This Chapter provides a very brief overview of the key elements of Ontario’s systems for legal capacity, decision-making and guardianship. It is not intended as a guide to the system, but rather to orient readers who may not be as familiar with this area of the law to the key elements of Ontario’s approach and how each aspect fits into the entire scheme, as well as some of its core strengths and shortcomings. Further details of key provisions are set out in the relevant chapters.
A. Description of Ontario’s Legal Capacity and Decision-making Laws
Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Three separate law reform initiatives undertaken during this time profoundly influenced Ontario’s current laws. The Committee on the Enquiry on Mental Competency (“Weisstub Enquiry”) was given the task of developing a set of recommended standards for determining the mental competence of individuals to make decisions about health care, management of financial affairs and appointment of a substitute decision-maker: the Final Report concluded that the process for testing legal capacity must respect both the principle of autonomy and that of best interests, as well as reflecting the importance of proportionality, administrative simplicity and relevance. The Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (“Fram Committee”) was appointed by the Attorney General to “review all aspects of the law governing, and related to, substitute decision making for mentally incapacitated persons and to recommend revision of this law where appropriate”, and its Final Report (“the Fram Report”) identified as underlying values for this area of the law freedom from unnecessary intervention; self-determination; and community living through access to support. The Review of Advocacy for Vulnerable Adults (“the O’Sullivan Report”), while ultimately having a more limited legislative impact, identified a number of important goals associated with this area of the law, including, among others, providing safeguards against unnecessary guardianship; promoting independence; encouraging self-advocacy (self-determination) where possible; enhancing the role of family and friends; and educating, delabeling and destigmatizing.
Ontario’s resulting statutory framework for legal capacity, decision-making and guardianship is extensive, intricate and nuanced. At its core are two statutes: the Substitute Decisions Act (SDA), which addresses decisions related to property management and personal care, and identifies the appointment processes and the duties of guardians and those acting under powers of attorney (POA); and the Health Care Consent Act, 1996 (HCCA), which addresses consent to treatment, admission to long-term care homes and personal assistance services for residents of long-term care homes. In addition, the Mental Health Act (MHA) addresses examinations of capacity to manage property upon admission to or discharge from a psychiatric facility. There are other laws related to legal capacity, including those related to access to personal health information, and the common law, which are not addressed in this project. Although the project focuses on this particular area of the law, of course laws related to legal capacity and decision-making must be understood within the broader context of laws related to health services, long-term and community care, elder abuse, income support programs and others.
To understand the actual implementation of these laws, it is important to keep in mind that they are delivered through multiple ministries and organizations in a very wide range of contexts. The Ministry of the Attorney General, the Ministry of Health and Long-Term Care, the Ontario Seniors Secretariat, the Ministry of Community and Social Services, and the Public Guardian and Trustee (PGT) all play important roles in the delivery of this legislation. Persons directly affected by these laws may be living in long-term care homes, retirement homes, group homes, hospitals, psychiatric facilities or the community. Those affected may have temporary acute illnesses or chronic conditions. They may be living with addictions, mental health disabilities, acquired brain injuries, dementia, aphasia, developmental or intellectual disabilities, or many other types of disabilities. The complexity of implementation adds immensely to the complexity of the laws themselves.
Approach to Legal Capacity
In Ontario, the approach to legal capacity is functional and cognitive. The focus is on the functional requirements of a particular decision, not a medical diagnosis, the probable outcome of the person’s decisions, or an abstract assessment of abilities. Tests for legal capacity are based on the ability to understand and appreciate the information relevant to a particular decision or type of decision, and the consequences of making that decision (or of not making a decision).
Determinations of legal capacity are domain or decision-specific, recognizing that a person can have the ability to make some decisions and not others. There are specific tests of capacity for different types of decisions. It is also understood that the ability to understand and appreciate may vary over time.
Because determinations of legal capacity affect the autonomy interests of individuals, the legislation codifies a clear presumption of capacity for the ability to contract, make decisions about personal care, and to make decisions about treatment, admission to long-term care and personal assistance services. Legal capacity in these areas can only be removed through specific mechanisms outlined in the legislation: these mechanisms differ for these decision-making areas, in part because treatment and admission to long-term care involve the provision of necessary services for which the provider has an affirmative duty to obtain consent.
Assessing Legal Capacity
Ontario has an extremely elaborate system for assessing legal capacity, in part deriving from its domain specific approach to capacity. The type of assessment of capacity carried out depends on the nature of the decision at issue. In addition to the informal assessments of capacity that are carried out by service providers, there are four formal, statutorily regulated mechanisms:
1. Examinations of capacity to manage property upon admission to or discharge from a psychiatric facility: under the MHA, when a person is admitted to a psychiatric facility, an examination of capacity to manage property is mandatory, unless the person’s property is already under someone else’s management through a guardianship for property under the SDA or there are reasonable grounds to believe that there is a continuing power of attorney which provides for the management of property. These examinations are carried out by a physician. While individuals do not have the ability to refuse an examination, there are a number of important procedural protections, such as access to independent, specialized rights advice upon a finding of incapacity.
2. Assessments of capacity to manage property or personal care: under the SDA, assessments of legal capacity to manage property or personal care may be carried out for a variety of reasons, such as to trigger statutory guardianship for property or to activate a continuing power of attorney for property or personal care. To trigger a statutory guardianship for property, a Capacity Assessment by a designated Capacity Assessor is required. If a continuing power of attorney for property is one that comes into effect upon the grantor’s incapacity, if the power of attorney does not specify otherwise, the determination of incapacity must be made under the MHA, as described above, or by a designated Capacity Assessor. For a power of attorney for personal care, the assessment is that of the appointed attorney, unless the document requires otherwise. A professional designated as a Capacity Assessor under the SDA must meet particular requirements related to education and training and comply with guidelines developed under the statute. A list of Capacity Assessors is maintained by the Capacity Assessment Office: it is the responsibility of those seeking a Capacity Assessment to select and pay for this service.
3. Assessments of capacity to make treatment decisions: under the HCCA, these assessments are carried out by the health practitioner who is proposing the treatment, as part of the process of obtaining valid consent to treatment. Guidelines for these assessments are provided by the health regulatory college for the various professions. Patients found to be incapable are entitled to the provision of basic rights information by the treating practitioner.
4. Evaluations of capacity to make decisions regarding admission to long-term care: Capacity evaluators are responsible for assessing legal capacity to make decisions regarding consent to admission to long-term care and personal assistance services. Capacity evaluators must be members of a limited number of health regulatory colleges, but do not have any statutorily mandated training or guidelines related to their activities. As with assessments related to treatment, rights information (rather than independent rights advice) must be provided to a person who is found incapable following an evaluation.
Where a decision is necessary and an individual has been found legally incapable with respect to that decision or that type of decision, a substitute decision-maker (SDM) will be appointed to make that decision. The methods of appointment are described in the following sections.
Once appointed, the SDM is held responsible at law for his or her actions in this role, and may be liable for damages for breach of duties. The SDM is to act on the individual’s behalf and for that person’s benefit. An SDM for property is a fiduciary, and must carry out his or her duties diligently, with honesty and integrity, and in good faith, for the benefit of the individual.
The legislation sets out criteria for decisions made by SDMs. In managing the property, the SDM shall make those expenditures that are reasonably necessary, in order of priority,
· for the individual’s support, education and care;
· for the support, education and care of the individual’s dependents; and
· that are necessary to satisfy the individual’s legal obligations.
For personal care and treatment decisions, the SDM must respect the prior capable wishes of the individual. If no prior wishes or instructions were expressed, the SDM is to be guided by the best interests of the individual, taking into consideration the following variables:
· the individual’s values and beliefs held while capable, and that the SDM believes the individual would still act on if capable;
· the individual’s current wishes, if they can be ascertained; and
· whether the decision is likely to improve the individual’s quality of life, prevent its deterioration, or reduce the extent or rate of any deterioration; and whether the benefits of the decision will outweigh the risk of harm from an alternative decision.
In general, the SDM must choose the least intrusive and restrictive course of action available and appropriate in the circumstances.
SDMs for property and personal care must keep records of their activities, and have a number of important procedural duties, such as:
· explaining their powers and duties to the individual;
· encouraging the participation of the individual in decisions related to property;
· fostering regular personal contact between the individual and her or his supportive family members and friends; and
· consulting from time to time with supportive family members and friends who are in regular personal contact with the individual, as well as those from whom the individual receives personal care.
Powers of Attorney
In Ontario, individuals may use a power of attorney (POA) to personally appoint a continuing SDM for property. Such a POA for property may be drafted to come into effect immediately upon the crea