relatives be informed both of the grant of the POA and of the point at which it came into effect, has argued that grantors are sometimes estranged from their near relatives, and may not wish that their relatives be informed of their affairs. That is, where grantors have not specified a person to receive the notice (and the accounts) in their power of attorney, there may be concerns about violation of the privacy of the grantor. The Queensland Law Reform Commission expressed concerns about the privacy implications of a notification scheme. They also commented that it was a restriction on the autonomy of the grantor, who could voluntarily include such a requirement in the power of attorney if so desired.
The British Columbia Representation Agreements Act creates a much more comprehensive system of informal supervision, through the institution of “monitors”. The law requires that any “adult who makes a representation agreement… must name as monitor in that agreement an individual who… is at least 19 years of age and [is] willing and able to perform the duties and powers of a monitor.” A monitor may resign, but if they do (or become unable to discharge their duties), the representative’s authority is suspended until a new monitor can be appointed or the court determines a monitor is not necessary. The duties and powers of a monitor are significant, and include being required to make “reasonable efforts to determine whether a representative” is acting honestly and in good faith, within the boundaries of the representation agreement. The monitor has the power to visit the grantor of the agreement at any time, and cannot be prevented or hindered from doing so by anyone with custody or control of the grantor. The monitor can require the representative to produce accounts and records if they suspect the representative is not acting responsibly, though if they do so they must notify the grantor and all representatives named under the agreement. If after reviewing said records, the monitor still believes the representative is not complying with their responsibilities, the monitor is required to inform the Public Guardian and Trustee.
The Victorian Law Reform Commission expressed caution about a mandatory requirement for monitors. It noted that current law did not prevent grantors from appointing monitors, and that it might be best left to individuals to determine the role, if any, that should be played by a monitor.
On the other hand, the Queensland Law Reform Commission stated that it believed encouraging individuals to include provisions for monitors within their powers of attorney was preferable to options involving public review of accounts, such as periodic reviews of the attorney’s activities by the Public Guardian or the Civil and Administrative Tribunal, or a system of random audits:
Instead, the Commission considers it preferable to encourage people who make enduring powers of attorney to establish their own protections within the enduring power of attorney. This could be done by making provision in the approved forms for an enduring power of attorney for the principal to nominate one or more persons to whom the attorney must, on a regular basis, provide a summary report of records and accounts of all dealings and transactions made by the attorney under his or her power for the adult. Ideally, the principle would nominate a person who the principal trusts and is independent of the attorney. It is anticipated that this approach would not add greatly to the attorney’s load, given that the attorney is required to keep those records in any event. The person who receives the accounts should not have any duty or liability to take any action regarding the accounts. However, it is hoped that a nominated person who suspects or finds financial mismanagement would take appropriate action to resolve the situation, for example, by making an application to the Tribunal for the removal of the attorney or by making a complaint to the Adult Guardian.
- QUESTION FOR CONSIDERATION: Are there mandatory requirements or options that should be added to the creation or provisions of powers of attorney, such as duties to account, monitors or notices of attorneys acting, to improve monitoring and accountability for attorneys?
C. The Public Appointments Process
In Ontario, public appointments processes are available where an SDM is required and the individual does not have the legal capacity to create a personal appointment through a POA. A personal appointments process assumes that the individual, through knowledge of his or her own circumstances, and of the character and circumstances of his or her family or friends, has the motivation and ability to carefully screen and select the most appropriate SDM. A public appointments process must provide external scrutiny both of the necessity for the appointment and the individual selected for the role. While the SDA does make provision for the appointment of the PGT through a POA, in practice this is extremely rare, and in almost all cases the PGT will be appointed through a public appointments process.
The section below focuses on public appointments under the SDA. It should be noted that there is also a public appointments process under the HCCA. Under that Act, the Consent and Capacity Board (CCB) has the power to appoint (or terminate the appointment of) a representative to make a decision for a person who is legally not capable with respect to treatment, admission to long-term care or personal assistance services, upon application by the person for whom the decision is to be made, or by a person who wishes to act as a representative.
1. Appointing a Guardian
In Ontario, guardians may be appointed through three means: statutory guardianship for property, court-appointed guardianship and temporary court-appointed guardianship following a PGT investigation. Each of these is briefly described below.
Statutory guardianship is intended to provide an expeditious, relatively low-cost administrative process for entering guardianship. It was included in the SDA in accordance with the recommendations of the Fram Report, which characterized it as a process intended to “allow families to avoid unnecessary applications to court in situations where there is no doubt about an individual’s incapacity, and the person does not object to having a [guardian]”. It is important to note that statutory guardianship applies only to property management, and not to personal care.
Statutory guardianships are triggered automatically through a finding of a lack of capacity, either through an Examination for Capacity under Part III of the Mental Health Act (MHA), or through a Capacity Assessment under section 16 of the SDA. A detailed description of these capacity assessment processes can be found in Part Two, Chapter I of this Paper. In summary, a Capacity Assessment takes place in the community, as a request and assent-based process performed by a specialized and privately-paid designated capacity assessor. An Examination of Capacity under the MHA is mandatory upon admission to a psychiatric facility, with procedural protections provided through rights advice and access to Legal Aid-funded counsel for an appeal to the CCB.
Initially, the statutory guardian for property is the PGT. However, as is detailed in Part Three, Chapter II, designated individuals may apply to the PGT to become replacement guardians of property, and where the applicant is suitable and has submitted an appropriate management plan, the PGT may appoint the person. There is a fee for a replacement application: in 2013, that fee was $382 plus applicable taxes.
If the PGT refuses an application to act as a replacement statutory guardian, it must give reasons in writing for its decision. If the applicant contests the decision of the PGT in writing, the PGT must apply to the Court to resolve the matter.
Application process and procedural protections: Any person may apply to the Superior Court of Justice to appoint a guardian of property or personal care. It is important to note that guardianships of the person can only be obtained through a court order, and not through a statutory process. Further, guardianship of the person may be full or partial, and full guardianship may be ordered only if the court finds that the individual is incapable with respect to all issues contained within this area, including health care, nutrition, hygiene, safety, shelter and clothing.
An application for guardianship must be accompanied by
- the consent of the proposed guardian;
- a plan for guardianship (if the application is for personal guardianship) or for management of property (if the application is for guardianship of property);
- a statement from the applicant indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or if it was not possible to give the person this information, an explanation of why it was not possible.
The SDA contains additional measures to ensure an adult’s due process rights in these applications. It requires that notice of the application be served with accompanying documents on the adult alleged to be incapable, specified family members and the PGT, among others. The SDA also requires at least one statement of opinion by a capacity assessor that an adult is incapable and, as a result, the same measures of due process that apply to capacity assessments for statutory guardianship appointments also apply to those for summary disposition applications. These include that a capacity assessor must provide information to the adult about the purpose and effect of the assessment and that the adult is entitled to refuse the assessment.
As well, for all applications for court-appointed guardianships, the PGT is a statutory respondent. 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.
Summary procedures: The SDA provides for summary procedures for both applications for and termination of guardianship. This allows the applications to be addressed on the basis of the documents provided, without a hearing or any appearances, where all parties agree to do so. In such summary applications, the judge may grant the relief sought, request the parties to provide further evidence or make representations, or order the matter to proceed to a hearing.
There is little evidence about how summary dispositions operate in practice. The LCO heard from one lawyer that in some cases summary disposition applications have worked effectively and expeditiously as a streamlined process. They minimize the possibility of a court appearance, which makes them more cost-effective. They have particularly worked well in the developmental disability community, when the relationship between the adult and his or her family members is “straightforward” and the application is not contested. However, summary disposition applications are not used frequently. The LCO has heard that one explanation for the low usage of summary disposition applications in Ontario is that appointing a guardian without a hearing has raised concerns regarding due process, given the gravity of the rights at issue. The Law Society of Upper Canada states that “it should be noted that not all jurisdictions or members of the bench allow guardianship matters to proceed in this fashion, citing that the seriousness of the relief requested requires a hearing”.
As well, while summary dispositions are less costly than a regular application with a hearing, costs remain an issue: the costs of summary disposition applications can range between approximately $7,500 and $10,000 in urban centres. Documentation from capacity assessors makes up a large portion of these costs, possibly $3,000 to $4,000 in more complex matters. Additionally, if a judge is not satisfied that a proposed appointment is appropriate based on evidence in the application, he or she may order further information or a hearing.
Least restrictive alternative: Under the SDA a guardian may only be appointed by the court where:
- The individual has been determined to lack capacity to make decisions related to property or to personal care, and as a result of that lack of capacity needs decisions made on her or his behalf by a person authorized to do so, and
- The court is satisfied that there is no alternative course of action that would not require a finding of incapacity and would be less restrictive of the person’s decision-making rights.
The term “alternative course of action” is not defined in the legislation, and in practice, these provisions have received limited use. Powers of attorney have been recognized as important alternatives to guardianship, as well as the importance of informal supports. Notably in Koch (Re), the Court found Koch capable of managing property, commenting that mental capacity exists if the individual is able to carry out decisions with the help of others, and that the appellant had access to a number of services and supports that allowed her to function in her environment.
The wording of the legislation indicates that guardianship is meant to be used as a last resort: even if a person is found to lack legal capacity, a guardian will only be appointed if there is a need for decisions to be made, and there is no less restrictive alternative available. Stephen Fram commented about these provisions to the Standing Committee that held hearings regarding what became the SDA that,
It has always been the intention of the various governments that guardianship, because it takes away all rights in connection with a person, be the last alternative when you can’t use powers of attorney for personal care, when you can’t use a Ulysses contract, where you can’t use other forms of a Consent to Treatment Act. The last thing in the world we want is too much guardianship in the province. This really says, ‘Guardianship is the last resort. If you can’t get the decisions in another way, court-appoint the guardian, but otherwise look to less restrictive means.
Bach and Kerzner make the case that the least restrictive alternative and alternative course of action provisions were originally intended specifically to “address the needs of a very specific group – those individuals with significant intellectual and cognitive disabilities who were unlikely to meet the threshold to appoint a power of attorney for personal care”, and who wish to make decisions without a finding of incapacity, in the context of their trusting relationships.
Temporary Guardianship Following a Serious Adverse Effects Investigation
One of the responsibilities of the PGT is to undertake an investigation where there is an allegation that a person is incapable of managing either property or personal care, and that incapacity is resulting or may result in serious adverse effects. Where a PGT investigation provides the PGT with reasonable grounds to believe that a person is incapable and that prompt action is necessary to prevent serious adverse effects, the PGT must apply to the court for temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. The order must set out the powers and any conditions associated with the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order.
Notice of the application must be served on the allegedly incapable person, unless the court dispenses with the notice in view of the nature and urgency of the matter. If an order is made and notice was not served, the order must be served as quickly as possible.
2. Exiting From Guardianship
The methods for exiting from guardianship will depend on the type of guardianship that is applied to the individual. There are a number of avenues by which the identity of the guardian may be changed (e.g., upon the death of a statutory guardian); the focus here is rather on the process by which an individual may regain the right to make her or his own decisions independently.
Review by the CCB: Where a statutory guardianship is triggered through an assessment by a designated capacity assessor or under Part III of the MHA, the individual has a right to apply to the CCB for review of the assessment, within six months of the assessment. If the CCB determines the person capable of managing property and that decision is either not appealed or upheld on appeal, the guardianship will terminate.
Reassessment of Capacity: For statutory guardianships, a fresh capacity assessment demonstrating capacity will automatically terminate a guardianship. For statutory guardianships entered into through the community process, the statutory guardianship for property will automatically terminate upon the provision of notice to the guardian by a designated capacity assessor, expressing the opinion that the person has the capacity to manage property. It is important to note here that statutory guardians have a duty to facilitate a re-assessment every six months, at minimum, upon the request of the individual under guardianship.
For those who entered into a statutory guardianship through the MHA, the guardianship will be terminated where notice is provided to the guardian that the attending physician cancels the certificate of incapacity, or that the patient has been discharged without a notice of continuance of incapacity, or that after a notice of continuance the attending physician has become of the opinion that the individual is capable of managing property.
Application to Court: Guardianships, whether statutory or court-appointed, may also be terminated or suspended by application to the court. As with applications to appoint guardians, motions to terminate may be carried forward by summary disposition.
3. Concerns and Critiques of the Public Appointments Process
Guardianship has been generally acknowledged to be a measure that, while it may at times be necessary, nevertheless significantly impinges on the fundamental rights of those on whom it is imposed. In the words of Michael Bach and Lana Kerzner,
Determining a person as incapable or incompetent to manage his or her affairs in some or all respects removes a person’s authority over their own lives and vests this authority in another. While usually done in the name of protection, such removal of an individual’s legal personhood is increasingly seen from a disability rights perspective as a violation that brings social and legal harm to individuals. The concern is that individuals are no longer addressed as persons in their own right when their legal capacity to act is restricted, and thus their moral and legal status is more likely to be diminished in the eyes of those in close personal relationships, caregivers, community members, health and human services, and public institutions. This diminishment contributes to the risk of stereotyping, objectification, negative attitudes and other forms of exclusion which people with disabilities disproportionately face; and which increase powerlessness and vulnerability to abuse, neglect and exploitation.
For this reason, modern guardianship legislation, including that of Ontario, aims to impose guardianship only where necessary, where other alternatives, formal or informal, are not available, and only for as long as necessary. As noted above, the SDA specifies that court-appointed guardianship will only be appropriate where no less restrictive course of action is available.
However, concerns remain that in practice, guardianship may still be excessively employed. Kohn et al, writing about guardianship in the United States, note that while guardianship reform has emphasized that it is to be used only as a last resort, research has indicated that guardianships may be imposed without sufficient scrutiny, and rather than being treated as an extraordinary proceeding are being used as a routine part of “permanency planning”. Surtees, in considering the empirical evidence related to guardianship reform in Saskatchewan, notes that despite the positive principles included in that jurisdiction’s 2001 reforms, including the presumption of capacity and a legislative preference for the least restrictive alternative, the overwhelming majority of guardianship orders continue to be virtual plenary orders. Surtees proposes that a lack of knowledge of the legislation on the part of the bench and bar may underlie the issue; as an alternative, applications for guardianship may be delayed too long, so that they are only brought at the point where plenary orders are in fact the least restrictive alternative.
No research has been undertaken specifically for the province of Ontario to determine whether the underlying principles of the legislation with respect to guardianship are being effectively applied in practice. However, these types of concerns have been brought to the fore in Ontario, including in the LCO’s preliminary consultations.
For context, it appears that there are 1838 open personal guardianship files in Ontario as of the fiscal year 2013 – 2014, based on information from the registry of guardians maintained by the PGT. However, it should be noted that unless the PGT is informed of the termination of the guardianship, for example due to the death or incapacity to manage personal care on the part of the guardianship, the file remains open, so that these numbers may be greater than the number of actual active guardianships in the province. Similar caution must be exercised in interpreting the figures related to property guardianships provided below. Section 15 guardianships are statutory guardianships by the PGT resulting from MHA certificates, while section 16 guardianships are statutory guardianships by the PGT resulting from capacity assessments. Under section 19, the PGT may resume a role as statutory guardian where the replacement guardian dies, resigns or becomes incapable of managing property.
Table 1: Count of open property guardianship files by jurisdiction type as at the end of fiscal 2013/14
|PGT S15 SDA||PGT S16 SDA||PGT S19 SDA||PRIVATE
Part Three, Chapter I of this Paper considered alternative forms of decision-making that could form alternatives to guardianship, while Chapter II of that Part considered expanding options for who could provide decision-making assistance. This section of this Chapter focuses on the role of processes in ensuring guardianship is imposed only as necessary. In particular, concerns have been expressed that there are insufficient checks in guardianship processes to ensure that it is employed only as a last resort; that barriers to accessibility in processes make it difficult for individuals to have guardianship removed (or to enter it where needed); that processes are insufficiently flexible to be responsive to changes in circumstances or levels of capacity; and that some of the processes lack sufficient transparency and accountability.
Guardianship as a last resort: As was highlighted above, in an application for a court-appointed guardianship, the court is required to consider whether there are less restrictive alternatives available. No such provision applies to statutory guardianship, and in fact, these processes lead directly to what some consider the most intrusive form of guardianship, that exercised by the state in the form of the PGT.
Bach and Kerzner, in an unpublished paper, have further argued that the provisions related to “least restrictive alternative” for court-appointed guardians have limited applicability in practice. They point out that:
Counsel rarely make these arguments or provide relevant evidence to substantiate the existence of alternatives. It would not be in the applicant’s interest to raise such arguments, as these arguments are in opposition to their desired result, which is to obtain guardianship of the alleged incapable person. Many respondents who are alleged incapable, and would benefit from alternative course of action arguments, are unrepresented and often do not appear at the hearings so they do not have the opportunity to raise such arguments and provide evidence of their existing life circumstances allowing them to effectively make decisions in the absence of guardianship, through alternative avenues such as accessing supports.
Accessibility: Concerns have been raised about the accessibility of guardianship processes. These apply both to processes for entering and for exiting guardianship. Concerns are related to costs and to the reactive nature of many of the provisions related to challenging guardianship.
The LCO has heard that some third parties may not see guardianship as a viable option for some individuals who lack legal capacity, due to cost and process barriers, even where it is the legally appropriate course of action, and may, with the best of intentions, seek to do an “end run” around the legislation, for example, by allowing families to exercise powers beyond those set out in an existing POA. Families may seek to obtain guardianship powers beyond those needed at the present time, because they do not wish to go through the trouble or expense of re-applying to the court as circumstances change. On the other hand, families may also seek to avoid the costs and trouble of formal proceedings by such means as sharing PIN numbers or creating joint accounts, thereby exercising considerable powers with no mechanism for oversight or ability to impose legal responsibility for abuse.
As was described above, the costs for entering or exiting statutory guardianship are more modest than those for a court-appointed guardianship. For an MHA initiated guardianship, the costs for a family member wishing to act as statutory guardian are limited to the replacement application fee. For community-based statutory guardianships, the major cost in addition to the replacement application fee is that of the capacity assessment. The cost of such an assessment may vary considerably depending on the assessor and the complexity of the case, and may range from several hundred to several thousand dollars. The Capacity Assessment Office does have some funding to cover the costs of assessments for low-income individuals. The cost of a capacity assessment is generally also the major component of the cost of exiting statutory guardianships. The court-based process is of course more expensive, including not only the cost of the capacity assessment, but also the expense of legal fees, which may very significant, particularly for those of modest means.
ARCH Disability Law Centre, in their paper on protecting the rights of persons subject to guardianship, notes the barriers that persons with disabilities may face in attempting to assert their capacity and exit guardianship. Litigation to pursue a court order may be beyond their means, particularly where the guardian is controlling access to funds. The lack of a duty on a court-appointed guardian to facilitate re-assessments was of particular concern:
There is no requirement in the SDA that a person subject to a court-appointed guardian be offered an opportunity to be re-assessed to establish that they have regained their capacity. Even if the ‘incapable’ person requests an assessment, there is no explicit obligation on a court-appointed guardian to comply with such a request.
These problems are exacerbated by the lack of effective mechanisms to ensure that persons under guardianship are aware of their rights and the recourse available to them. ARCH notes one case where a woman with an acquired brain disability who was attempting to re-assert her independence said she was told by her guardian that “since the court had granted him guardianship over her, the court would always do as he requested; and that if she caused trouble he could ask the court to put her in jail”.
Flexibility: As was noted earlier in this Chapter, the frequently fluctuating or evolving nature of legal capacity means that flexible processes are necessary to protect the autonomy and security of affected individuals. The SDA contains a number of provisions intended to promote ease of re-assessment of persons who are found incapable, including the requirement for pre-discharge re-examinations of the capacity of individuals found incapable under Part III of the MHA and the requirement on statutory guardians to facilitate re-assessments upon request, every six months at minimum. As well, the temporary nature of “serious adverse effects” guardianships ensures some balance between the need for action in urgent cases and protection of the fundamental rights of those who fall under this type of guardianship. However, concerns have been raised that outside of these relatively limited provisions, there are no regular requirements for review of findings of incapacity or of the necessity for guardianship, and that this, combined with the relative inaccessibility of mechanisms for challenging guardianship, may compromise the rights of persons with disabilities who are under guardianship.
4. Options for Reform
It should be noted that many of the issues related to the processes for creating or ending public appointments are closely tied to those associated with dispute resolution.
For example, some have suggested that a tribunal-based system for creating and reviewing appointments, as well as for resolving disputes and enforcing rights might be preferable to a court-based system. There have also been suggestions that public appointments process might be strengthened by expanded access to rights advice or individual advocacy, or expanded requirements and mechanisms for provision of information and education. These issues are dealt with in Part IV of this Paper, as they relate not only to appointments processes, but to the overall functioning of Ontario’s legal capacity, decision-making and guardianship laws. Therefore, the options for reform outlined below are focussed on either limiting the scope of the authority provided to guardians, or to strengthening processes.
Reducing the Scope or Extent of Powers Accorded to Appointees
Extending the application of partial guardianships: Ontario’s approach to decision-making is domain-specific. It clearly distinguishes between decisions for property and personal care, and as noted above, for court-appointed guardians of the person, there is a strong legislative preference for partial guardianships. While the SDA permits courts, in appointing guardians of property, to impose such conditions as they deem appropriate, there is not the same strong legislative language directing the consideration of and preference for partial guardianships for property. Nor does the legislation specifically address the possibility of partial guardianships for statutory guardians of property. One option for reform, then, may be to strengthen provisions related to partial guardianships for property, whether those guardianships occur through court or statutory appointments.
Some jurisdictions provide explicitly for partial guardianships for property matters. In Alberta, when the court addresses trusteeships for property matters, the court may provide that the order applies “only to property or financial matters specified in the order”.
Stronger provisions were recommended by the Victorian Law Reform Commission, in its review of that Australian state’s capacity and guardianship laws. It recommended that for both personal and financial matters, a non-exhaustive list of types of decisions be created. In particular, it suggested a very specific list of financial matters, including such things as paying sums of money to the person for their personal expenditure, receiving and recovering money payable to the person, carrying on a trade or business of the person, performing contracts entered into by the person, investing for the person, undertaking a real estate transaction for the person, withdrawing money from, or depositing money into, the person’s account with a financial institution, and many others. For any guardianship order, the Victorian Civil and Administrative Tribunal (VCAT) would stipulate in the order which specific powers the guardian or administrator should have or, in rare circumstances, that the guardian is able to exercise powers related to all matters in the list. That is, the legislation would specifically direct the VCAT’s consideration to the very particular decision-making needs of the individual at issue, and indicates that full administration of property-related matters by the substitute decision-maker should be the exception and not the rule.
Because a significant number of property guardianships in Ontario are created through statutory appointments, if partial guardianships for property are considered desirable, it may also be important to consider mechanisms for directing consideration of partial guardianships in these circumstances, for example, by directing the PGT to consider this as an issue during the replacement application process.
It should be noted that, because the range of decisions that may fall within property management is so extensive, and needs will often evolve as an individual moves through the life cycle, there is a risk with partial guardianships for property of unexpected and problematic gaps in the guardianship order. The nature of the state of Victoria’s tribunal system, which, as is noted below, emphasizes regular review of orders, likely makes this a less pressing concern in their context.
Appointments for specific decisions only: In some jurisdictions, the court or tribunal has the power to make a specific necessary decision for an individual, rather than appoint a substitute decision-maker or supporter. For example, in the Bill currently before the Irish parliament, where the court has made a finding of incapacity, and a co-decision-making order is inappropriate, the court has the power to make the necessary decision or decisions on behalf of the individual, “where it is satisfied that the matter is urgent or that it is otherwise expedient for it to do so”. The court may also appoint a decision-making representative solely for the purpose of making a single decision, where appropriate.
- QUESTION FOR CONSIDERATION: Should Ontario consider reforms to create or strengthen options for more limited forms of guardianship, such as partial guardianships or appointments for specific decisions only? If so, what would be the most practical and effective reforms?
Time-limited guardianships and mandatory reviews: A second potential area of reform involves time limitations or regular reviews of guardianship orders or both. Notably, Article 12 of the CRPD explicitly requires that measures related to legal capacity “apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body”. The SDA permits the court to impose time limitations when it appoints guardians of the person or of property, but it does not create any preference for time limited guardianships, or mandate regular review. The legislation does not explicitly reference time limitations for statutory guardianships. Temporary guardianships arising from “serious adverse effects” investigations are specifically limited to 90 days (although the court has the power to extend the term, as well as reducing or terminating it).
In the Australian state of Victoria, VCAT orders for guardianship (personal or financial) are subject to regular re-assessment. Under the legislation, a reassessment must occur within 12 months after the VCAT makes an order, and at least once within each three year period after an order is made, unless the VCAT orders otherwise. Upon reassessment, the VCAT has the power to continue, revoke, vary or replace the order, as it finds appropriate. In practice, VCAT often orders reassessments of personal guardianship orders every 12 months, and of administration (property) orders every three years. The VCAT also has the power to issue a self-executing order that expires after a designated period or event, unless an application is made to extend the order. These are more common for guardianship than administration orders.
The province of Alberta has included in the Adult Guardianship and Trusteeship Act somewhat weaker requirements for review: where the court appoints a guardian (who may deal only with personal matters) or trustee (who deals with financial matters), if the capacity assessment report indicated a likelihood of improvement in capacity, the order must include a date for application for a review; if the capacity assessment report does not so indicate, the order may include a date for application for a review.
ARCH Disability Law Centre recommends that all substitute decision-making arrangements be time-limited, with provisions for review and potential renewal upon expiry of the term of the appointment. As well, ARCH recommends that all persons subject to substitute decision-making be notified of a right to have their capacity reassessed on a regular basis, and of the existence of public funds to cover the costs for those who cannot afford an assessment. As well, where-ever the court orders a substitute decision-making arrangement, it must require the decision-maker to offer or arrange a capacity assessment at regular intervals.
Special orders regarding persons with fluctuating capacity: In its comprehensive review of Queensland’s guardianship legislation, the Queensland Law Reform Commission highlighted the issues associated with orders related to persons with fluctuating capacity, and questioned whether guardianship or administration orders for persons with fluctuating capacity ought to be limited in some way, such as, for example, providing that the powers are exercisable only during those periods where the individual lacks capacity. The Commission noted that such orders would raise complex issues, such as who should have the burden of proving capacity in particular circumstances, and how and in what circumstances capacity should be assessed. Further, third parties, particularly financial service providers, might find that such orders provided insufficient clarify and certainty regarding the legal authority for any specific decision. However, the Commission ultimately concluded that the interest in protecting the autonomy of adults with fluctuating capacity outweighed these difficulties. It therefore recommended that in those specific instances where individuals have fluctuating capacity, the Civil and Administrative Tribunal should have the power to make an order that the powers are exercisable only in those periods where capacity is lacking, that the guardian or administrator in these circumstances must apply the presumption of capacity in exercising their powers, and that the powers could be exercised only where that presumption was rebutted.
- QUESTION FOR CONSIDERATION: Are there reforms that should be made to law, policy or practice to ensure regular review of the need for a guardian, such as requirements for time limited guardianships, mandated regular guardianship reviews or special orders for persons with fluctuating capacity? If so, what would be the most practical and effective reforms?
Streamlining Processes for Entry to and Exit from Guardianship: During the LCO’s initial consultations, several interviewees raised the possibility of streamlined processes for entering and exiting guardianship. As was noted above, Ontario already has a number of reasonably simplified mechanisms, including entry to guardianship through statutory appointments together with the replacement application process, and the summary disposition procedures for entering and exiting guardianship.
When considering further simplification of the processes for entering and exiting guardianship, one must keep in mind the seriousness of the rights at issue. There are risks to the individual in both entering and exiting guardianship, including concerns about fundamental principles of autonomy and security are at play. Due process protections should not lightly be dispensed with.
Some of the concerns with Ontario’s existing streamlined processes were discussed earlier in this Chapter, particularly concerns about whether such processes may provide insufficient safeguards and whether they adequately address the costs issue.
Concerns regarding due process in the context of streamlined court applications have been noted in other jurisdictions. For instance, Professor Surtees informed the LCO that in Saskatchewan, the majority of court orders are made through an application without a hearing. Although this procedure was designed to be accessible, he believes it does not consistently safeguard an adult’s rights. Professor Surtees reports that the process is difficult to navigate, the adults who are the subjects of an application are infrequently consulted with respect to their wishes and they may not be thoroughly apprised of the process.
Alberta’s desk applications for guardianship and co-decision-making provide an example of a streamlined court process with enhanced oversight and support from a government agency. In Alberta, a self-help kit has been made available to members of the public with forms that have been designed to be user-friendly. Applicants forward the desk application documents to specialized review officers within the Office of the Public Guardian who ensure proper completion of the documents and fulfill other duties including providing notice of the application to appropriate parties, drafting a review officer’s report and forwarding the documents to the court. The review officers typically meet with the adult who is subject of the application to consult with them about their wishes. The LCO heard that in Alberta, desk applications have generally been regarded as a success in terms of the number of persons using the process and reducing the need for a lawyer.
- QUESTION FOR CONSIDERATION: Are there reforms to law, policy or practice that would result in a better balancing of accessibility and responsiveness of guardianship procedures with the necessity for adequate procedural protections for such a weighty decision? If so, what would be the most practical and effective reforms?
Expanded approach to “alternative course of action” and the principle of “least restrictive alternative” to facilitate non-guardianship options: As was noted earlier, court-appointed guardianships are permitted only where the court is not satisfied that the need for decisions to be made can be met by an “alternative course of action” that does not require a finding of incapacity and that is “less restrictive of the person’s decision-making rights” than guardianship. Importantly, there is no similar provision for statutory guardianships, considering the quite different process that they entail.
Alberta’s capacity and decision-making regime includes supported decision-making authorizations, as well as public appointments of co-decision-makers, as described in Part Three, Chapter I. Alberta has no provisions parallel to Ontario’s statutory guardianship appointments: all appointments of guardians and trustees are made through the Court, although the “desk application” process for these applications is a significant contrast with Ontario’s court-appointment process. When considering appointments of either guardians or trustees, courts must, like Ontario’s Superior Court of Justice, first be satisfied not only that the individual lacks capacity to make the requisite decisions, and that the appointment is in the individual’s best interests, but also whether “less intrusive and less restrictive alternative measures than the appointment” would not adequately protect the adult’s financial interests in the case of trusteeships, or have been considered or implemented and have not or would not likely be effective to meet the needs in the case of a guardianship application. In considering the individual’s “best interests”, the court must consider any personal directive or supported decision-making order made by the adult, or any co-decision-making order that is in effect. Another mechanism to reduce unnecessary guardianships or trusteeships may be found in the requirements for capacity assessments. Capacity assessments are explicitly made two-step processes. Prior to conducting any assessment, the assessor must
- ensure that he or she has been advised of the reasons for the request for an assessment and been provided with a description of the events that gave rise to the request;
- ensure that a medical evaluation has been conducted within the last three months and that that evaluation did not indicate any reversible medical condition that appeared likely to have an effect on capacity;
- make reasonable efforts to meet with the adult in person to provide information about rights and the significance of the procedure and see if the individual requires any accommodations for the effective conduct of the assessment.
Further, a capacity assessor may conduct an assessment only if the assessor is satisfied that an assessment with respect to that matter is warranted.
Bach and Kerzner, in an unpublished paper commissioned by the LCO, argue for a broad re-envisioning of the concept of alternative course of action and the principle of least restrictive course of action, as part of a shift towards a supported decision-making approach. Several aspects of this proposal were highlighted in Part Three, Chapter II and elsewhere in this Paper. Importantly, they emphasize that “what is really needed for fulsome recognition of alternatives and supports is not simply a provision, but a legislatively recognized process which gives evidence and direction as to how the exploration of alternatives is to take place, and which seeks to maximize access to alternatives and supports”. 
Bach and Kerzner recommend a statutory definition of “alternative course of action” that includes recognition of a range of supports, including supported decision-making planning documents and a statutory form of supported decision-making, and a reformed statutory and court-appointed guardianship process that includes “alternative course of action assessors” and assessments. These “ACA Assessors” would be separate from the current designated capacity assessors. Their task would be to assess alternatives to findings of incapacity and appointment of SDMs. These ACA assessors would have their own set of guidelines and certification procedures. ACA assessments would be required to accompany any application for either statutory or court-appointed guardianships, to provide evidence on which the “least restrictive alternative” requirement could be verified. 
- QUESTION FOR CONSIDERATION: Are there reforms to law, policy or practice that could more effectively ensure that guardians are appointed for individuals only as a last resort, where no less restrictive alternatives are available? If so, what would be the most practical and effective reforms?
D. Questions 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?
- What practical reforms to law, policy or practice would most effectively provide grantors of powers of attorney for property with more effective means of appropriately triggering the operation of these documents?
- Are there reforms that should be made to the requirements or options for the creation of a power of attorney to improve the understanding or grantors or attorneys or both of the risks, benefits and responsibilities associated with these powerful documents? If so, what would be the most practical and effective reforms?
- Would a registry system for powers of attorney improve the ability to verify and validate these documents, or to prevent and identify abuse? What would be the benefits and disadvantages of a registry system?
- If a registry system for powers of attorney should be created,
a) Should it be voluntary or mandatory?
b) What information should be maintained in the registry?
c) Who should have access to the information in the registry and under what circumstances?
d) Who should operate the registry?
e) What would be required to ensure its compliance with privacy legislation?
- Are there mandatory requirements or options that should be added to the creation or provisions of powers of attorney, such as duties to account, monitors or notices of attorneys acting, to improve monitoring and accountability for attorneys? If so, what would be the most practical and effective reforms?
- Should Ontario consider reforms to create or strengthen options for more limited forms of guardianship, such as partial guardianships or appointments for specific decisions only? If so, what would be the most practical and effective reforms?
- Should Ontario consider reforms to guardianship procedures to ensure regular review of the need for a guardian, such as requirements for time-limited guardianships or mandated regular guardianship reviews? If so, what would be the most practical and effective reforms?
- Are there reforms to law, policy or practice that would result in a better balancing of accessibility and responsiveness of guardianship procedures with the necessity for adequate procedural protections for such a weighty decision? If so, what would be the most practical and effective reforms?
- Are there reforms to law, policy or practice that could more effectively ensure that guardians are appointed for individuals only as a last resort, where no less restrictive alternatives are available? If so, what would be the most practical and effective reforms?
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