III. Decision-making2017-03-03T18:34:59+00:00

 

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 uncomfortable with “the government” playing such a role. Some other jurisdictions provide a broader range of options for who may act for those who require assistance with decision-making.

  • Some jurisdictions provide an extensive role for “professional guardians” or “professional fiduciaries” who provide for-profit professional services, generally on a consumer choice basis, with varying levels of requirements for licensing, training and oversight.
  • In some jurisdictions, community organizations have an important role, either in directly providing decision-making services and supports, or in recruiting, training and overseeing individuals who fill this role.
  • Volunteers have been used to varying degrees to provide supports and decision-making services for those who have no family or close friends to do so.
  • Personal support networks, which are already playing important roles in the lives of persons with disabilities, may be in a position to play a more significant role in this area of the law.

As well, as issues related to the range of individuals and organizations that may act for those who need assistance with decision-making, questions have been raised as to how we can better support all individuals who perform this challenging role.

Please share your thoughts on any or all of these questions:

1.      Should Ontario expand the role that specialized professionals may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:
a)     For what types of decisions should these professionals be authorized to act?
b)     What types of training, licensing or educational requirements should be required of these professionals?
c)      What types of oversight and monitoring should be put in place for these professionals? Who should carry out this oversight and monitoring?
d)     What should be the responsibilities and liability of these professionals?
e)     What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?

2.      Should Ontario expand the role that volunteers or other community members may play in acting for persons who have been determined to lack legal capacity for a particular type of decision? If so:
a)     For what types of decisions and in what types of circumstances should these individuals be authorized to act?
b)     Who should be responsible for recruiting, selecting and overseeing these individuals?
c)      What types of training or supports should be provided to these individuals?
d)     What types of oversight and monitoring should be put in place? Who should carry out this oversight and monitoring?
e)     What should be the responsibilities and liability of these individuals?
f)      What additional measures should be put in place to prevent, identify and address neglect, misuse or abuse by these professionals?

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

4.      What role might personal support networks play in a reformed Ontario capacity, decision-making and guardianship system? How might this role be formalized in law?

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

6.      Are reforms required to strengthen oversight and monitoring of the role of the Public Guardian and Trustee as substitute decision-maker? If so, what specific reforms would be most appropriate and effective?

 

C.    Appointment and Exit Processes for Substitute Decision-makers

FOR MORE INFORMATION ON THIS TOPIC, SEE THE DISCUSSION PAPER, PART THREE CH III

Background

The processes for appointment of substitute decision-makers must balance a number of goals, including accessibility, efficiency, flexibility, transparency and accountability, and provision of choice to the affected individual. In Ontario, substitute decision-makers may be appointed in three ways:

1.      Personal appointments through a power of attorney (POA) for property management or personal care: These are extremely powerful legal instruments, which allow the person acting as attorney to do almost anything that the grantor could do, including buying or selling property, cashing out investments, or making decisions about living arrangements. POAs are a flexible and accessible means of appointing a substitute, and allow the grantor to plan ahead and to choose their own substitute. Their powerful nature gives their holders considerable control over the well-being of the grantors, whether for good or for ill. Ontario has designed the requirements for creating a POA in a manner intended to promote their accessibility. While the capacity required to create a POA for property is quite high, that required for a POA for personal care is very low. There is no required form for a POA, although the Ministry of the Attorney General has created a form which is available on its website. Legal assistance is not required. 

2.      Automatic appointments: under the HCCA, where a person who requires assistance for a particular decision does not already have a substitute decision-maker in place, one is appointed automatically from a hierarchical list of family members who meet basic eligibility requirements and who are available and willing to act. The LCO’s preliminary consultations did not reveal significant concerns with the statutory requirements related to automatic appointments, although issues do arise as a result of widespread misunderstandings of the hierarchical list. 

3.      Public appointments (guardianships): In some circumstances, a public appointment happens automatically where a lack of capacity has been identified and there is a need for decision-making (“statutory guardianship”). In other circumstances, guardianship will take place through application to the Superior Court of Justice (“court-appointed guardianship”). In these cases, the Court must be satisfied that there is no alternative course of action that would not require a finding of incapacity and would be less restrictive of the individual’s decision-making rights. The PGT is a statutory respondent for all such applications, and may raise issues or appear at the hearing to submit evidence or make submissions. The process for court-appointed guardianships is fairly onerous, although there are provisions for streamlined (summary) procedures, but the process for statutory guardianships is simple, low-cost and essentially administrative in nature.    

 

Issues Related to Powers of Attorney

The use of POAs has generally been considered a very positive element of Ontario’s legislative scheme, as they allow individuals to plan ahead, to choose for themselves who will assist them should they need decision-making assistance, and to do so in a way that is flexible and accessible. However, stakeholders have identified major concerns regarding abuse of POAs: the private nature of these appointments does tend to reduce scrutiny and increase the risk that abuse may be carried out undetected. 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. Many have expressed concerns that neither grantors nor attorneys sufficiently grasp the nature and gravity of the responsibilities associated with these documents. A number of potential reforms have been identified, such as the imposition of requirements to seek legal advice, the use of a mandatory form that would include information, or requirements to include in POAs notice requirements upon the activation of the document, or obligations on attorneys to account to specified individuals.

Third parties have raised concerns about the difficulty in locating and validating POAs, given the private nature of these documents. As a result of these difficulties, service providers may rely on invalid appointments, overapply limited appointments, or fail to respect valid appointments. Voluntary or mandatory public registration systems for POAs have been suggested as one means of addressing these challenges. Concerns about registry systems include costs, cumbersomeness and privacy implications. 

 

Issues Related to Appointments of Guardians

Guardianship has major implications for the autonomy and well-being of the individuals concerned. It is therefore very important that the processes for appointing and removing guardians reflect the significance of the rights at issue and be able to effectively determine those circumstances where guardianship is necessary and those where it is not. 

Two major concerns have been expressed regarding Ontario’s current processes for the appointment and removal of guardians. First, while guardianship should be a last resort, it has been argued that Ontario’s processes do not sufficiently encourage a rigorous examination of alternatives, so that some individuals may unnecessarily find themselves under guardianship. Secondly, these processes may not be sufficiently responsive to situations of fluctuating capacity. In particular, court-based processes for guardianship are costly, as well as relatively onerous and complex, which discourages review of the need for guardianship. A number of options for reform have been identified, including extending the application of partial guardianships, creating an emphasis on time-limited guardianships or regular reviews of guardianship orders, streamlining or simplifying processes for entering or exiting guardianship, and strengthening mechanisms for ensuring consideration of alternatives to guardianship where needs for decision-making assistance exist.  

Please share your thoughts on any or all of these questions:

1.      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?

2.      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?

3.      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?

4.      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?

5.      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?

6.      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?

7.      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?

8.      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?

9.      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?

10.   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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