FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter XII
Legal capacity, decision-making and guardianship laws raise many difficult issues. Entangled as these laws are in the broader social contexts surrounding aging and disability, family caregiving, and delivery of health and social services, they present challenging ethical and practical questions. They also raise issues of fundamental rights for individuals who are very frequently vulnerable or marginalized. Consultees have emphasized to the LCO the gravity of the issues at stake in reforming these laws, and the seriousness of society’s responsibility to those affected. The LCO has taken this message to heart, and has attempted to craft recommendations that respond to the circumstances of those affected and that respect and promote their rights and wellbeing.
At the same time, the LCO has recognized the constraints surrounding reform of these laws, including fiscal restraints for government and key institutions, competing needs among stakeholders, and, in a number of areas, a lack of a clear evidentiary base on which to proceed.
There are two ways of approaching the implementation of the proposed reforms in this Interim Report. The first approach addresses the comprehensive impact and ultimate goals of the draft recommendations. As an aid to implementation and as part of its progressive realization approach to law reform in this area, the LCO has identified key priorities for reform, those draft recommendations which have the greatest potential to substantially transform this area of the law and address the most serious, systemic issues. The LCO’s key priorities for reform are:
1. Expansion and reform of the Consent and Capacity Board to create an expert, independent, specialized administrative tribunal able to provide flexible, accessible and timely adjudication with respect to appointments of substitute decision-makers, resolve disputes related to the roles of these decision-makers, and enforce the rights under the legislation.
2. Strengthening information and education for individuals affected, families, and professionals and service providers involved with legal capacity and decision-making law.
3. Improving the quality of assessments of capacity and promoting access to basic procedural rights for those found legally incapable under the Health Care Consent Act.
The second approach provides a practical framework for how to achieve this comprehensive reform over time. For this purpose, the LCO has identified draft recommendations which are relatively straightforward to implement, and so can be addressed in a shorter time frame, as well as those which require more time, thought or resources for implementation. The LCO’s proposed recommendations, organized according to timeframes, can be found at http://www.lco-cdo.org/en/capacity-guardianship-interim-report-appendixB.
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