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.
Focus Group, Family Members of Persons with Intellectual Disabilities, October 16, 2014
A few family members also expressed the feeling that “the government” should not be intruding into their personal family affairs, and that by and large families should be trusted to care responsibly for their members.
[I]t doesn’t make any sense for those of us, the majority who are taking very good care of their family, whether we have money or don’t have money. There are still lots of people without any that are taking very good care of their family members, and you’re always under threat of interference. … if you tried to come and walk in my door, you wouldn’t even get past the door, period, end of… I don’t care who you are. This is my family, this is my home, and nobody asked you to come here, and I didn’t say that you could, you know? You know, nobody sends anybody to see how I deal with my other children, and sometimes they need help making decisions, believe it or not, you know, like in the real world.
Focus Group, Family Members of Persons with Intellectual Disabilities, October 16, 2014
On the other hand, family members worry, often intensely, about the risks that their loved ones will face if they outlive them. They see their loved ones as vulnerable, and the current system as offering inadequate protections. One aging parent of an adult child with a disability commented that if, after her death, her family members failed to properly carry out their responsibilities to her loved one, her only recourse would be that, “I’ll haunt you every night”.
The issue of misuse of SDM powers was closely tied, in the view of consultees, with the widespread ignorance of the requirements of the legislation. Since persons creating POAs often have only a limited understanding of the implications of these documents, they may not give sufficient thought to whom they should appoint, or to whether they should include restrictions or further instructions in the document. POAs may be selected, not based on who will best carry out the role, but to avoid unpleasantness or family disagreements. As a result, grantors may appoint individuals who do not have the skills or the temperament to carry out the role appropriately, or jointly appoint family members whose past history indicates a complete inability to work together.
In the same vein, most SDMs have only a limited understanding of their roles. There are no mechanisms for ensuring that SDMs understand their task: while some will take the initiative to research their responsibilities, many will not. As a result, it is not surprising that these roles are often imperfectly carried out.
Lack of institutional or professional understanding of POAs may add to these challenges. For example, long-term care homes or retirement homes may strongly encourage new residents to create these, without understanding or communicating the risks and requirements associated with these powerful documents. In a recent case where a POA for property created under such conditions led to significant financial abuse, Deputy Judge Michael Bay commented on a long-term care home’s practice of “strongly encouraging” POAs among new residents are follows:
The evidence indicates that an official of the centre suggested that the family simply print a power of attorney form off the Internet. There is no indication that any sort of independent legal advice was recommended for the grantor. Nor is there any indication that new residents receive guidance as to the pros and cons of granting a power of attorney for property, who they might chose and who they might wish to avoid, how to build in safeguards or limitations or otherwise customize the document so that it serves their needs and wishes. Most importantly, it does not appear that the incoming resident was told how powerful and dangerous a power of attorney can be and that she was free not to grant one if she wished ….
To put pressure on elderly vulnerable persons to do so without due contemplation; for that is what inevitably occurs when such a ‘strong suggestion’ is made by a person in authority at time of admission to a care facility and without independent professional advice; is nothing short of appalling. To then divert all of the resident’s mail to a third party without regard to the resident’s capacity and without their permission is to invite and facilitate the sort of financial victimization that occurred in this case.
Another concern is that there are no proactive monitoring mechanisms. While both POAs and guardians are required to keep records, it will be rare for either a guardian or a POA to be required to pass their accounts. Where abuse is detected, it is often because a service provider has encountered something problematic, whether it is a homecare worker witnessing an inappropriate interaction, a long-term care home provider finding that a resident can no longer pay his or her bill because the finances have been drained, or a financial service institution noticing a suspicious pattern of transactions. Often, by the time abuse comes to light, it has been ongoing for some time. Where the abuse is financial, it is very difficult to recover any funds: the damage is done. Of course, the impact of any type of abuse on the self-worth, happiness and overall wellbeing of the victim is a long-lasting one.
Balanced against concerns regarding abuse and misuse was the perceived importance of maintaining the accessibility and ease of use of POAs. Many consultees pointed to the importance of powers of POAs as tools for planning ahead and retaining some control over one’s future: in their view, people ought to be encouraged, not discouraged from creating these instruments. Requirements that make the creation of a valid POA too difficult or too costly would, in this view, defeat the fundamental goals of these instruments.
[T]he beauty of the power of attorney arrangement is its theoretical simplicity and the ease with which a person can make plans for their own incapacity and the ease with which somebody doing so can choose who it is they want to have control over their affairs.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2014
D. Applying the Frameworks
Concerns related to abuse and misuse clearly invoke the LCO Framework Principles of security and safety, described in Chapter III. Importantly, the principles of security and of safety identified in the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities respectively linked them to freedom from abuse and exploitation; the Framework for the Law as It Affects Older Adults also linked it to the ability to access basic supports such as health, legal and social services. The importance of safeguards against abuse of persons who fall within legal capacity and decision-making law is explicitly identified in Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), which states that
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
Issues related to safeguards against abuse and misuse also connect to the principle of autonomy and independence. Abuse and misuse clearly can undermine autonomy and independence, and certainly it is generally in the interests of abusers to exert maximum control over the person that they are abusing or exploiting. The institution of safeguards and remedies can protect and restore the autonomy and independence of a person who is at risk of or who is experiencing abuse.
In balancing the principles, it is important to take into account that personal appointments, such as POAs and support authorizations, are themselves expressions of and ways of protecting and promoting autonomy – unless of course they are created under conditions of ignorance, duress or manipulation. Powers of attorney (and potentially, support authorizations), as relatively unrestricted instruments for individuals to make choices about the conduct of decision-making in situations of actual or potential lack of legal capacity, both enhance autonomy for grantors and, if used without proper knowledge or care, increase risks of abuse. That is, safeguards and interventions with respect to abuse and misuse must be weighed against the value of these instruments in promoting autonomy and independence. Safeguards and remedies for abuse and misuse can restrict the autonomy of affected individuals. Additional safeguards for personal appointments may diminish access to these autonomy-enhancing instruments, or reduce the range of choices that individuals can exercise through them. Additional safeguards must therefore be designed in a way that keeps in mind the potential “cost” of each safeguard to individual autonomy.
One means of enhancing security in the context of personal appointments is to increase the degree to which they are implemented in the context of the grantor’s broader social networks – that is, to engage the community of interested individuals who may surround the grantor in monitoring and potentially intervening in cases of abuse or misuse. That is, law and policy may be used to strengthen the effectiveness of existing social networks. These social networks may not be as powerful or knowledgeable as institutions, but they may be seen as less intrusive on privacy and self-determination because these are relationships that have been chosen by the individual.
It is clear that in addressing issues of abuse and misuse, there must be a nuanced understanding of the principles of autonomy and independence, and of safety/security. While the principles must be balanced, they must also be understood as closely connected: one cannot be achieved without the other.
E. The LCO’s Approach to Reform
The lack of a meaningful evidentiary base regarding the use and misuse of substitute decision-making powers adds considerable difficulty to the task of law reform in this area. This is particularly true for POAs. As it is impossible to know how many POAs are in operation in the province, and there is not much in the way of quantitative evidence regarding the extent of the abuse or misuse of POAs, one is left to rely on anecdotal evidence. The LCO’s consultations on these issues emphasized two messages: the value of POAs and the corresponding importance that they continue to be accessible to Ontarians across all income levels; and the widespread perception that these instruments, and potentially to a somewhat lesser degree guardianships, are poorly understood, are easily misused, and are in fact misused (and outright abused) with considerable frequency.
When the current legislative scheme was in development, considerable attention was paid to the balance between accessibility and accountability in the creation of personal appointments and guardianships. The SDA includes a number of important safeguards, outlined above, but the overall balance has been towards accessibility and ease of use. Now that the legislation has been in place for some two decades, the experience of the legislation, together with shifts in technology and demographic trends, suggests to the LCO that while accessibility of these instruments remains as important as ever, some adjustments must be made to address issues of misuse and abuse.
Do you just, I think you [another participant] expressed it this way, this is just the cost that we pay of allowing people the freedom of self-determination. Which we all agree is the right underlying premise for these laws and I don’t think anybody would give you pushback on that. And is that just the cost? You know, that’s a valid point to make. And I don’t know but I don’t, I’m not sure that it necessarily means we ignore the potential for abuse if there is some way to strike a balance between controlling that to some extent and still recognising individual rights and privacy and rights of choice and so forth, that’s maybe something worth exploring.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2014
There appear to be a few key issues underlying concerns about misuse of POAs: the widespread lack of knowledge or understanding of the responsibilities associated with these instruments on the part of those who are appointed under them; a lack of transparency about the contents or existence of these documents, making it difficult to ensure that they are being implemented as intended; and a lack of meaningful mechanisms for accountability when these documents are misused.
The LCO has adopted the following four goals for reforms related to abuse and misuse of decision-making powers:
1. maintaining reasonably straightforward and low-cost access to planning tools;
2. promoting better understanding of these personal and external appointments among both grantors and those exercising powers: there are predators, as well as families whose dynamics are negative and exploitive, and these people will not be influenced by better information, but most families are doing the best they can and will be better able to fulfil their responsibilities with stronger supports;
3. as resources are limited at all levels, giving preference to reforms that are not unduly complex, burdensome or costly either for government or for individuals and families; and
4. making it easier for those who are already involved with and have concern for populations that are particularly vulnerable to raise concerns.
These issues are closely connected to concerns related to dispute resolution and rights enforcement, which are addressed in Chapter VIII.
F. Draft Recommendations
1. Promoting Understanding of Duties and Responsibilities
While issues of education and information are dealt with more comprehensively in Chapter XI, these issues were particularly strongly raised in relation to abuse and misuse of POAs, and so are also briefly addressed here. The Ministry of the Attorney General provides helpful online information on POAs, guardianships and the role of the Public Guardian and Trustee (PGT), as well as a series of paper handouts, and there is a considerable amount of valuable information contained in the government Power of Attorney Kit. Organizations such as ARCH Disability Law Centre, Elder Abuse Ontario, the Advocacy Centre for the Elderly, and Community Legal Education Ontario all provide information to a range of audiences and in a variety of formats. However, these resources all rely on persons creating or acting under the POA to seek them out, and these individuals may not know where or how to find this information, or even that they need to seek out information.
Chapter XI makes a number of broader draft recommendations related to the provision of education and information to individuals and to their SDMs. The discussion for the purposes of this Chapter focusses on means of providing standard basic information about statutory responsibilities either at the time of creation of a POA or at the time it is activated. The LCO received a number of suggestions for improving understanding of roles and responsibilities under POAs.
Requiring legal counsel for the creation of a valid personal appointment
As was noted above, Ontario currently includes a number of execution requirements intended to safeguard against abuse, including a requirement for two witnesses. These witnesses must be over 18 years of age and may not be under guardianship, and they may not include the attorney named in the document, the attorney’s spouse or partner, the grantor’s spouse or partner, or a child of the grantor. Some jurisdictions have much more stringent requirements related to witnessing: Manitoba restricts witnesses to a list of certain professionals, and Saskatchewan requires that witnesses each sign a witness certificate attesting to their opinion that the grantor could understanding the nature and effect of the enduring power of attorney at the time that it was signed. In its recent Final Report on the Nova Scotia Powers of Attorney Act, the Law Reform Commission of Nova Scotia recommended that in addition to excluding minors, the attorney and the attorney’s spouse or partner from acting as witnesses, the adult children of the attorney should be excluded as witnesses to an enduring power of attorney. The Law Reform Commission commented that, “We acknowledge the difficulty in further restricting the range of potential witnesses. Sometimes family members and other interested persons are in the best position to confirm the donor’s legal capacity and willingness.”
During some of the LCO’s focus groups, it was proposed that, as a safeguard against abuse in the execution process beyond requirements for witnesses, grantors should be required, in order to create a valid continuing power of attorney for property or personal care, to seek legal advice.
Canadian jurisdictions generally do not require legal advice to create a valid POA. The exception is the Yukon, which requires that enduring POAs be accompanied by a certificate of legal advice. Saskatchewan offers the option of either having two witnesses for the POA, or having a lawyer provide legal advice and a certificate of witness.
There was some support during the LCO’s focus groups for requiring a certificate of legal advice either for all POAs or for POAs for property management only – notably, one of the two focus groups with trusts and estates lawyers strongly endorsed such a requirement, as a method of ensuring validity of POAs and understanding of their ramifications among donors, and thus as a measure to prevent abuse and misuse. However, many others, including a second group of trusts and estates lawyers, were very hesitant about such an approach. The additional cost and trouble of securing legal advice would, in this view, make POAs inaccessible for lower income individuals, and would act as a deterrent even for those who could afford the legal fees.
The LCO believes that such a requirement would be unduly burdensome and would in fact deter some significant number of individuals from completing a POA, thereby pushing individuals either into arrangements that are very difficult to monitor and do not carry the same legal obligations (such as sharing PIN numbers for bank accounts or the creation of joint accounts), or into the much more restrictive guardianship system. The LCO does not recommend a requirement for legal advice for the creation of a personal appointment.
The LCO has proposed a number of draft recommendations in Chapter XI aimed at increasing the reach, accessibility and reliability of the information and education available to individuals regarding legal capacity and decision-making: it is the view of the LCO that improving access to information can improve the quality of personal appointments without creating the kind of undue barriers associated with a requirement for legal advice.
A mandatory standard form for powers of attorney
The Ministry of the Attorney General has created a standard form for creation of powers of attorney, which includes valuable and fairly extensive information about the nature of these documents, the attendant responsibilities, and some practical considerations. This form is not mandatory, and it is difficult to know how widely it is used, or how well known its existence is.
There was discussion in some focus groups about making this form or some version of it mandatory. It was felt that this would ensure that all individuals creating a POA would at minimum have access to a basic level of correct information. There are a number of jurisdictions that do have standard mandatory forms. The Australian state of Victoria has a mandatory form, and England and Wales’ Mental Capacity Act 2005 includes a mandatory form for personal appointments. On the other hand, others pointed out the risk that some significant number of individuals would inadvertently create invalid POAs, because they were unaware of the requirement to use the standard form. Given the low level of public understanding of this area of the law and the lengthy history during which no mandatory form has been employed, significant public education resources would be required for the transition to a mandatory form. Further, and more importantly, the use of a standard form might reduce the flexibility of these instruments, one of their major benefits. On balance, the LCO does not recommend the introduction of a mandatory form for powers of attorney.
Given that support authorizations would be both a new concept and a new instrument in Ontario, if our recommendation in this regard is implemented, the LCO believes that there must be an extra emphasis on ensuring that these instruments are clear and that basic information is provided both to those completing them and to those accepting the role. As was indicated in Chapter VI, the LCO believes that support authorizations should use a standard, mandatory form, to be developed by government, as reflected in Draft Recommendation 19 c).
Statements of commitment
One means of promoting a clear understanding among persons acting under a personal appointment of the responsibilities which they are taking on is to require them to formally acknowledge these responsibilities as part of the appointment process. This proposal was widely supported during the LCO’s public consultations.
For example, British Columbia requires that an attorney sign an acknowledgement of the appointment prior to acting. The Victorian Law Reform Commission (VLRC), in its review of capacity and guardianship laws in that Australian state, recommended that legislation require all decision-makers to undertake in writing to act in accordance with their statutory responsibilities and duties. Kerri Joffe and Edgar-Andre Montigny of ARCH Disability Centre recommend the adoption of such a requirement in Ontario, adding that such documents should be available for use in any legal or administrative proceedings regarding failure to comply with a particular duty or obligation. Support for some form of acknowledgement was also voiced during a focus group with lawyers practicing in the area.
But maybe further when the power’s actually invoked, maybe you need on the form some kind of reference to, for further information about your obligations under this appointment, go to such and such. And then you actually need a tick, you know, kind of like the… I have read and I agree, right. Now, I know online we do it, we don’t read, we tick, just to get to the next screen, but, you know, if either attached to the form there are these simplified but complete criteria, or if there’s a website that you can go to, whether that’s part of the AG’s website or some other. And you need any third party dealing on the basis of that document needs to see the check mark, I’ve read and I understand and I agree and the attorney’s signature. Again, maybe collectively, these little things might help. And so that gives you the opportunity. I mean, if the prescribed form, does it have attached to it basic educational information about the obligations and information about where you can find out more about your obligations. Powers of attorney for dummies, or, you know, create a nice little private seminar or whatever.
Focus Group, Trusts and Estates Lawyers 1, October 14, 2015
The LCO agrees that such a requirement would provide some means of informing SDMs or supporters about the nature of their responsibilities, that these are serious and significant obligations, and that they can be held to account for how they carry out their responsibilities. It also ensures that they clearly indicate their acceptance of these responsibilities and accountability. While such a requirement does add some burden to the process of putting a POA or support authorization into effect, the LCO believes that on balance, the requirement to complete a statement of commitment upon activation of a POA or support authorization is not an unduly onerous requirement in view of the potential benefit. Statements of Commitment may be effectively paired with Notices of Attorney Acting, described below: these types of documents do add to the formality of powers of attorney, but do so at relatively low-cost.
DRAFT RECOMMENDATION 21:
a) Persons accepting appointment as a substitute decision-maker or supporter under the Substitute Decisions Act, 1992, sign, prior to acting under such an appointment, a statement of commitment, in a mandatory Statement of Commitment form created by the Ministry of the Attorney General that specifies:
i. the statutory responsibilities of the appointee,
ii. the consequences of failure to fulfil these responsibilities, and
iii. acceptance by the appointee of these responsibilities and the accompanying consequences.
b) Where relevant, this acknowledgement form part of the Notice of Attorney Acting described in Recommendation 22.
2. Increasing Transparency
One of the repeated concerns voiced about POAs is the lack of transparency associated with these documents. It may be difficult to determine whether a POA exists, whether it is valid, and whether it should be in operation. This lack of transparency may be connected to risks of abuse.
Several service providers pointed out the difficulties of ascertaining who is, in fact, entitled to act on behalf of a person whose legal capacity is lacking, whether because of difficulties in locating POAs, or in determining their validity. They often connected this to shortfalls in monitoring of SDMs, because without this basic information, it is very difficult to know how many POAs are in existence and are active, who they are for, and who is acting under them.
The LCO heard from some family members who had suspected that their loved one was being abused, exploited or neglected by a person claiming to hold a POA, but who had been unable to force that person to provide a copy of the POA to verify its contents without resort to expensive legal steps. They felt that it should be much easier to verify whether a POA actually existed and the scope of its authority, without the necessity to take legal action.
There was considerable discussion of registries during the focus groups from a broad range of participants, including family members, service providers, legal professionals and persons directly affected. Many consultees felt that a registry would advance transparency and accountability, and reduce risks of abuse. The Ontario Brain Injury Association commented in their submission that,
POAs who are chosen by the individual themselves can create barriers for stakeholders trying to provide support. It can be difficult to ascertain if there is a POA and, depending on who they are, can create challenges when delivering safe, confidential services. A registry system would be something to explore for the purposes of the service providers supporting the individual and also serve to help mitigate potential abuse. This way a POA can register as such and provide the basic demographic information so that a service provider can ‘look up’ the client to ensure that the right person is supporting them and that as organizations they are collecting the right signatures for consent for services. By having the POA name and information registered formally this could potentially act as a means to reduce the risk of abuse.
Registries raise complex implementation issues, particularly in relation to considerations of cost and privacy.
A properly implemented, mandatory registry is likely to be a costly endeavour, which raises the issue of how it would be resourced. Would those registering a POA (or, potentially, a support authorization) be required to pay a fee? If so, how large of a fee would be necessary, and would it reduce access to POAs for individuals of modest means? Or would family members and service providers be required to pay to access information in the registry?
More complex yet are issues related to privacy. A registry moves POAs, to some extent, from the private realm into the public. The benefit is that this potentially increases the amenability of these instruments to scrutiny; the downside is that the private information of the person creating the POA would also be more accessible to scrutiny. Who would be entitled to access information in the registry, and what information would they be entitled to receive? Would the effect on the privacy of the grantor affect the likelihood that POAs would be created?
[E]ven having this conversation with my mum, you know, she was, like, nervous to even talk about a power of attorney. It was when she was in the very, very early stages of some kind of dementia, right, so, she had still, like, quite a bit of awareness and stuff. But she was hesitant to talk about it because I think she didn’t want to think about that in the future and if you’re going to have a process that might be prohibitive, like, someone might be saying, oh well, I don’t want the government to get involved or, you know, having to renew that every five years or three years. That might even make some people who are already naturally uncomfortable with it even more uncomfortable. Because I agree in principle to it but it might be something that actually prevents people from thinking about it or following through and doing it.
Focus Group, Community Health and Social Service Providers, September 26, 2014
Further, one of the most vexing issues service providers may face with POAs is the difficulty of determining validity. Who is to say that a grantor had legal capacity at the time of creation of a continuing power of attorney for property? Where there are multiple competing POAs (a surprisingly common experience, according to many service providers) which should be accepted and acted upon? A registry office does not imply the power to investigate a POA, but only to take note of its existence. Regardless of a registry, service providers will still be left with the dilemma of determining whether it is appropriate to act on a particular POA, where circumstances raise concerns.
Given these challenges and limitations, the LCO believes that some of the aims of a registry can be more flexibly and cost-effectively met through the mechanism of notices of attorney acting, as described below. While this mechanism would not resolve concerns about the validity of POAs, or simplify access to personal appointments by service providers, they would increase transparency about the activation of personal appointments, and permit some individuals access to information about the content of the appointment and how it is being exercised, thereby improving accountability and transparency. The LCO therefore does not recommend the creation of a registry for POAs.
Notices of Attorney Acting
The Western Conference of Law Reform Agencies, in its review of measures to prevent abuse of POAs, recommended the adoption of a statutory provision requiring the attorney under either a continuing POA to serve a “Notice of Attorney Acting” following a determination that the grantor lacks legal capacity to manage her or his own affairs and the commencement of the attorney’s exclusive responsibility to manage the grantor’s affairs, without the grantor having the ability to monitor the use of the POA or to rescind it. The grantor may designate by name in the POA the person or persons to receive the Notice, or may designate persons who are not to receive the notice. Where no person is named, the attorney must make reasonable efforts to provide notice to the immediate family members of the grantor. If there is no person to whom the attorney can give notice, the Notice must be provided to the appropriate public official.
The Nova Scotia Law Reform Commission, while embracing the concept of the Notice of Attorney Acting, has recommended that grantors ought to be able to explicitly opt-out from the notice requirement, because of the significant privacy issues at stake. The LCO shares this concern regarding privacy. While a notice would alert family members to the appointment – and now implementation – of an attorney with potential to misuse or abuse the POA, something that may not otherwise come to the attention of the other family members, overall this benefit seems outweighed by the risk of unnecessary and ill-intentioned disputes or the revelation of private information to persons without a close ongoing relationship. Not all family members are close and not all play a positive role, and a default notification may create risks of conflict or misuse, as well as violations of privacy, that on balance outweigh the additional transparency created by default notifications.
The Law Reform Commission of Nova Scotia raised, in its Discussion Paper, further concerns about the timing of the Notice:
Practically speaking, requiring notice to be sent only after the donor is declared incapacitated assumes that the donor will not need the assistance of others to ensure that the attorney is properly undertaking his or her duties before then. As we have emphasized throughout this paper, this will not always be the case. There may be a long time between when the donor [sic] begins to act for a vulnerable donor and when the donor is finally determined to be incapacitated – if indeed the donor is ever “declared” to be incapacitated at all. In our view, the notice should be sent within a reasonable time after the attorney has begun to exercise any authority granted by the EPA [Enduring Power of Attorney]. The requirement would also apply to any alternate attorney who assumes the appointment at a later date.
However, in its Final Report, the Nova Scotia Law Reform Commission recommended tying issuance of the notice to the initial onset of incapacity, on the basis that the law does draw a bright line between capacity and incapacity, and protects the autonomy of the donor so long as capacity exists: it is only upon a declaration of incapacity that protection interests come into play.
It should be kept in mind that under the SDA, while POAPC only come into effect upon incapacity, POA for property may come into effect immediately and endure into incapacity, or may come into effect upon a determination of incapacity, depending on how the POA is drafted. A POA for property may never involve a declaration of incapacity. In the case of Zonni v. Zonni Estate, the grantor of a continuing power of attorney for property retained capacity until her death: while the POA was effective, the appointed attorney was never active, and the Court rejected an effort to hold the attorney liable for property transactions undertaken subsequent to the effective date of the POA. In other cases, persons acting under a power of attorney have been found responsible for all transactions undertaken once some duties have been assumed, even if the grantor continues to attend to some functions. In the view of the LCO, the time at which the attorney begins to exercise authority, and therefore assumes liability, under a continuing POA may therefore be the appropriate point in time at which to deliver a Notice of Attorney Acting.
The LCO concurs that Notices of Attorney Acting can provide a reasonably low-cost and flexible means of increasing transparency and accountability for persons acting under a POA. A careful balance must be struck among the differing needs of grantors. Not everyone will want to have family members notified, whether for good reasons or bad. Automatic notification schemes risk alerting abusers or creating unnecessary conflict. Where a POA names one or more individuals to receive a Notice of Attorney Acting, that Notice ought to be accompanied by the Statement of Commitment recommended above.
DRAFT RECOMMENDATION 22: The Ontario Government amend the Substitute Decisions Act, 1992 to require that at the time an attorney begins to exercise authority under a power of attorney created under that Act, he or she should be required to deliver a Notice of Attorney Acting, with the following characteristics:
a) the Notice must always be provided to the grantor;
b) the grantor may give express direction in the power of attorney that no Notice is to be delivered to persons other than the grantor or to certain specified individuals;
c) unless the grantor directs otherwise in the power of attorney, the Notice must be delivered to:
i. the spouse or common law partner of the grantor;
ii. the parents of the grantor;
iii. the adult children of the grantor;
iv. the adult siblings of the grantor; and
v. any person named as monitor in the power of attorney, if not one of the above listed persons.
d) the Notice of Attorney Acting be in a standard and mandatory form as developed by the government, and be accompanied by the Statement of Commitment.
3. Enabling Monitoring
As the brief review of Ontario law indicates, the mechanisms available for monitoring the activities of attorneys are limited, with the onus falling on grantors to carefully consider potential appointees and to exercise caution in their appointments. The mechanisms that exist for addressing abuse or misuse are largely “passive” rather than proactive; for example, while the duty to maintain accounts is important, those acting under a POA may never be required to share those accounts with anyone. As a result, it may be difficult to detect abuse when it is occurring. For this reason, there was considerable interest during the consultations in how to increase oversight or scrutiny of SDMs.
Annual Reporting Requirements
Ontario requires both guardians and attorneys (whether for property management or personal care) to keep records of their activities. The Court may, on application, order that the accounts of a guardian or attorney for property be passed, in the same manner as the passing of executors’ and administrators’ accounts. The Court may, upon the passing of accounts, take a variety of steps, including directing the PGT to bring an application for guardianship of property, ordering a capacity assessment of the grantor of a POA, or suspending or terminating the POA or guardianship.
In some jurisdictions, guardians and in some cases attorneys for property are required to submit accounts annually. Joffe and Montigny advocate for a broad reporting requirement for all decision-makers:
Decision-makers’ reports should indicate what they have done to promote the autonomy and decision-making capacity of the ‘incapable’ person, and how they have encouraged the person to be involved in the community. Reports should include any efforts the decision-maker has made to involve supportive family or friends of the ‘incapable’ person in enhancing the person’s quality of life. Decision-makers should also report any concerns expressed by the ‘incapable’ person along with an account of what steps were taken to address those concerns.
Currently, under the SDA, ‘incapable’ persons may request a passing of accounts. Instead, under the new legal capacity regime, the obligation for a decision-maker to pass accounts should be made mandatory and included in all decision-making appointments or orders, regardless of whether anyone has expressed concerns about the decision-maker’s actions or requested a passing of accounts. Decision-makers must be required to pass their accounts at regular intervals, such as annually or more often, depending on the circumstances of the ‘incapable’ person. Accounts may be submitted with reports, in order to minimize the incidences of monitoring.
Regular reporting requirements were discussed in a number of the LCO’s focus groups. While there was some feeling that regular reporting requirements would induce SDMs to take their responsibilities more seriously, and could deter some abuse, there was concern that annual reporting requirements would be too onerous for SDMs. To be meaningful and amenable to review, the formatting and precise content of accounts would have to be standardized, requiring SDMs to master the details of these requirements.
As well, for reporting requirements of this sort to be more than an administrative burden for SDMs, there would have to be some meaningful scrutiny of the accounts submitted, as well as the ability to provide some information and support to SDMs attempting to meet this requirement. This indicates that some significant staffing apparatus would be required for this function.
It is the LCO’s view that, given limited resources, available resources would be better deployed to the priorities of preventing misuse of powers through education and information, and of enabling more effective response to abuse through enhanced complaints mechanisms, rather than devoting extensive resources to oversight of the majority of compliant SDMs. The LCO therefore does not recommend the institution of regular reporting requirements for SDMs.
It has been suggested that Ontario’s legal capacity and decision-making systems would benefit from some form of a random audit program.
Joffe and Montigny, for example, recommend the establishment of a Monitoring and Advocacy Office with broad powers that include monitoring and overseeing of decision-makers, addressing situations in which decision-makers are abusing or misusing their powers, and dealing with complaints from persons lacking legal capacity. In their vision, this Office would receive and review reports from decision-makers, and would have the power to launch investigations or issue compliance orders in response to those reports. The Office would also manage a “Visitor” system, and would be empowered to investigate and address concerns raised by a Visitor. Visitors would consist either of trained volunteers or professionals who provide rights advice to persons whose legal capacity is lacking or in doubt.
A number of common-law jurisdictions outside of Canada have Visitor programs of varying scope and powers. For example, under the Mental Capacity Act, 2005 (MCA), England and Wales have a system of “Court of Protection Visitors”. These Visitors, some of whom are designated “Special Visitors” with expertise in capacity-related disabilities, may be ordered by the Court of Protection to visit deputies (who are the equivalent of Ontario’s guardians), attorneys or the individuals for whom these persons are acting and to prepare reports for the Public Guardian on issues as directed. The MCA’s Code of Practice describes their role as follows:
The role of a Court of Protection Visitor is to provide independent advice to the court and the Public Guardian. They advise on how anyone given power under the Act should be, and is, carrying out their duties and responsibilities. There are two types of visitor: General Visitors and Special Visitors. Special visitors are registered medical practitioners with relevant expertise. The court or Public Guardian can send whichever type of visitor is most appropriate to visit and interview a person who may lack capacity. Visitors can also interview attorneys or deputies and inspect any relevant healthcare or social care records. Attorneys and deputies must co-operate with the visitors and provide them with all relevant information. If attorneys or deputies do not co-operate, the court can cancel their appointment, where it thinks that they have not acted in the person’s best interests.
In addition to investigating abuse, Visitors can assess the general wellbeing of the individual and provide advice and support to attorneys and deputies.
The Visitor program in England and Wales has a broader function within that jurisdiction’s legal capacity and decision-making system than auditing for compliance, and indeed is closely tied to the operation of the specialized Court of Protection and its dispute resolution and rights enforcement mechanisms.
The “Community Visitors” system in the Australian state of Queensland is focussed on persons in congregate settings, such as long-term care homes and mental health facilities. This system has both oversight and complaints functions. As part of their oversight functions, they regularly visit mental health facilities and other sites (other than private homes) where individuals with diminished capacity reside or receive services to review and provide reports on matters including the following:
· the adequacy of services for the assessment, treatment and support at the site;
· the appropriateness and standard of services for the accommodation, health and wellbeing of consumers at the site;
· the extent to which consumers at the site receive services in the way least restrictive of their rights;
· the adequacy of information given to consumers at the site about their rights; and
· the accessibility and effectiveness of procedures for complaints about services for consumers at the site.
Visitors have a responsibility to inquire into and seek to resolve complaints, and where complaints cannot be resolved, to refer them promptly to the appropriate body for investigation or resolution or both. They have broad powers to “do all things necessary or convenient to be done to perform the community visitor’s functions”, including entering visitable sites without notice, requiring the production of information or documents, and meeting with consumers alone.
The Visitor program adopted in Queensland is very broad, with implications far beyond legal capacity and decision-making. It addresses issues of both systematic and individual advocacy within a wide range of congregate settings. It responds to similar concerns and in many ways parallels the Health Care Commission proposed by the Advocacy Centre for the Elderly in a 2009 paper commissioned by the LCO as part of the project on Law as It Affects Older Adults. While there are many interesting aspects to Queensland’s Visitor system and to the proposed Health Care Commission, in the LCO’s view they raise issues that go beyond the scope of this current project and would require considerable additional research and consultation.
A comprehensive random auditing program would be both resource intensive and intrusive on the privacy both of families and persons directly affected, and therefore the LCO does not recommend such a program. The applicability and viability of a limited type of Visitor program focused on identifying least restrictive alternatives is addressed in Chapter IX, as part of the discussion of reforms to external appointment processes.
Under the British Columbia Representation Agreement Act, a person creating a representation agreement must name a monitor, unless the representative is the Public Guardian and Trustee, a spouse or a trust company or credit union, or the person has named two or more representatives who are required to act jointly. A monitor must make reasonable efforts to determine whether the representative is complying with the statutory requirements. The monitor is entitled to visit and speak with the represented adult and to access records and accounts. If the monitor has reason to believe that the representative is not complying with the requirements of the Act, he or she must promptly inform the Public Guardian and Trustee. There are no similar requirements for monitors for supported decision-making arrangements in Alberta or the Yukon. Manitoba has similarly provided attorneys with a duty to provide an accounting either to a person named in the POA, or, where no person is so named, to account annually to the nearest relative. The person receiving the accounting has no duty or liability with respect to the accounting.
There was considerable interest during the focus groups in the concept of a monitor, particularly in those focus groups with persons directly affected and with family members. It was felt that this could provide a relatively simple and low-cost reassurance of some oversight of the activities of individuals acting under a personal appointment, as well as an incentive to take more seriously the requirements of the legislation.
But the idea of that monitor is excellent, it’s like in your treatment plan, that one that you’ve decided, I want to be in this hospital and no other, and all this, your monitor can look, yes, he’s in that hospital, yes he’s being treated only by this doctor, that’s great, that’s been taken care of, okay, this person’s been activated, so we’re going to water the plants and we’re going to take care of the pets, that’s great, this has been done, and that really seems really valuable.
Focus Group, Individuals with Mental Health Disabilities, August 21, 2014
It was pointed out that many individuals do not have a large circle of trusted friends and family: it may be sufficiently difficult to find anyone to act under a power of attorney, let alone a second person to act as a monitor. Even where a person does have family, those family may not play a positive role in the life of the grantor, and so it would be risky to automatically entitle them to access the highly personal information of the grantor, through a default such as that incorporated in Manitoba’s legislation.
Therefore, it was felt that monitors should not be mandatory for POAs. However, it was recommended that public information, including the standard POA form prepared by government, provide information about and strongly encourage grantors to designate a monitor, and that there be clear legislative requirements surrounding the role of a monitor. A participant in the focus group for persons with mental health disabilities commented that while monitors could be implemented in a way that is helpful, they also run the risk of being overly adversarial and interventionist, and therefore unhelpful, suggesting that “if you’re going to have that … put into practice, there again needs to be some ethical guidelines around that”.
For monitors to be an effective option, they should have not only clear statutory duties, but also the powers necessary to be able to perform their appointed role. A monitor must have the right, for example, to access the information necessary to carry out the role and to meet with the person who has created the appointment.
Chapter VI discussed the issue of monitors in the context of personal support authorizations. Because of the differences in the roles of supporters and substitutes, the risks of abuse and misuse associated with supported decision-making arrangements differ in some (although certainly not all) ways from those associated with substitute decision-making. The success of a supported decision-making arrangement depends entirely on the quality of the decision-making process employed, rather than on the outcomes, making it more difficult to evaluate these arrangements objectively. These differences would also affect the role of a monitor in a supported decision-making arrangement. Because a supporter is not intended to make decisions, supporters are not required to keep the same kind of records of their activities that an SDM is: a monitor would be focussed on ensuring that the decision-making process was appropriate and that the supported person continued to find that the arrangement met his or her needs. Because an assessment of the success of supported decision-making arrangements is a qualitative endeavour, the LCO believes that the inclusion of a trusted monitor in the actual supportive arrangement, thereby permitting on-going knowledge of the process, is a vital safeguard.
DRAFT RECOMMENDATION 23: The Ontario Government amend the Substitute Decisions Act, 1992 to
a) identify the option of grantors of a power of attorney to name at least one monitor;
b) require the naming of a monitor as part of a support authorization; and
c) specify the following duties of a monitor for either a power of attorney or a support authorization:
i. a responsibility to make reasonable efforts to determine whether the attorney or supporter is complying with the statutory requirements for that role;
ii. keep records of their activities in this role;
iii. maintain the confidentiality of the information accessed as part of this role, except as necessary to prevent or remedy abuse or misuse of the role by a person acting under a power of attorney or support authorization; and
iv. to promptly report concerns to the Public Guardian and Trustee where there is reason to believe that:
· the person appointed under a power of attorney or support authorization is failing to fulfil their duties or is misusing their role,
· the grantor of a power of attorney or creator of a support authorization is legally incapable, and
· serious adverse effects as defined in the Substitute Decisions Act, 1992 are resulting to the grantor or creator;
d) give monitors the following rights, with appropriate recourse to adjudication in cases of non-compliance:
i. visit and speak with the person who has appointed them as monitors; and
ii. to review accounts and records kept by the attorney or supporter.
Recommendations for reform of Ontario’s mechanisms for addressing abuse and misuse of decision-making powers require a careful balancing of a number of objectives, including the effective use of limited resources; maintaining the accessibility of planning tools; avoiding over-burdening well-intentioned family members and friends who take on statutory responsibilities; promoting understanding of rights, risks and responsibilities among all those involved; and reducing the incidence of abuse and misuse and improving the means for identifying and addressing it.
The LCO’s draft recommendations have focused on identifying practical options that can be implemented at low-cost, and without adding unreasonable burdens on persons acting under a personal appointment, while still promoting greater clarity, transparency and oversight. In particular, the LCO recommends that those appointed under a personal appointment document be required to complete a Statement of Commitment at the time that they take up their responsibilities under the appointment, and that grantors be encouraged to identify individuals who must be notified at the time a person begins to act under a personal appointment. As well, the LCO recommends that the role of monitor be formalized and that use of this mechanism be encouraged for a POA and required for support authorizations.
As was noted at the outset of this Chapter, concerns regarding abuse and misuse of powers of attorney have been attributed, to a significant degree, to pervasive misunderstanding and ignorance about these important documents. Some of the reforms proposed in this Chapter, such as the Statements of Commitment, are intended in part to ameliorate this problem. Chapter XI addresses problems of information and education in the broader context of this area of the law.
This Chapter focused on the creation and contents of personal appointments: the following Chapter, Chapter VIII, examines Ontario’s current institutions and processes for enforcing rights and resolving disputes. Where there are disputes about the validity of a power of attorney or the actions of an attorney, for example, these are the institutions and processes to which families resort for redress and resolution. The reforms proposed in this Chapter should therefore be considered also in the context of the draft recommendations set out in Chapter VIII.
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