A. Introduction: the Frameworks for the Law as It Affects Older Adults and Persons with Disabilities
As was highlighted in Chapter I, this project grew out of the LCO’s two Framework projects on the law as it affects older persons and the law as it affects persons with disabilities, which were completed in 2012. These two sister projects aimed, not to create specific recommendations for changes to particular laws, but to develop approaches to law reform relating to these two communities. They were undertaken contemporaneously to better appreciate their overlap, but separately in order not to conflate the experiences of aging and of living with a disability. Both projects also incorporated consideration of the heterogeneity within these communities. These projects resulted in comprehensive Reports as well as the Frameworks, which set out step-by-step approaches to evaluating laws, policies, practices and law reform proposals related to the two groups, based on a set of principles and considerations. From its inception, this project was intended to apply the considerations and principles that underpin the Frameworks to the law of legal capacity, decision-making and guardianship, to develop recommendations for reform to law, policy and practice.
Appendix F of this Paper sets out the Principles and Considerations for Implementation of each of the Frameworks for easy reference. The full Frameworks also contain a step-by-step process for evaluating laws, policies and practices, including a set of questions that assist in identifying and analyzing the application of the principles and considerations to the law. The full Frameworks and their accompanying Reports can be accessed online through the LCO’s website at http://www.lco-cdo.org/en.
This grounding of the project in the Frameworks has had implications for its every aspect, including the following:
Focus on substantive equality for persons with disabilities and older adults: Most profoundly, adopting a Framework analysis means that the LCO’s analysis of the impact of the law and of its effectiveness has focused on the experiences of persons with disabilities and older adults who are affected by these laws, and that the ultimate intent of the recommendations is to advance the substantive equality of these individuals. It also means that the analysis is rooted in the Framework principles, which are themselves derived from foundational laws, such as the Charter of Rights and Freedoms and the Ontario Human Rights Code, and from international instruments such as the International Principles for Older Persons and the Convention on the Rights of Persons with Disabilities (CRPD).
Emphasizing an inclusive law reform process: As well as the substance of the analysis and draft recommendations, the Frameworks have shaped the project process. Step 2 of each of the Frameworks sets out considerations for reviewing or developing new legislation. These focus on the meaningful inclusion of older adults and persons with disabilities in the process of review, including processes for research, public consultation, communications and analysis.
Considering the implementation gap: The problem of the “implementation gap” plays a central role in both Frameworks. Even where laws are based on a thorough and nuanced understanding of the circumstances of older adults or persons with disabilities and aim to promote positive principles, their implementation may fall far short of their goals. There may be many reasons for the implementation gap: problems with misunderstandings of the law, negative or paternalistic attitudes on the part of those responsible for implementing it, and shortfalls in mechanisms for access to the law, including systems for rights enforcement and dispute resolution. The Frameworks therefore focus not only on the substance of the law, but also on how it is applied in practice, and encourage users to consider shortfalls not only in the law itself, but in the policies and practices that accompany it. The implementation gap plays a significant role in critiques of Ontario’s legal capacity, decision-making and guardianship laws.
This Chapter provides an overview of the Frameworks, and of how the principles and considerations have been applied in this project. As well, each Chapter explicitly considers the application of the Frameworks to the particular issues raised in that Chapter.
B. Applying the Frameworks: Considering the Contexts in Which the Law Operates
Step I of the Frameworks asks users to consider the context of the particular law being evaluated, including how that context may relate to or affect the attainment of the principles, and the challenges or constraints implicit in that context.
There are a number of contexts that were brought to the LCO’s attention during research and consultations as crucial to take into account in developing recommendations for improvements to law, policy and practice in the area of legal capacity, decision-making and guardianship.
Connecting the issues to broader issues of disability and elder rights: Issues related to legal capacity and decision-making cannot be separated from broader issues of disability and elder rights. The application of the LCO’s Frameworks to this area makes this broader connection clear. It is also highlighted by the significant role of Article 12 of the United Nations CRPD. Persons with disabilities and older persons, as well as their advocates, have framed issues related to legal capacity and decision-making as central to the achievement of equality, dignity and autonomy for these groups. For example, ARCH Disability Law Centre has stated,
Due to the manner in which guardianships are created, and the broad-reaching nature of guardians’ power and obligations, guardianships have the potential to significantly impact the rights of persons with disabilities who have capacity issues. These are fundamental human rights, including the right to legal capacity, the right to self-determination, and the right to substantive equality.
Demographic and social trends and pressures: The Discussion Paper briefly highlighted some of the key demographic and social trends affecting this area of the law, including the aging of Ontario’s (and Canada’s) population, and changes in family structures. Because cognitive impairments resulting from stroke or dementia are more likely with age, the aging of Ontario’s population is bringing issues related to legal capacity and decision-making into greater prominence and placing increasing pressure on existing supports and services. The trend towards smaller and more geographically dispersed families means that fewer Ontarians who are unable to make decisions independently will have a family member who is both willing and available to provide these important supports.
Also important to consider is the growing cultural and linguistic diversity of Ontario. Looking at Toronto alone, over 140 languages and dialects are spoken in the city, and over 30 per cent of the population speaks a language other than English or French at home. Half of Toronto’s population was born outside of Canada. There is a significant population of Franco-Ontarians, particularly in Eastern and Northeastern Ontario, and despite their linguistic rights, they may face challenges in accessing information and services in their own language, as the LCO heard during the course of its consultations. As well, attention must be paid to the cultural, linguistic and other needs of Aboriginal Ontarians. This diversity requires knowledge and sensitivity in the provision of information and education about this area of the law, in the provision of supports for navigating the law, and in the assessment of legal capacity, where linguistic or cultural barriers may affect the outcome of the assessment. In translating from one language to another, simple transcription or rendering of words may not be sufficient. Words and concepts are embedded in a cultural context involving historical, social, religious and other factors. The literal meaning of a word or concept in another language may not reflect how it is actually understood in another language. Therefore, to the extent possible, we need to provide not only translation, but cultural translation; this may require that written or oral supports be prepared not first in English or French but in the relevant other language.
The impact of social isolation and marginalization: Consultations widely emphasized the social isolation and marginalization affecting those most deeply affected by this area of the law, and the significant implications of this for any approach to law reform. Older persons will often have outlived their families and social networks, or family members or friends who remain may themselves be frail or in need of assistance. Parents of adults with intellectual or developmental disabilities stressed the significant efforts that they had put into developing networks for their adult children, how difficult it was, and how limited the results of this effort had often been. Persons with significant mental health disabilities often find themselves very socially isolated. The lack of strong social networks around persons who require assistance with decision-making limits the options for who provides assistance – the only people who are available and willing may not be truly appropriate – as well as creating greater opportunities for abuse and limiting the ability to access redress. That is, broader societal challenges related to the principle of promoting social inclusion and participation for persons with disabilities and older adults are an important context for this project and a challenge for law reform.
The connection to social, health and financial services: Legal capacity and decision-making issues do not, for the most part, arise in a vacuum, but in the context of the delivery of particular services and supports to specific communities. The implementation of legal capacity and decision-making laws is inextricably tied to how those services and supports are structured and delivered, and they are delivered through different Ministries and regulatory regimes, to different populations in different contexts, and based on different assumptions. The particular ways in which these laws play out is quite different for persons living in long-term care, for example, than it is for persons living in group homes.
The family context: The laws in this area are implicitly premised on the ability and willingness of family members to provide supports and assistance as necessary. For the most part, those acting formally or informally with or on behalf of persons who face challenges in making decisions are family members (or otherwise have a personal and intimate relationship with the person). They provide this assistance as part of their understanding of their family roles and responsibilities, and for the most part they provide it with little in the way of formal supports. This role is often extraordinarily challenging, and families may make significant financial, emotional and personal sacrifices in order to carry it out to the best of their abilities. It is difficult to see how these roles could be effectively fulfilled if family members did not so often voluntarily assume them.
However, it is important to acknowledge that family members may not always be well-equipped to take on this role, which may require them to act as navigators, problem-solvers and advocates in very confusing systems involving large and powerful institutions. Persons with mental health disabilities pointed out to the LCO that their family members might not have the knowledge to be their advocates and supporters within the mental health system, or might be intimidated by the expertise of psychiatrists and other professionals and instinctively defer to them. A brain injury survivor told the LCO how his spouse became statutory guardian of property following his accident: while she was motivated to do the best she could, she did not have the skills or knowledge to manage this role well.
And while it is often the expectation that family members will act in a selfless way to maximize the wellbeing of