A. Introduction and Background
As was discussed in Chapter III, one of the values underlying the current legislation related to legal capacity, decision-making and guardianship is avoidance of unnecessary intervention. Substitute decision-making was intended to be used as a last resort, where legal capacity is lacking and substitute decision-making is required for a necessary decision to be made. Ontario’s current laws related to legal capacity, decision-making and guardianship contain a number of significant measures intended to prevent unnecessary intervention in the lives of individuals and ensure that substitute decision-making – and in particular guardianship – are used only where there are no appropriate available alternatives. However, during the LCO’s public consultations, many participants expressed concerns that substitute decision-making continues to be inappropriately or excessively employed. Chapter V, which considers assessments of capacity, addresses concerns with how substitute decision-making is triggered under the Health Care Consent Act, 1996 (HCCA) through various assessments of legal capacity.
During the consultations in this project, the most serious concerns about inappropriate intervention were expressed about guardianship, since it is more restrictive than a power of attorney (POA), is the least flexible in terms of entry and exit, does not provide the opportunity for the individual to select the substitute decision-maker (SDM) or to formally express wishes as is possible with POAs and is generally experienced as more marginalizing. As well, because powers of attorney are personal documents rather than public appointments, many of the issues related to their misuse arise in connection either with faulty approaches to assessing capacity (and thereby improper activation of these documents) or with misuse by the SDM, issues that are dealt with in Chapter VII of this Interim Report. Therefore, this Chapter focusses on the appointment of guardians.
There are a variety of reasons why substitute decision-making may be sought or imposed where it is not wholly necessary. In some cases where legal capacity is doubtful, service providers may seek formal arrangements that appear to provide them with assurance that the agreements into which they are entering are legitimate and enforceable. Efforts to comply with privacy protections may preclude individuals from making use of the kind of informal supports and arrangements that have been employed in the past, for example by making it difficult for family members to obtain or share information on behalf of their loved ones. Families who are struggling with the challenges of caring for a person with a significant disability affecting their cognition may hope that formal substitute decision-making arrangements will give them greater access to supports or ease the difficulties of providing care. Warring family members may hope that a formal position as SDM will give them the upper hand in their disputes. Pressured service providers may find it simpler to consult with and obtain decisions from family members, rather than take the time to determine on a case by case basis whether the individual can make her or his own decisions or to effectively communicate with a person with challenges in receiving, analyzing or providing information.
Problems in the implementation of existing laws may contribute to this kind of misuse or overuse of substitute decision-making. For example, professionals, service providers and SDMs often misunderstand the law in this area, particularly the concept of legal capacity and the responsibilities of SDMs, so that they fail to respect the provisions of the law intended to limit the use of substitute decision-making, such as the presumption of capacity and the notion of domain or decision-specific capacity. The costliness and complexity of the processes for creating and terminating guardianships may encourage guardians to seek broad, rather than limited, and possibly more appropriate, powers to avoid having to undergo the process again, and may discourage efforts to terminate guardianships when they are no longer needed.
There are draft recommendations throughout this Interim Report that aim to reduce inappropriate or unnecessary interventions and to safeguard autonomy. For example, draft recommendations related to education and information aim to ensure that SDMs understand the limits of their powers and their responsibilities to encourage the participation of the person affected. Draft recommendations related to alternatives to substitute decision-making, as outlined in Chapter VI, aim to provide options for those for whom other approaches are more appropriate. Draft recommendations in Chapter VII aimed at strengthening monitoring and rights enforcement related to substitute decision-making are intended to reduce inappropriate or excessive use of substitute decision-making powers. This Chapter focusses on changes to the external appointment processes to help ensure that guardianships are used only where and to the extent that no other alternative is available and appropriate.
B. Current Ontario Law
In Ontario, guardians may be appointed through two means: statutory guardianship for property (only) and court-appointed guardianships for either property or personal care.
Statutory Guardianship
Statutory guardianship is the major means through which individuals enter into property guardianship. Based on 2013-2014 figures provided by the Public Guardian and Trustee, of those persons currently under property guardianship in Ontario, approximately three-quarters entered this status through the statutory guardianship process.[368]
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 requested by “a person” under section 16 of the SDA.
The processes for these assessments were more fully detailed in Chapter V. However, it is important to note that these assessment processes are attended by a number of important rights protections, intended to recognize that the consequences of these assessments for the fundamental rights of the affected individual may be extremely significant. For example, Capacity Assessments under the SDA may only be conducted by a qualified Capacity Assessor who has met designated requirements for education and training.[369] The SDA sets out a number of procedural rights for persons undergoing these assessments,[370] including a right in most circumstances to refuse an assessment;[371] a right to receive information about the purpose, significance and potential effect of the assessment;[372] and a right to receive written notice of the findings of the assessment.[373] Where the individual becomes subject to a statutory guardianship, the Public Guardian and Trustee (PGT) must, upon receipt of the certificate of incapacity, inform the individual that the PGT has become their guardian of property and that they are entitled to apply to the Consent and Capacity Board (CCB) for a review of the finding of incapacity.[374] Persons who enter into statutory guardianship under the provisions of