FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter VII
For the full text of draft recommendations, see the accompanying document
Main Point of the Chapter
Concerns about abuse and misuse of powers of attorney have been a dominating concern among stakeholders for this project. Chapter VI examines proposals for increasing transparency and accountability for those acting under powers of attorney.
Powers of attorney allow individuals to choose for themselves who will make decisions for them if necessary, and to create tailored instructions or restrictions for those decision-makers. They are highly valued tools. However, the flexibility and accessibility that make powers of attorney so valuable also make them susceptible to abuse and misuse. Indeed, the LCO heard widespread concern about the abuse of powers of attorney.
Powers of attorney rely on the creator to screen potential appointees to ensure that they are capable of undertaking the associated duties, and are willing and suitable to do so. Ontario’s legislation regarding powers of attorney aims to make these tools widely accessible. As a result, there are relatively few practical or procedural barriers to their creation. There is a risk is that those creating powers of attorney may not fully understand the implications, and may put themselves at risk of abuse, neglect or exploitation.
As well, as private appointments, these powerful documents are amenable to very little scrutiny. Abuse or misuse may be difficult to detect. Further, the very impairments in memory, ability to receive or assess information or to evaluate the intentions of others that are reasons to activate powers of attorney also make it harder for those individuals to monitor the activities of the attorney or to identify or seek help regarding inappropriate or abusive behaviour.
Those appointed as attorneys, particularly family members, may accept the role out of a sense of duty, without any sense of the extent or nature of the obligations that it entails. They may not understand their statutory responsibilities, or may not have the skill to appropriately carry them out, and so may inadvertently misuse their powers.
There appear to be three key issues underlying misuse of powers of attorney:
· the widespread lack of knowledge or understanding of the responsibilities associated with these instruments;
· a lack of transparency about the contents or existence of these documents which makes it difficult to ensure that they are being implemented as intended; and
· a lack of meaningful mechanisms for accountability when misuse is suspected.
It is important to prevent abuse and misuse. However, in doing so, it is important that reforms make efficient use of limited government resources and do not:
· overly increase burdens for family caregivers who are often carrying out challenging responsibilities with very few supports and are in most cases doing the best they can, or
· make powers of attorney inaccessible to those who would benefit from them.
Weighing these factors, the LCO has not recommended:
· requiring powers of attorney to be completed with the assistance of a lawyer,
· the creation of a registry, or
· mandatory reports or regular audits of persons acting under these documents.
Here is a summary of the LCO’s draft recommendations in this area:
21. Persons accepting appointment under a personal appointment within the Substitute Decisions Act be required to sign, prior to acting under the appointment, a Statement of Commitment that specifies the statutory responsibilities of the appointee, the consequences of failure to fulfil those responsibilities, and acceptance by the appointee of these responsibilities and the accompanying consequences.
22. Persons acting under a power of attorney be required to deliver, at the time they begin to exercise authority under the document, a Notice of Attorney Acting to persons specified in the power of attorney, unless the grantor has opted out of the Notice of Attorney Acting provisions.
23. Creation in the Substitute Decisions Act of a specified role of “Monitor”, with powers to review records and to visit and speak with the person in question, and responsibilities to make reasonable efforts to ensure that statutory responsibilities are being complied with: this role would be optional for a power of attorney, but mandatory for a personal support authorization.
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