A. Introduction and Background
1. The Importance of Personal Appointments
One of the most important reforms included in the Substitute Decisions Act, 1992 (SDA) was the introduction of powers of attorney (POA) as instruments that could operate during the legal incapacity of the grantor. This created a process for personally appointing substitute decision-makers (SDM) in a way that was highly flexible and accessible. The POA was a considerable advancement for the autonomy of Ontarians, allowing them to choose for themselves who would make decisions for them if necessary, and to create tailored instructions or restrictions for those decision-makers.
However, these instruments are also highly vulnerable to abuse or misuse. Personal appointments such as POAs rely on the individual to screen potential appointees to ensure that they are capable of undertaking the associated duties, and are willing and suitable to do so. 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. Because Ontario’s legislation regarding POAs aims to make these tools widely accessible, there are relatively few practical or procedural barriers to their creation, as compared with other jurisdictions. The resultant risk is that those creating POAs may not fully understand the potential implications of doing so, and may put themselves at risk of abuse, neglect or exploitation by their attorneys. In practice, individuals may choose an attorney for reasons that have very little to do with who would best exercise that role, and more to do with family dynamics.
As well, as private appointments, these powerful documents are amenable to very little scrutiny, so that 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 substitute decision-making arrangements also make it harder for those individuals to monitor the activities of the persons acting under a personal appointment or to identify or seek help regarding inappropriate or abusive behaviour.
This Chapter focuses on the creation of personal appointments and the responsibilities of those appointed, with a view to addressing these concerns. Although they are not a form of substitute decision-making, the proposed support authorizations are also personal appointments and pose similar risks. Therefore, the discussion in this Chapter is also applicable to these arrangements, should the government decide to add such arrangements to the legislation. Where there are differences in approach for POAs and support authorizations, these will be explicitly addressed, as with the discussion of monitors in Chapter VI. Chapter VIII, which addresses rights enforcement and dispute resolution, discusses the available mechanisms and remedies where abuse or misuse arises: this Chapter focuses on the prevention and identification of such issues.
2. Distinguishing Abuse and Misuse
It is useful, when considering these issues, to make some distinction between misuse of statutory powers and the carrying out of abuse through these powers. Although abuse and misuse may overlap and both may have significant negative consequences for those affected, they differ in their motives and in whether they are inadvertent or intentional, and therefore in strategies for prevention, identification and redress. For example, the provision of information and education is likely to be important in addressing misuse of statutory decision-making powers; it is likely to have less of an impact in shaping the behaviour of deliberate abusers. It is important, when considering potential law reforms in this area, to give thought to the ramifications for both misuse of the legislation and outright abuse.
Abuse carried out through statutory powers is just one aspect of the broader problem of abuse of older persons and persons with disabilities. Abuse may include physical, sexual, psychological or financial abuse, as well as neglect. Abuse may be perpetrated by institutions or by individuals – as the Vanguard Project notes, by “anyone who may be in a position of intimacy with or power over the vulnerable adult”. It generally includes an element of violation of trust and dependency.
While definitions of abuse, elder abuse and abuse of persons with disabilities continue to be subjects of debate, it is clear that these are large issues with multiple dimensions and many aspects that fall beyond the scope of this project. In particular, this project is not intended to deal with abuse of persons whose decision-making abilities are not impaired and whose legal capacity is not at issue. Broader issues related to abuse of legally capable older adults were frequently raised during the consultations. While these form part of the context of the issues under examination in this project, the LCO does not intend to make recommendations on these more general issues and believes that it is important to maintain a distinction between the situations of legally capable and incapable persons with respect to abuse.
Misuse of statutory decision-making powers is a more pervasive problem. A well-intentioned individual may be unaware of or misunderstand their role and obligations under an appointment, or may not have the skills to fulfil it, and as a result, he or she may, for example, use a POA for purposes beyond those intended, fail to carry out important obligations such as consulting the person or keeping accounts, or inappropriately apply a paternalistic or best interests approach to decision-making where the legislation indicates another approach is required. As a result, the clear intent of the legislation may be subverted, and the autonomy, dignity and participation of the affected individual may be undermined.
B. Current Ontario Law
Current Ontario law includes a number of provisions intended as safeguards against abuse or misuse of the powers granted to SDMs under a POA.
Execution requirements: The SDA includes a number of requirements for the creation of a POA that are intended to ensure that those creating POAs understand the implications, and are not coerced into creating these documents. These include the requirements for two independent witnesses to the creation of the POA, and for a statement of intent in creating a continuing POA for property, among others.
Record-keeping requirements: All SDMs under the SDA are required to keep accounts of their activities on behalf of the person they are appointed to assist.
Procedural duties: The SDA includes a number of requirements that increase transparency and accountability for SDMs, including duties to explain their role to the person, foster supportive contact with family and friends, and to consult from time to time with family and friends in the discharge of their responsibilities.
Standard of care: SDMs for property are held to a fiduciary standard, while SDMs for personal care are required to act diligently and in good faith.
Clear requirements for decision-making: The clear requirements as to the principles and considerations to be taken into account in the discharge of the SDM’s role simplify determinations of whether the SDM is acting to benefit the person rather than his or herself.
C. Areas of Concern
As was discussed at some length in the Discussion Paper, Part Four, Ch I, there are widespread concerns about abuse and misuse of substitute decision-making arrangements, with particular focus on POAs. Partly because of the nature of the laws in this area and partly because of the nature of the problem of abuse, the information available about abuse of legal capacity and decision-making laws is scanty. The available information is reviewed in the Discussion Paper.
The paucity of information is a challenge for law reform. However, it is fair to say that abuse and misuse of legal capacity and decision-making laws was a dominating concern in both the preliminary consultations for this project and in the fall 2014 public consultations. Concerns were expressed by legal professionals, families, health practitioners, advocates and community organizations, long-term care providers, financial institutions and other service providers – that is, across the full range of those consulted. The general perception is that this is a significant and very troubling issue, and that demographics and economics indicate that it is only likely to grow in extent.
I live now in a full time practice where I only see those that go wrong and I’m always mindful of the fact that I hope to think most of them go right, so that we’ve got to be careful before we cast a wide net that affects 100% of the situations. I’m not going to be blind to the fact that there is an ever growing number of situations of terrible abuse, talking about financial abuse …. Having said that, with an aging population, with what appears to be great inroads made in medical science to keep us alive longer but not necessarily keep our minds functional, we become more susceptible as we grow older and more vulnerable, and so there’s a lot of that grey area.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2014
The LCO received a number of very lengthy submissions from family members who felt that their loved ones had been mistreated through the law and expressing frustration with the mechanisms for redress currently available. Service providers in particular often struggle with these issues. In many cases, abuse and misuse of powers only comes to light through interactions with service providers, for example when a long-term care provider notices that a resident cannot meet expenses, or a family member presses a financial institution to undertake what it believes to be an improper course of action. These individuals and institutions face challenging ethical and practical issues in addressing concerns about abuse.
It is important to keep in mind that the vast majority of appointees will be family members or close friends. These are the individuals who know the affected persons most intimately, and who might be expected to best understand their values and hopes, to have their well-being at heart, and to have the requisite dedication and commitment to carry out the often extensive responsibilities associated with this role. These are also the persons with whom the individual who lacks or who is preparing for the possibility of lacking legal capacity is likely to have multi-layered ongoing ties of interdependence. This area of the law is therefore almost always implemented within the complex dynamics of family relationships.
Many consultees pointed out that in most cases these family members are acting not for gain but out of love and duty. Most are not only carrying out this very significant responsibility as SDMs, but also themselves providing substantial care to their loved one, as well as attempting to meet other family or employment obligations. The task, while for the most part willingly accepted, is a heavy one. These individuals emphasized that they are already navigating multiple burdensome bureaucracies, filling out reams of paperwork, and making considerable personal sacrifices. In their view, it is unreasonable to expect more in this vein from them: they are at the limit of what they can manage. Many family members expressed a desire for oversight and monitoring processes that would be meaningful in identifying and addressing abuse, but not burdensome on families doing the best that they can.
So that [any oversight processes] it’s not hard, it’s not so onerous I won’t participate in the process, but it might catch… because if you’re going to allow someone to go into a life-threatening situation, you’re probably taking them into their finances, too, right? And have it so that it’s a complaint base, too, so that if my neighbour thinks I’m taking advantage of [my adult child] or the organisations think I’m taking advantage of [my adult child], it could be reported by anybody, just like with the CAS. Anybody can make a report and there will be an investigation.