A. Introduction and Background
Under current Ontario law, where a person does not have the legal capacity to make a particular decision or type of decision and a substitute decision-maker (SDM) must be identified, in the vast majority of cases that SDM will be a member of the individual’s family or a close friend. There are a relatively small number of individuals who have as their SDMs a professional (such as a lawyer, for example), an organization (such as a trust company) or the government (through the Public Guardian and Trustee (PGT)).
The Discussion Paper, Part Three, Ch II, raised the question of whether, in light of changing economics, family structures and demographics, Ontario ought to expand the range of options for appointments as SDMs available to individuals. This Chapter examines that issue.
It should be emphasized that this discussion does not include supported decision-making arrangements, in which the individual makes the final decision with assistance from others. It is the view of the LCO that supported decision-making requires close, trusting personal relationships. While many persons granted powers of attorney (POAs) or appointed as guardians are in trusting relationships with the individual for whom they make decisions and may be selected for such reasons (as discussed below), this is not necessarily the case. Furthermore, where no such relationships exist or they are not appropriate as a basis for decision-making, the more formal accountability mechanisms associated with substitute decision-making are essential.
B. Current Ontario Law
1. Legislative Overview
The provisions of Ontario law regarding who may act as a substitute decision-maker are outlined at length in the Discussion Paper, Part Three, Ch. II. This section is therefore intended only as a brief review, and not a comprehensive discussion.
Powers of Attorney
The grantor of a power of attorney (POA) under the Substitute Decisions Act, 1992 (SDA) faces only minimal restrictions on whom he or she may appoint in that role. These include requirements that the holder of the POA be of a minimum age, be legally capable, that the PGT may only be appointed with permission in writing, and, in the case of a power of attorney for personal care (POAPC) that certain conflicts of interest be avoided. The SDA explicitly contemplates either a guardian or a power of attorney for property taking compensation for those services, in accordance with a prescribed fee scale; no such specific provision is made for compensation for SDMs for personal care.
As was described in Chapter VII, as personal appointments, there is no oversight of persons acting as POAs per se. Where a professional such as a lawyer or accountant or a trust company takes on this role for compensation, the oversight mechanisms are those associated with the profession or institution, to the degree that they are considered applicable to the activity of providing substitute decision-making.
Guardians for property or personal care may be appointed through an application to the Superior Court of Justice. The court must consider the following statutory directions:
· The court shall not appoint a person who provides health care or residential, social, training or support services to the incapable person for compensation, with limited exceptions, such as if the individual providing services is the person’s spouse or partner, or the attorney under the POA.
· The court shall not appoint the PGT unless the application proposes the PGT as guardian, the PGT consents, and there is no other suitable person who is available and willing to be appointed.
· The court shall consider whether the individual being proposed as guardian is already acting under a POA for the person, the wishes of the person involved if they can be ascertained, and the closeness of the relationship between the proposed guardian and the person.
· A guardian for property must reside in Ontario, unless the out-of-province resident provides security in a manner approved by the court for the value of the property to be managed.
The Court does, in some situations, appoint trust companies to act as guardians for property, generally in cases where there are significant assets that require skilled management and often where there is discord within the family.
Replacement of Statutory Guardians for Property
The process by which the PGT may be appointed as a statutory guardian for property is described in Chapter IX. Where the PGT is the statutory guardian for property, an application may be made to replace the PGT as guardian by the following persons:
· the person’s spouse or partner;
· a relative of the person;
· an individual holding a continuing POA for property for that person, if that POA was completed prior to the certificate of incapacity and did not give the attorney authority over all of the person’s property; or
· a trust company, if the person has a spouse or partner who consents in writing.
The PGT reviews the application, and if the PGT is satisfied that the management plan submitted by the applicant is appropriate and that the applicant is suitable, the PGT shall appoint the applicant as the replacement statutory guardian. The SDA directs the PGT to consider, in reviewing the application, the legally incapable person’s current wishes if they can be ascertained and the closeness of the relationship between the applicant and the person.
The Health Care Consent Act, 1996
The Health Care Consent Act, 1996 (HCCA) sets up a simple system for determining the identity of the SDM where one is required. The statute lists, in descending order of preference, those who may act as decision-makers where a person has been found to lack capacity for a particular necessary decision, as follows:
1. the person’s guardian of the person, if the decision required falls within the guardian’s scope of authority;
2. the person’s attorney for personal care, if the decision required falls within the attorney’s scope of authority;
3. a representative appointed by the Consent and Capacity Board (CCB), if the decision falls within the representative’s scope of authority;
4. the person’s spouse or partner;
5. a child or parent of the person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of a parent;
6. a parent of the person who has only rights of access;
7. a sibling of the person;
8. any other relative of the person (including those related by blood, marriage or adoption).
An SDM appointed through this hierarchical list must be
1. capable with respect to the decision to be made;
2. at least 16 years of age, unless he or she is the parent;
3. not prohibited by court order from having access to or giving or refusing consent on behalf of the person;
4. available; and
5. willing to assume the responsibility.
If no person identified through the list meets the requirements, the PGT shall make the decision.
2. The Preference for Family and Friends
A review of the legislation quickly indicates a strong preference for family as SDMs. This is not surprising: the role is a difficult and demanding one which not infrequently spans many years and may be closely entwined with caregiving choices and responsibilities. Families can bring a deep personal knowledge of the individual to guide them with decision-making and assist with the practical and emotional aspects of the task. As well, they can often bring the profound commitment to the wellbeing of the individual that the role requires. It is a role imbued with trust and responsibility, and for many people, families are where they are most comfortable placing that trust and responsibility.
Nonetheless, some individuals either do not have family or friends who are appropriate, willing or able to take on this role, or would prefer that the role be carried out by someone with professional skill and objectivity. Trust companies will act as POAs for property for some existing clients, and will also sometimes be appointed as guardians for property in court proceedings. Lawyers and accountants will also sometimes agree to act under a power of attorney for property for their clients. Trust companies are, of course, heavily regulated institutions. Lawyers and accountants are guided by their professional standards and are subject to the oversight of their regulatory bodies, although not necessarily with respect to this role.
3. The Role of the Public Guardian and Trustee
The PGT may become guardian for a person who lacks legal capacity in two ways:
1. Statutory Guardianships for property: where a statutory guardianship results from a finding of legal incapacity to manage property under Part III of the Mental Health Act (MHA), or by a Capacity Assessor under section 16 of the SDA, the PGT will automatically become the guardian of property, unless there is an SDM already in place through a valid POA or guardianship. The PGT will continue as guardian so long as one is required, unless a replacement is approved, as described above.
2. Appointment by the court: This Interim Report deals at greater length in Chapter VIII with powers of the PGT to conduct investigations where there are concerns that a person lacks capacity and serious adverse effects may or are occurring as a result. The important point here is that if, as a result of the investigation, the PGT has reasonable grounds to believe that the person is legally incapable with respect to property or personal care, and that the prompt appointment of a temporary guardian is necessary to prevent adverse effects, the PGT must apply to the Court for an order appointing it as temporary guardian. More broadly, the Court is empowered to appoint the PGT as guardian either of property or personal care where the application proposes the PGT as guardian, the PGT consents, and there is no other suitable person who is available and willing to be appointed.
The PGT will also act as a decision-maker of last resort under the HCCA, as described above, and may consent (in rare circumstances) to appointment under a POA.
What is important to note from the above is that the PGT acts as decision-maker in two broad circumstances: where there is no other appropriate, available and willing person to act, and where, as with statutory guardianships and guardianships resulting from investigations, there is perceived to be a need for an entity that can act quickly to prevent dispersal of property (as with statutory guardianships) or to end ongoing abuse, neglect or exploitation. The appropriateness of having the PGT act as, essentially, an SDM of first resort through its automatic appointment through statutory guardianship is addressed in Chapter VIII. This Chapter will focus on the PGT’s role as an SDM of last resort.
In 2013-2014, the PGT was acting for 21 clients under personal guardianship (3 on a temporary basis). The PGT notes that the court will appoint it to make personal care decisions only “very occasionally” and in most cases to “remove the individual from a situation of harm or to prevent access by third parties who are abusing the person”.
It is more common for the PGT to act as guardian of property, most frequently through statutory guardianships. In 2013-2014, the PGT was a court-appointed guardian of property for 318 individuals. It was a statutory guardian for property for 4,881 individuals who had received certificates under the MHA, and for 5,567 individuals who had received a certificate of incapacity through a Capacity Assessment in the community. As well, it was acting for a small number of individuals (31) where a replacement statutory guardian had died, resigned or become legally incapable with respect to property management. In 2013-2014, the PGT opened 1,888 new property guardianship files, 841 through MHA certification and 1,032 through Capacity Assessments.
In 2011-2012, the PGT made 4,664 treatment decisions, under its responsibility to do so where there is no one who meets the HCCA requirements.
The Annual Reports of the PGT point to a steady and significant increase in the caseload of the PGT since 2000, both in absolute numbers and the number of clients as a percentage of Ontario’s adult population, likely reflecting Ontario’s aging population, as well as other demographic shifts such as smaller family sizes and increased family mobility. The PGT’s Annual Reports also point to increased complexity in the client files handled.
C. Areas of Concern
The LCO heard a number of concerns about the options for potential SDM appointees available to individuals.
The complexities and challenges of the role: The role of an SDM can be extremely challenging. Some lawyers commented to the LCO that if people really understood what they were taking on when they agreed to act under a POA, far fewer people would be willing to do this. In addition to the demanding legal requirements, SDMs often face many practical, emotional and ethical challenges. Decisions may be high-stakes, involve complicated information and require rapid response. Decisions may well need to be made over the objections of the person who is intended to benefit over the long-term, so that the emotional costs may be high: for example, while admission to long-term care may be necessary, it is very often not a welcomed decision. Not infrequently, despite the guidance of the legislation, it will be far from clear what the “right” thing is to do in a particular circumstance. And as discussed in Chapter XI, there are relatively few practical supports for those taking on the role of substitute decision-maker.
In conversations with trust companies that act under POA for property or as guardians for property, these professionals also emphasized the challenges of the role, despite their expertise in financial management and the benefit of accumulated experience. The shifting nature of legal capacity, the complexity of the law, the difficulties of family dynamics and the challenging nature of some individuals’ needs all combine to make this a demanding role, even in the best circumstances.
Individuals who are socially isolated: It is difficult to tell how many individuals there are who have no family members or friends who would both be appropriate SDMs and who are willing to act as such. Because of the PGT’s role as statutory guardian, one cannot conflate the PGT caseload with the population of individuals who require “last resort” decision-making. Throughout the consultations, the LCO repeatedly heard concerns about growing numbers of individuals who are socially isolated and have no appropriate person to act as an SDM if necessary. Families are more often geographically separated as work and individuals become increasingly mobile. Families are smaller, divorce is more frequent, and fewer individuals have children. As lifespans lengthen, older people may find themselves outliving their families and friends. As well, the challenges and stigma associated with certain types of disabilities may tend to leave these individuals at greater risk of social isolation. One long-term care home administrator with whom the LCO spoke indicated that she was aware of a long-term care home in which approximately one-third of the residents were having their property decisions made by the PGT.