A. New Decision-Making Arrangements: Supporters and Co-Decision-Makers
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART THREE CH I
Background
As is described above, currently in Ontario, where an individual is found to have insufficient ability to “understand and appreciate” the information relevant to a particular decision or type of decision and a decision must be made, a substitute will be appointed to make that decision or kind of decision on behalf of that individual.
With the ratification of the Convention on the Rights of Persons with Disabilities and with deepening understandings of the experiences and aspirations of persons with disabilities, there has been a call to move away from paternalistic and best interests approaches to decision-making, toward a fuller recognition of the equality of persons with disabilities and the provision of supports to allow persons who require assistance with decision-making to receive that assistance without the loss of legal capacity. This calls for fundamental shifts in approaches and novel legal structures, and therefore raises significant practical questions.
The term “supported decision-making” refers to a range of models. At its base, this approach is founded on the view that as social creatures, we all naturally make decisions in support or dialogue with those whom we trust, and that these decision-making supports for individuals with disabilities should be recognized in a way that legally affirms that the ultimate decision remains with the individual him or herself and avoids removing legal capacity from these individuals. That is, the role of “supporters” is to assist individuals in making decisions, but the ultimate decision (and responsibility for that decision) rests with the individual. Another approach is “co-decision-making”, which mandates joint decision-making between an individual and an appointed co-decision-maker. Decisions made by the individual alone, without the co-decision-maker, are not legally valid.
Issues
While several jurisdictions have included some form of supported decision-making in their capacity and guardianship legislation, it remains a relatively novel approach. There is no generally agreed-upon approach to its practical implementation, and there is little research on its effectiveness in practice. Critics have emphasized concerns about the potential for abuse and exploitation: since the supported individuals retain legal responsibility for decisions that are made and of course also retain the right to make bad and risky decisions for themselves, it may be difficult to effectively hold to account supporters who manipulate individuals to their own benefit. As well, third parties have raised concerns about their responsibilities when interacting with individuals in supported decision-making arrangements, emphasizing the importance of clarity and certainty.
With respect to co-decision-making, there are concerns about the unavoidable legal complexity of such arrangements. As well, because the individual in a co-decision-making arrangement must obtain the agreement of the appointee, the relationship is inherently unequal and may have a tendency to collapse into substitute decision-making.
Please share your thoughts on any or all of these questions:
1. What are the advantages and risks of formalizing supported decision-making in Ontario law?
2. If formal supported decision-making is incorporated into Ontario law:
a) To whom should it apply?
b) What should be the test for capacity to be part of such an arrangement or to end it?
c) Should this type of decision-making be available for all types of decisions or only for some?
d) Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e) Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f) Who should be able to act as a supporter?
g) What should be the responsibilities of supporters?
h) What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i) What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j) What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements?
3. What are the advantages and risks of formalizing co-decision-making in Ontario law?
4. If co-decision-making is incorporated into Ontario law:
a) To whom should it apply?
b) What should be the test for capacity to be part of such an arrangement or to end it?
c) Should this type of decision-making be available for all types of decisions or only for some?
d) Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e) Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f) Who should be able to act as a co-decision-maker?
g) What should be the responsibilities of supporters?
h) What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i) What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j) What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements?
B. Who May Act in a Substitute Decision-Making Role
FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART THREE CH II
Background
The role of a substitute decision-maker is very demanding one, involving high levels of responsibility and demanding significant skills and dedication. Its proper exercise is crucial to the rights and wellbeing of those for whom the substitute decision-maker acts. Beyond very minimal requirements, persons creating a power of attorney have the freedom to choose whom they like to act as an attorney for property management or personal care. Similarly, “any person” may apply to the Superior Court of Justice to be appointed as a guardian for personal care or for property. In practice, however, the roles of guardian or attorney are most frequently filled by family members or close personal friends, reflecting the intimate and demanding nature of the role. In a similar vein, the HCCA creates a hierarchical list of potential substitutes, which prioritizes family members where no guardianship, power of attorney or appointed representative exists.
Under both the SDA and HCCA, where there is no individual who is willing and able to act as a substitute decision-maker, the Public Guardian and Trustee (PGT) will do so. For court-appointed guardianships, powers of attorney, and decisions under the HCCA, the PGT is decision-maker of last resort. For statutory guardianships for property, the PGT is automatically appointed as decision-maker upon certification of a lack of capacity to manage property unless a valid attorney or guardian is already in place. There is a relatively simple and low-cost process by which family members can apply to replace the PGT as statutory guardians of property.
Issues
As a result of changes in economics, family structures and demographics, a growing number of individuals who require assistance with decision-making have no one whom they trust and who is close to them who is also willing and able to act in this role. While the PGT has a statutory role to act as a substitute decision-maker in these circumstances, the PGT cannot of course reproduce the type of intimate personal relationship that is often thought of as an ideal foundation for this role; as well, some are uncomforta