A. Introduction
Among the most significant issues raised in the LCO’s preliminary consultations for this project are those related to newly developing approaches to decision-making, such as supported and co-decision-making. These approaches represent a fundamental shift in approaches to the law, and have significant implications for almost every aspect of this area of the law. Advocates for these forms of decision-making would like to see one or both of them included in Ontario’s laws, whether as one option among a number, as a preferential option, or as replacing substitute decision-making altogether.
This chapter will examine the basic elements of supported and co-decision-making approaches, drawing some comparisons with substitute decision-making; outline some specific models for these forms of decision-making; and consider some implications and implementation challenges.
These newer approaches to decision-making are closely related to the shifts in conceptions of capacity that were outlined in Part Two, Chapter I, and have their basis in a social model of disability and human rights critique of existing approaches to legal capacity, decision-making and guardianship.
The various approaches to decision-making are based in differing assumptions and experiences about the nature of decision-making, the role of law, the characteristics of intimate relationships, and the nature of disability and aging. Those who spend much time on issues related to disability, aging and legal capacity tend to share a strong commitment to the principles of dignity, autonomy, inclusion and participation, and the right to be free from exploitation and abuse. However, in practice there may be profound differences in how these principles are understood and on the best way to achieve them.
Some of these differences in approach are rooted in the divergences in experience and circumstance among those affected by the law of legal capacity, decision-making and guardianship. The needs and aspirations of a young adult with an intellectual disability in this area will be very different from those of a widow who is living with mid-stage Alzheimer’s Disease and residing in a long-term care home, and these will differ again from those of a person who has been living for a number of years with a severe and recurring mental health disability that has significantly affected his or her social and economic resources. The nature of an impairment, the life stage at which it occurs and the point in the life course at which resort must be made to legal capacity and decision-making laws will have very significant implications for the extent and nature of a person’s relationships, the financial resources available (and the resultant temptations to abuse), and the nature and availability of appropriate supports and resources. All of these will in turn have significant implications for the way in which individuals will encounter the laws in this area. It is essential, then, that thoughtful and respectful attention be paid to these differences in perspective and experience in considering approaches in decision-making, and that the possibility be explored that one size may not, in fact, fit all those who fall under these laws.
It is also very important to take into account the grounded experience of those who provide daily supports to those whose disabilities may have affected their ability to access, retain, assess and communicate information. While laws play a fundamental role in expressing and shaping values and norms, those who are providing decision-making supports of various kinds are not likely to have an in-depth awareness of the legislation or to regularly resort to it in resolving their practical challenges. Often, they will be guided by their own values and set of ethics, the practicalities of the situation, the skills they have and the nature of their relationships,. And of course, their own contexts will shape how they understand and carry out these roles: their cultures, their socio-economic status, the family and social supports they themselves have, the resources available in the communities in which they lives, and many other factors. Many family and friends who are acting under a power of attorney or as a guardian will in practice be carrying out their role in a way that looks very like what is envisioned by advocates of supported decision-making; equally, those acting as supporters may at times find themselves performing their roles in ways that functionally differ very little from those of substitutes. In considering particular law reforms, a key consideration should be the practical impact on the lives of persons who lack legal capacity and those surrounding them.
Finally, Part One, Chapter I of this Paper included a brief discussion of the multiple aspects of decision-making. Decision-making includes both processes and outcomes, and both a public and a private aspect. In theory, an ideal approach to decision-making would maximize all of these aspects; in practice, they are not always so easily reconciled. Different approaches to decision-making will balance and prioritize these aspects differently.
These new forms of decision-making are still evolving. Terminology varies, sometimes widely: multiple terms are often used to describe the same concept and conversely, the same terms are frequently used to refer to approaches that have very different practical implications. There are ongoing conceptual and philosophical debates. The role of the LCO is to develop practical, implementable and forward-looking proposals for law reform in this particular context, in light of the principles and considerations in the Frameworks. The purpose of this Chapter is not to exhaustively explore the concepts of supported and co-decision-making and the philosophy underlying them, but to consider potential practical implications for reform to Ontario’s law, a law which is grounded in a particular history and which operates in the context of a specific set of institutions, resources and constraints.
As a starting point for the discussion of alternative approaches, this Chapter will discuss the provisions of the Convention on the Rights of Persons with Disabilities (CRPD) related to approaches to decision-making, and then will briefly outline the key aspects of Ontario’s current substitute decision-making approach, prior to more in-depth examinations of supported and co-decision-making.
B. The Convention on the Rights of Persons with Disabilities
Central to this discussion is the CRPD which Canada has ratified, and in particular Article 12, which has been reproduced and discussed in Part One, Chapters I and Part Two, Chapter I. Article 12 requires States Parties to:
- Recognize persons with disabilities as persons before the law;
- Recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life;
- Take appropriate measures to provide access for persons with disabilities to the supports they may require in exercising their legal capacity;
- Ensure that all measures related to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse. These safeguards must ensure that measures related 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.
- Take all appropriate and effective measures, subject to the provisions of the Article, to ensure the equal rights of persons with disabilities in a range of areas, including owning or inheriting property; controlling their own financial affairs; having equal access to bank loans, mortgages and other forms of financial credit; and ensuring that persons with disabilities are not arbitrarily deprived of their property.
There has been considerable debate about the implications of Article 12 for approaches to decision-making. For the purposes of this Chapter, the key issue is whether the CRPD is best understood as recognizing an inalienable and non-derogable right for persons with disabilities to be considered legally capable at all times, or whether it protects them from discriminatory determinations of incapacity based on disability status. The consequences arising from these two interpretations are quite different. The first interpretation would eliminate substitute decision-making as a valid approach. A person would retain the ultimate legal authority to make decisions in all circumstances and the receipt of supports would be premised on consent.[308] The second interpretation would require governments to design and apply capacity laws in a non-discriminatory manner.[309] Opinions differ as to what specifically this second approach entails, although at minimum it would seem to include protection of specified equality rights, access to supports to decision-making, and provision of appropriate safeguards against abuse related to the exercise of legal capacity.
Canada’s Declaration and Reservation on the CRPD states that “Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives”.[310] It declares Canada’s understanding that Article 12 permits substitute decision-making arrangements as well as those based on the provision of supports “in appropriate circumstances and in accordance with the law”,[311] and reserves the right for Canada “to continue their use in appropriate circumstances and subject to appropriate and effective safeguards”.[312]
C. Substitute Decision-Making in Ontario
1. Approaches to Substitute Decision-making in Ontario
Substitute decision-making remains the most common approach to decision-making in common-law jurisdictions. However, it varies quite significantly between jurisdictions. Due to the thorough law reform efforts of the 1980s and 1990s, Ontario’s approach to substitute decision-making is relatively modern, coherent and progressive. The key elements of Ontario’s system, for the purpose of this Chapter, are outlined below. As they are discussed in detail in other chapters, these elements are referred to in summary fashion here.
Cognitive capacity threshold: As is outlined in Part Three, Chapter I, the threshold for legal capacity is based on the individual’s ability to “understand and appreciate” the information relevant to a particular decision. While legal capacity may evolve or fluctuate, and while it is specific to particular decisions or types of decisions (i.e., it is not “plenary”), it is an all-or-nothing quality. A person either has legal capacity to make a particular decision or does not. Where an individual does not have legal capacity to make a particular decision or type of decision, a surrogate (the “substitute decision-maker” or SDM) will make the decision on behalf of that person, taking with it related responsibilities.
Procedural protections for persons who may lack legal capacity: While protections may not be complete or ideal, as is described in Part Three, Chapter II, Ontario’s statutory scheme pays considerable attention to procedural protections for persons who may lack capacity, including mechanisms for providing information to the individual and for challenging decisions about legal capacity.
Opportunities for individuals to choose or have input in the selection of a substitute: Part Three, Chapter II describes the process of identification of an SDM. Ontario’s legislation aims to make it relatively simple and inexpensive for individuals who are legally capable to select their own SDM for property, personal care or treatment decisions through the creation of powers of attorney (POA). Ontario places relatively few restrictions on the content of POAs or requirements for their valid creation. As well, when guardians are identified, either through the statutory guardianship process’s replacement provisions or through court-appointments, the Public Guardian and Trustee (PGT) and the court respectively are required to consider the wishes of the person who is being placed under guardianship.
Focus on trusting relationships as the foundation of substitute decision-making: As is described in Part Three, Chapter II, Ontario’s statutory scheme includes a number of mechanisms intended to give priority in identifying SDMs to existing relationships of trust and intimacy. For example, the hierarchical list of SDMs in the Health Care Consent Act (HCCA) gives priority, where an SDM does not already exist, to family members. Similarly, the replacement provisions for guardianships under the SDA focus on family members.
Duties of substitute to promote participation and consider wishes and preferences: Under the SDA, both attorneys under a POA and guardians are directed to promote the participation in decision-making of the person. For personal care decisions under the SDA and for all decisions under the HCCA, SDMs must consider the “prior capable wishes” of the individual, the values and beliefs held while the person was capable, and current wishes where they can be ascertained.
2. Critiques of Substitute Decision-making
In considering critiques of substitute decision-making as an approach, it is important to focus on those that are relevant to Ontario’s system of substitute decision-making and thus to this project. Further, this section will focus on critiques of substitute decision-making as an approach, as opposed to concerns about how substitute decision-making is implemented in practice, as these concerns are dealt with throughout other Chapters of this Paper.
It should be noted that for the majority of those consulted during the LCO’s preliminary consultation, the issues of concern were not with the substitute decision-making approach per se but with its implementation on the ground. That is, these consultees did not take issue with how the statutes defined the roles of SDMs or detailed their responsibilities. Rather, concerns focussed on whether the statute and its accompanying policies and practices ensured that these roles and responsibilities were actually carried out as specified. From this point of view, if SDMs had the supports and oversight to ensure that they thoroughly carried out their duties as outlined in the SDA and the HCCA, the system would work well.
Other consultees expressed foundational concerns about the substitute decision-making approach, arguing that it violates the fundamental rights of persons with disabilities. To a significant degree, critiques of substitute decision-making overlap with criticisms of the functional and cognitive approach to capacity, outlined in section B.4 of Chapter III; in fact, most critics do not separate the two. In this view, substitute decision-making is (to greater or lesser degrees, depending on the critic and the particular form of substitute decision-making being examined) inherently paternalistic and disempowering for persons with disabilities, based on ableist attitudes, and violating the equality and non-discriminatory guarantees in the Charter of Rights and Freedoms and other human rights instruments.
There is also a therapeutic critique of substitute decision-making. These critiques of modern substitute decision-making systems raise concerns about whether such a system, based as it is on the transfer of a person’s decision-making authority to another, can achieve the right balance between autonomy and other aspects of well-being. Substitute decision-making rests on the assumption that the substitute decision-maker can make decisions that will better promote the well-being of the individual who has been determined to be legally incapable than that individual can make for his or her self, coupled with the belief that this transfer of decision-making authority will not, in and of itself, “involve excessively high costs to the wards’ [meaning the persons under guardianship] well-being simply by virtue of pre-empting the wards’ decision-making power.”[313] However, some have argued that substitute decision-making can have negative effects on the well-being of a person simply because of the transfer of the ‘locus of control’ to another. The loss of autonomy can, in and of itself, have negative consequences for well-being, potentially resulting in depressive symptoms, feelings of helplessness, and the perpetuation of stigma about the individual. Therefore, rather than strengthen well-being, the appointment of a substitute decision-maker can be “anti-therapeutic.”[314]
There are also concerns, explored in Part Three, Chapter I, that substitute decision-making, based as it is on an “all or nothing” approach to capacity, is an imperfect means of dealing with a quality as fluctuating and imprecise as capacity can be, particularly for those on the margins of capacity, so that individuals who are in fact capable within the requirements of the law, may find themselves nonetheless under substitute decision-making.
D. Supported Decision-making
1. Concepts of Supported Decision-making
The concept of supported decision-making is based on a social model of disability, the understanding that, as the CRPD states, “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others”.[315] It is aimed at promoting the full equality of persons with disabilities, including their dignity, autonomy and ability to participate in society on an equal basis with others. From the perspective of advocates of supported decision-making, the loss of legal capacity by persons with intellectual, mental health, cognitive or other disabilities is a legacy of the long history of discrimination, devaluation and exclusion of persons with disabilities, and a symptom of a world view that accords persons with disabilities a lesser moral and legal status.
The aim of supported decision-making is to enable individuals with disabilities that may affect their ability to receive, assess and retain information to exercise control over decisions that affect them through supports provided by persons with whom they have relationships of trust and intimacy, and without any loss of legal capacity.
The Basic Elements of Supported Decision-making
As supported decision-making is a relatively recent legislative innovation, there is no standard model for it, and indeed as is outlined below, there are many differences of approach as to its appropriate and effective implementation. There are some basic elements which are common across all approaches to supported decision-making; however, as can be seen from the remainder of this section, their proposed implementation and implications vary significantly, particularly depending on the proposed scope of application of this decision-making method, and the level of formalization and government responsibility proposed.
Supported decision-making does not require a finding of lack of capacity. In fact, the intent of a supported decision-making arrangement is to avoid any such finding or assessment. The focus of supported decision-making is not on the presence or lack of particular mental attributes, but on the supports and accommodations that can be provided to assist individuals in exercising control over decisions that affect them.
In supported decision-making arrangements, legal responsibility for the decision remains with the supported individual. The supported individuals retain control over their decisions, and those decisions are theirs, and not their supporters’.
Supported decision-making arrangements are based on consent. An imposed arrangement is antithetical to the notion of supported decision-making: these arrangements must be entered into freely in order to function.
Supported decision-making is based on relationships of trust and intimacy. For supported decision-making to function, any supporter must have significant personal knowledge of the individual, in order to assist her or him in understanding and consequentializing her or his values and preferences.
Putting Supported Decision-making into Practice
Supported decision-making along the lines of the elements described above already exists as an informal practice. Family and friends of those who require assistance with decision-making may provide such supports, avoiding any determinations of legal capacity and without accessing the provisions of the SDA or HCCA. As is discussed later in this Chapter, however, more formal approaches to decision-making may be required when interacting with institutional or legal requirements; for example, to meet the needs of health care or financial institutions for clarity, certainty and accountability. The issue is not then so much one of developing supported decision-making practices, but of whether and how such practices should be formalized.
It has also been noted that in practice, family and friends may carry out their formal roles as substitute decision-makers in a way that adopts many of the practical elements of supported decision-making, such as respecting the personhood, will and preferences of the individual, supporting autonomy and the development or maintenance of decision-making abilities, and providing control over decision-making to the individual to the greatest possible extent. Current legislation does not prevent such an approach to decision-making, and in some respects encourages it. However, at a formal and legal level, the decisions remain those of the SDM and not those of the individual in question.
As supported decision-making is still a relatively new concept, debates remain among its supporters as to what precisely it means in practice, and how best to move towards implementation.
Developing the evidence base: There is as of yet little agreement on how to include supported decision-making in legal frameworks. Several jurisdictions have included some limited forms of supported decision-making into their capacity and decision-making laws, but these are recent innovations, and there is not yet a sense of what might be successful models or “best practices” in this area. Nor have there been thorough evaluative studies of supported decision-making practices, although some trial pilot projects in Australia have yielded some interesting preliminary results.[316] A number of experts in the area have emphasized the importance of conducting additional research to better understand whether and how the aspirations articulated for supported decision-making (in its various models) take effect in practice.[317] As one commentator has noted,
there is almost no evidence as to how decisions are actually made in supported decision-making relationships; the effect of such relationships on persons in need of decision-making assistance; or the quality of the decisions that result. Without more information, it is impossible to know whether supported decision-making actually empowers persons with cognitive and intellectual disabilities.[318]
Similarly, little work appears to have been done regarding the implications of cultural diversity for supported decision-making, although it should be noted that substitute decision-making itself may be an uneasy fit in some cultural contexts. The Canadian Centre for Elder Law paper on supported decision-making comments, “Many cultures have a more communal sense of decision-making and supported decision-making may be a good option for those with these types of cultural norms,”[319] and goes on to note that there is a paucity of evidence related to supported decision-making and literacy levels, indigenous culture and regionality.
This note of caution resonates with the common experience of the “implementation gap” whereby well-intentioned reforms to law either fail to have their intended positive effect or in some cases have unintended negative effects, and reinforces the importance of careful evaluation of law reform initiatives.
Is supported decision-making for everyone? There are multiple models of supported decision-making. One of the core unresolved debates underlying these models is whether supported decision-making is an approach that is meaningful for everyone.
Some argue that legal capacity must be retained in all circumstances, even where support must be total.[320] That is, substitute decision-making, with its attendant loss of legal capacity to act, is unacceptable in all circumstances. For example, Bach and Kerzner have proposed three legal statuses within a framework that recognizes and promotes supported decision-making and recognizes a right to retention of legal capacity for all:
- Legally independent status: the person is able to understand information and appreciate consequences of a decision, as well as to communicate that understanding and decision to a third party, with the support or assistance of chosen others.
- Supported decision-making status: support persons are appointed in some manner to assist the person in making decisions and communicating them to others, with the activities of the supporters acting on the discerned will or intention or both of the person. For this status to apply, the person must be able to act in such a way that at least one other individual can, on the basis of personal knowledge, discern the will or intention or both.
- Facilitated status: where individuals do not, for a range of reasons, have others who are able to discern their will and intention, a facilitator may be appointed, either through a planning document or a tribunal, to act for the person on the best interpretation of the will and preferences of that person.[321]
Others see supported decision-making as a type of accommodation in which various types of supports are provided to enable the person at the centre to in effect make the decision themselves (with differing viewpoints as to what “making the decision” means in this context). This approach accepts that in some cases, individuals will be unable to make their own decisions, regardless of the amount of support that is provided, and that in those circumstances, practically speaking, another person must make the decision, although that decision must take into account the fundamental dignity and personhood of the individual on whose behalf it is made. That is, in some circumstances, something that resembles what we currently call substitute decision-making is inevitable, although there should be an emphasis on ensuring that this is truly a last resort.[322]
Within this second approach, there is considerable variation, with some believing that for legal capacity to be retained, support must be able to assist the individual to achieve some identified level of “understanding and appreciation”, and others arguing that a decision may be based on the individual’s “will and preference”, even if the person concerned may not fully understand all aspects or consequences of a decision or lack of decision.
The position that one takes on these debates has extensive implications for the practical implementation of supported decision-making, including whether supported decision-making arrangements can be made through a public appointments process, or whether some form of public body can provide some form of supported decision-making where personal trusting relationships do not exist.
Apportioning legal responsibility: A difficult question is the apportionment of legal responsibility for decisions made through supported decision-making. Responses are to some degree linked to the model of supported decision-making adopted, and the role that supporters are expected to play. One approach is to say that the decision is that of the person, and that therefore that person bears the full responsibility for the decision: critics argue that this approach can lead to troubling moral outcomes where some persons with significant levels of vulnerability may be liable to suffer substantial legal consequences despite not having understood the risks associated with the decision. Another approach is to emphasize the interdependent nature of decisions made through a supported decision-making approach:
[I]f decision-making is an interdependent process and if a person has a support network assisting them to make decisions, it can be argued that the members of the support network should bear at least some ethical responsibility for the decisions made, unless they formally distance themselves from the decision. The question of legal responsibility arises if decisions with legal ramifications are being made, for example decisions involving a financial contract, decisions requiring formal consent or decisions that may result in a person having a civil action brought against them.[323]
As is discussed at greater length later in this section, questions of legal responsibility are important, not only for individuals who enter into supported decision-making arrangements, but for third parties who interact with these individuals, who are expected to rely and act on decisions made through these arrangements, and for whom clarity, certainty and accountability are pre-eminent concerns.
2. Supported Decision-making in Canada
A number of Canadian jurisdictions have recognized supported decision-making in some form. There are three types of recognition: recognition of legal capacity where achieved with supports; supported decision-making agreements; and representation agreements. There is not space here to fully examine all of these systems, but this section briefly describes their core features.
Recognition of capacity where achieved with supports
In some cases, there is no formal mechanism for creating, validating and monitoring supported decision-making arrangements. Rather, the legislation simply implicitly acknowledges that informal supported decision-making arrangements exist. For example, the Mental Capacity Act of England and Wales incorporates as one of its general principles, “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.[324] The Northwest Territories takes a similar approach: it states that when considering an order for guardianship or trusteeship, the Court must consider “the ability of the adult, by himself or herself or with assistance, to understand information that is relevant to making a decision … and to appreciate the reasonably foreseeable consequences of a decision based on this information or a lack of such a decision” [emphasis added].[325] This approach essentially recognizes what Bach and Kerzner have classified as a “legally independent status”.
Supported decision-making agreements
The Yukon and Alberta permit adults to execute personal appointments in order to formalize the role of their informal supports to decision-making. These are called supported decision-making agreements or authorizations, respectively. The Yukon’s Adult Protection and Decision-Making Act[326] explains the purpose of supported decision-making agreements as
(a) to enable trusted friends and relatives to help adults who do not need guardianship and are substantially able to manage their affairs, but whose ability to make or communicate decisions with respect to some or all of those affairs is impaired; and
(b) to give persons providing support to adults … legal status to be with the adult and participate in discussions with others when the adult is making decisions or attempting to obtain information.[327]
In both jurisdictions, a supporter is prohibited from making decisions on behalf of an adult, and a decision made or communicated with assistance is considered a decision of the adult.[328] An adult’s decision-making capacity is explicitly preserved.[329] In Alberta, an adult must have capacity to make his or her own decisions before receiving assistance. The process is recommended only for “capable individuals who face complex decisions, people whose first language is not English and people with mild disabilities”.[330] In the Yukon, “[t]hese agreements are for adults who can make their own decisions with some help”.[331]
To enter into a supported decision-making agreement or authorization, the individual must “understand the nature and effect of a supported decision-making authorization”.[332]
In the Yukon, supported decision-making arrangements are available for personal care and financial matters including banking, monthly budgeting, dietary expenses and other financial matters. In Alberta, they are available for personal care but not financial affairs.[333]
Supported decision-making may provide supporters with a number of powers and responsibilities, including:
- accessing or obtaining information, or assisting the individual in doing so;[334]
- assisting the person in the decision-making process;[335]
- communicating or assisting the person in communicating the decision to others;[336]
- endeavouring to ensure that the decision is implemented;[337]
- advising the individual by providing relevant information and explanations;[338] and
- ascertaining the wishes of the individual.[339]
The Yukon specifies that the supporter must not exert undue influence, and where the laws related to fraud, misrepresentation or undue influence are contravened, the decision will not be recognized as belonging to the individual.[340] In Alberta, if there are reasonable grounds to believe that a decision communicated by or made with the assistance of a supporter was the result of undue influence, or that there is fraud or misrepresentation, a person may refuse to recognize that decision.[341]
Under both statutes, supporters are protected for acts or omissions carried out in good faith.[342] The Yukon further specifies that the supporter is not liable for a decision made by the person if the supporter did not agree with it and advised against it,[343] and significantly, an agreement with a third party may be declared void where the person failed to consult the supporter prior to entering into the agreement, on an issue that falls within the supported decision-making agreement.[344]
Government representatives in the Yukon and Alberta have indicated that the creation of these types of appointments was primarily a response to ideological concerns about definitions of capacity voiced in the disability community.[345] In Alberta, it also responded to a pragmatic need to formalize trusting relationships in the healthcare context in order to grant supporters access to confidential information.[346] Because agreements are not registered in either jurisdiction, their uptake is not known. The Office of the Public Guardian in Alberta has stated that they have been very popular.[347] In contrast, in the Yukon, it is believed that they have received limited use due, in part, to the lack of trusted or available supporters.[348]
Representation agreements
Representation agreements (RAs) in the Yukon and British Columbia are another form of personal appointment but one that permits a “representative” to make legally enforceable decisions on an adult’s behalf with respect to the routine management of financial affairs. RAs are often characterized in the literature as facilitating supported decision-making[349] or as a less restrictive alternative to POAs and guardianship.[350]
RAs in the Yukon sit at a midpoint between supported decision-making agreements and POAs. RAs give a representative authority to make decisions over prescribed financial matters, including signing negotiable instruments, taking steps to obtain benefits, investing and withdrawing funds, receiving and depositing pension or other money, and purchasing goods and services for day-to-day living.[351] RAs differ from POAs in that they cannot grant plenary powers over financial management,[352] and they expire at the earlier of three years or when an adult’s capacity declines. Therefore, they “are not for adults who have a degenerative disease like Alzheimer’s” or for those whose decision-making abilities fluctuate.[353]
The threshold for capacity to execute these RAs requires the adult to understand the nature and effect of the agreement. Because RAs contemplate more complex transactions, the threshold is effectively higher than supported decision-making agreements. Depending on the powers that are awarded to the representative, it can be lower or potentially the same as for a POA. Since POAs are recognized more readily by banks and across jurisdictions, where the purpose of an RA is the same as a POA, the Yukon Seniors’ Services and Adult Protection Unit promotes enduring POAs.[354] Because in the Yukon, an adult’s lawyer must prepare a POA,[355] the RAs operate as a more accessible option.
With a small population of just over 35,000 people, the Yukon has had approximately 30 RAs in place.[356] They have been used to apply for and manage funds on behalf of adults who were eligible for the Indian Residential School Settlement Agreement common experience payments (CEP).[357] In that context, they were intended as a protective measure for adults who could be vulnerable to financial abuse because their receipt of this funding would likely have been known to the community.[358]
British Columbia’s Representation Agreement Act came into force in 2001 after years of “unprecedented broad based community-government collaboration”,[359] and has a complex legislative history. Initially intended to supplant POAs, following a review of both regimes commissioned by the Attorney General, both regimes continue in operation.[360]
While the Representation Agreement Act initially permitted an adult to authorize his or her representative to “do, on the adult’s behalf, anything that can be done by an attorney acting under a power of attorney….”,[361] under 2007 amendments, the scope of a representative’s powers now includes such areas as the payment of bills, receipt and deposit of pension income, and making investments, health care, obtaining legal services, personal care and admission to a care home.[362]
RAs in British Columbia straddle supported and substitute decision-making: “an adult may authorize his or her representative to help the adult make decisions, or to make decisions on behalf of the adult….”[363] While some interpret this as meaning an adult can choose either to ask for assistance or to have decisions made on his or her behalf, others say that this provision is meant to be interpreted as a holistic arrangement that captures the dynamics of the decision-making process: an adult may require more or less assistance depending on his or her abilities with respect to the decision at hand.[364] An RA in British Columbia can endure into an adult’s incapacity.[365]
The decision-making process that is mandated under the Representation Agreement Act is, thus, targeted at adults who may have fluctuating, diminishing and issue-specific capacity. The definition of capacity to create an RA substantially differs from the cognitive test for capacity used throughout Ontario’s laws, reflecting a very different approach to capacity and decision-making, as is described in Part Three, Chapter I of this Paper.[366] The factors are:
a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions;
b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;
d) whether the adult has a relationship with the representative that is characterized by trust.[367]
A study conducted by the Nidus Personal Planning Resource Centre and Registry, a voluntary registration and advocacy support service, found that 989 RAs were made and registered between 2006 and 2009, 70 per cent of which included authority over financial affairs. The majority of adults executing RAs were between the ages of 19 and 29, followed by those between 80 and 89, but people of all ages have accessed these arrangements.[368] The LCO also heard during our preliminary consultations that RAs have been recommended as a tool to assist adults in managing government income supports and social benefits in the developmental disability sector.[369]
However, legal practitioners have been hesitant to embrace representation agreements. RAs originally required a lawyer to validate the agreement and the discrepancy between the statutory threshold for capacity and the common law capacity to instruct counsel has been a source of unease. Despite eliminating a lawyer’s participation in the process of validating an RA, this tension has not been resolved for adults wishing to access legal advice.[370]
3. Other Approaches to Supported Decision-making
As the brief review of supported decision-making in Canada reveals, the adoption of this approach has relied on personal appointments, and frequently has placed restrictions on the types of decisions that can be made through these arrangements. With the exception of British Columbia’s RA regime, they have continued to rely on some version of a cognitive capacity test. There are other approaches to supported decision-making that take the concept in a somewhat different direction: two of these are briefly outlined below.
Sweden’s Mentorship System
Sweden’s “god man” (goodman) or mentor system provides an example of a supported decision-making system that operates through a public appointments process. This process is explicitly required to be a first choice, prior to the last-resort option of a forvaltare (administrator), which has more of the features of a substitute decision-making model. The appointment of a mentor has no impact on the legal capacity or civil rights of the person for whom the appointment is made.[371] The mentor is required to act in consultation and with the consent of the individual for whom he/she has been appointed,[372] and acts as a “counsellor”, informing and discussing decisions and transactions with the individual.
For persons with disabilities, most appointments are by consent; however, a mentor may also be appointed for a person incapable of giving consent.[373] Only where an individual objects to the appointment of a mentor, or to the decisions of a mentor and the individual’s property or personal interests are in serious jeopardy will an administrator (substitute decision-maker) be appointed. The procedure for the appointment of a mentor is informal, fast, and free, and is established in the Code of Parenthood and Guardianship.[374] The Code states:
if, because of sickness, arrested mental development, a weakened state of health or the like, a person needs assistance in safeguarding his/her rights, administering his/her property or providing for his/her needs, the Court shall, if needed, appoint a custodian or “good man” for him/her.[375]
An application for the appointment of a mentor can be made to the court by the person for whom the mentor is to be appointed, a close relative of such person or the public trustee.[376] As Herr notes, “[s]ince most cases are based on direct consent and a review of the documents by the court, no personal appearance or hearing is necessary. In routine cases, the appointment process takes only two to three weeks to complete with the judge writing the court order in about ten minutes.”[377] An application has to be accompanied by a social welfare report stating why the application for the appointment of a mentor is being made.[378] If the application has not been filed by, or with the consent of the person for whom the mentor is being appointed, it must be accompanied by a doctor’s certificate, stating that the person is unable to give his/her consent.[379]
Appointments are made by a district court, and can be tailored to the specific needs of the individual.[380] The duties of a mentor can be limited to representation for individual rights, such as making application for special services; supervision of financial matters, or attending to the person’s other needs for support and guidance.[381]
While relatives are most often appointed as mentors, professionals such as lawyers, accountants and social workers may act as mentors for multiple clients.[382] If the person for whom a mentors is appointed lacks the resources to pay the mentor for his/her services, then the state will pay the mentor, and this is true even with respect to mentors who are relatives of the person for whom they are appointed.[383]
Michael Bach and Lana Kerzner’s Law Reform Proposals
In 2010, Michael Bach and Lana Kerzner developed a paper, commissioned by the LCO, setting out a very thorough framework for a legal capacity and decision-making law centred on the concept of supported decision-making.[384] The application of that framework to Ontario’s context, and particularly to the process for the appointment of guardians and of decision-makers under the HCCA, was the subject of a 2014 paper.[385] While the proposals cannot be rehearsed in full in this limited space, the essential components are outlined below. Specific proposals are dealt with in more depth at the appropriate points in this Paper.
Concept of decision-making ability based on “will and intent”: as discussed in Part Three, Chapter I, Bach and Kerzner propose a minimum threshold of decision-making ability as the ability to “act in such a way that at least one other person who has personal knowledge of that individual can reasonably ascribe to that individual’s actions: personal intention or will; memory; coherence of the individual’s memory through time; and communicative abilities to that effect”.
Right to decision-making supports: individuals have a right to access a range of decision-making supports, accompanied by a duty of parties in a decision-making process to accommodate the need for these supports.
Least restrictive alternative: as was briefly outlined above, Bach and Kerzner identify three decision-making statuses: legal independent, supported, and facilitated. Legal capacity can not be removed, but the decision-making status through which it is exercised may be changed. In each case, the status ascribed to each individual should be the one least restrictive. In their unpublished paper, Bach and Kerzner propose a new class of “alternative course of action assessors” to ensure that less restrictive alternatives are considered at each step of the processes which currently can result in the appointment of SDMs through guardianship or under the HCCA.
Formalized recognition of supported decision-making: this proposal recommends the legal recognition and formalization of supported decision-making status, which may be attained either through personal planning documents or through a formalized application process by potential supporters.
Provision of individual advocacy: ensuringe against the unnecessary imposition of restrictive decision-making practices, requires that that recognition of the right to advocacy be embedded in legislation, and be completely independent, an entitlement for anyone at the point that his orher right to legal capacity is to be restricted, and not a matter of discretionary social assistance programs or charity.
Safeguards against abuse: as a safeguard against abuse, persons who are not decision-making supporters or in a conflict of interest, could be appointed to monitor a supported decision-making arrangement. In most cases, monitors would be unpaid persons, known to the individual or decision-making supporters or both, but a roster of paid monitors could be developed by a public body as well.
Government-provided supports and resources: Bach and Kerzner recommend that there be clear statutory government responsibility for ensuring that individuals have access to the supports and accommodations they need to exercise their legal capacity. This could be implemented through a community-based approach. In their 2010 Paper, they recommend the establishment of a community-based resource office to provide assistance both to individuals and their supporters. They also recommend ministerial responsibility for carrying out public education on supported decision-making among professionals, individuals and community organizations, and an “Office of the Provincial Advocate for the Right to Legal Capacity”, which would provide a central point for both individual and systemic advocacy.
Dispute resolution tribunal: finally, they recommend that the mandate of the Consent and Capacity Board (CCB) be expanded to address dispute resolution and rights enforcement issues related to supported decision-making.
4. Critiques and Concerns
Supported decision-making approaches have been the subject of a number of concerns and critiques, which are briefly outlined below. Several of these overlap.
Provision of clarity and certainty for third parties: As was noted earlier in this Paper, decision-making is both a personal and a public act. When others are being asked to rely on or implement our decisions, it is important for them to be sure that they understand the decision that has been made, that they can rely on the finality of that decision, and that all parties can be held to account to uphold their part of the decision. In this public realm, law plays an important role, for example in determining when an agreement is valid and we are entitled to rely on it, and when a party is liable for a breach of the agreement. Concerns have been raised that supported decision-making, relying as it does on multiple persons, provides insufficient clarity for third parties, who must be able to easily pinpoint those persons who are authorized to enter into legally binding transactions.
Identifying and addressing abuse: Concerns about abuse are a major component of critiques of supported decision-making. Persons whose ability to receive, retain and assess information is impaired will be at some greater risk of abuse or exploitation regardless of the legal framework adopted: issues related to abuse have always had a prominent place in this area of the law, and as is dealt with elsewhere in this Paper, there are considerable concerns about abuse and exploitation under the Ontario’s current statutory framework for guardians and powers of attorney. Part Four, Chapter I will deal at length with the problem of abuse and avenues for reform. It is important to note here, however, that the innovative legal frameworks associated with some forms of supported decision-making raise particular issues related to abuse.
It may be more difficult to hold supporters to account for misusing their role. In a substitute decision-making system, it is substitute decision-makers who are ultimately responsible for final decisions, and in most modern systems, the legislation sets out clear parameters for acceptable decisions against which the substitute can be held to account. Where, for example, a person exercising a POA for personal care makes a decision regarding shelter or safety that clearly has a significant negative impact on the wellbeing of the individual, the attorney may be held to account to demonstrate that that decision was made in accordance with the prior capable wishes of the individual, or where these were not expressed, factors such as the individual’s values and beliefs while capable, current wishes and quality of life.[386] Similarly, the SDA sets out a clear set of priorities for financial decision-making, as well as restrictions on loans or gifts and directions on other matters. In supported decision-making arrangements, however, the decision remains that of the individual. Laws regarding supported decision-making do not set standards or considerations for decisions made under a supported decision-making arrangement; those making decisions with supports are entitled, like any of us, to make decisions that are unwise, risky, or result in negative consequences. As supporters are intended to have less of a role in the decisions, they are accorded less responsibility for the outcomes of decision-making, and the lack of an objective standard makes it more challenging to hold them to account where their influence on the supported person has led to an inappropriate outcome.
Supporters are responsible for their own behaviour in the decision-making process: in both Alberta and the Yukon, laws related to supported decision-making arrangements explicitly address issues of misrepresentation, undue influence or fraud on the part of supporters. In both cases, decisions may not be recognized as belonging to the individual where these were at play. However, it may be difficult to obtain evidence of misrepresentation or undue influence on the part of a supporter. The private decision-making process is something of a “black box”, whether under a substitute or supported regime. It is an essentially private and informal process, and not the subject of documentation. Where close personal relationships are involved, there are likely to be complex webs of power and interdependence: it may be quite difficult, both practically and psychologically, to disentangle the interests and motives of “supporters” from those of the individual they are intended to support. Some persons who lack legal capacity may have considerable difficulty identifying the motives of those who are supporting them, communicating what the decision-making process was like from their perspective, or reliably remembering what that process was. In such circumstances, it may be very difficult to demonstrate that misrepresentation or undue influence were at work, except in the most egregious of cases.
The Advocacy Centre for the Elderly (ACE), in a submission to the LCO’s related project on Capacity of Adults with Mental Disabilities and the RDSP, comments that,
The difficulty with this [supported decision-making] arrangement is that it creates a risk of undue influence by a legally designated support person. While this risk also exists in more traditional arrangements involving attorneys and guardians for property, we are concerned that actual abuse by a support person will be more difficult to detect as the true identity of the decision-maker, and the factors influencing each decision, may become opaque.[387]
Formalizing an inherently informal process: Supported decision-making has its roots in the informal personal support networks that family and friends create around persons with disabilities, and is based on these relationships of trust and their day-to-day practices. ARCH Disability Law Centre notes that the inherent flexibility of informal decision-making arrangements can promote respect for dignity, autonomy and independence.[388] When such networks wish to act in realms where increased levels of formality are required, such as health care, major financial decisions and legal issues, they encounter different sets of expectations. This disjunction underlies some of the challenges surrounding the legal implementation of supported decision-making. As the Canadian Centre for Elder Law commented in a paper commissioned by the LCO,
The act of supported decision-making is inherently an informal process. The laws governing supported decision-making are often making the flexible, trust-based relationships formal and binding in some way. It is not always an easy fit.[389]
There are questions as to the extent to which this formalization is desirable, or whether the unintended consequence may not be so much the intended one of diversion of cases back down into the lower echelons of the hierarchy, but instead, of ‘net widening’, where cases previously dealt with less formally (indeed perhaps entirely ‘informally’) are unnecessarily brought up a level or two.[390]
In its Background and Discussion Paper on supported decision-making, Victoria’s Office of the Public Advocate notes the concern that legalization of formal supports could undermine respect for informal supports, but comments that “[t]his is not an inevitable consequence”.[391] ARCH Disability Law Centre comments that,
It will be important to ensure that any changes to legislation consider the prevalence and experiences of persons who are subject to informal substitute decision-makers. Designing a new legal capacity regime is an opportunity to formalize some of these arrangements, thereby offering greater protection to ‘incapable’ persons. However, the advantages of flexibility and limited decision-making powers that are inherent in well-functioning informal substitute decision-making arrangements must not be lost. Moreover, informal substitute decision-making is attractive to some because it involves little in the way of costs and legal or bureaucratic processes. Great care must be taken to develop decision-making arrangements that will be appropriate for persons who are currently subject to informal substitute decision-making.[392]
Adequately addressing the range of experiences of those falling within capacity and decision-making law: As was alluded to at the opening of this Chapter, the various groups who fall under legal capacity, decision-making and guardianship law will encounter the law from a range of circumstances, perspectives, aspirations and experiences. The concept of supported decision-making has its roots mainly in the intellectual disability community, and it is this community which has tended to embrace it. Many of those working in the area see supported decision-making as a more challenging fit for persons with mental health disabilities or older persons with age-related disabilities such as dementia: certainly, where forms of supported decision-making have been implemented in Canada, there appears to have been less interest or uptake within these groups.[393] As supported decision-making is still so new, it is not clear whether this reflects something essential to its nature, whether its appeal will spread over time, or whether new alternatives will emerge to reflect evolving human rights understandings. However, this does have implications for whether, at this time, supported decision-making approaches, if implemented in Ontario law, should be considered the sole permissible approach to decision-making, as some have advocated; a preferential or default approach, as others prefer; or one among a menu of options, as is currently the approach in jurisdictions where it exists.
Understanding and addressing decision-making practices “on the ground”: Recognition of supported decision-making in Ontario legislation in some form would have a number of clear effects. It would mark (to a greater or lesser degree depending on the form of recognition) a symbolic shift in understandings of legal capacity and decision-making. For those who accessed supported decision-making, it would also mark a change in the formal legal status accorded their decisions. It is less clear the degree to which it would, on its own, shift practices on the ground. As many have remarked to the LCO, many, if not most, of those family and friends who currently act as substitute decision-makers under the SDA and HCCA have only a very general understanding of the legislation, their roles and the concept of substitute decision-making.[394] In practice, many who are substitute decision-makers under the current legislative framework are acting more as supporters than as SDMs. Conversely, there is concern about “slippage” under supported decision-making systems, whereby persons designated to provide support may in fact act as substitutes.[395] Without significant shifts in societal attitudes and available resources, can supported decision-making legislation achieve its intended goals?
But are we deluding ourselves by nomenclature changes which do not alter the underlying social substance? Is the brokerage role of a modern decisional assistant under the supported decision-making model actually just the functional equivalent to that of a traditional guardian or administrator discharging their statutory duty to first act as an advocate (or the “eyes, ears and voice‟) for the person they represent?[396]
Concerns about the impact of limited resources on the meaningful implementation of supported decision-making have resonance in the current Ontario climate. Not only are there limited resources at all levels of government and public services, but community agencies and families themselves are pressed. While supported decision-making may work well for those who have the requisite familial, social and practical resources, its application may be challenging for those who are isolated and marginalized, a concern that is highlighted in Part Four, Chapter II, “Who May Act?”
- QUESTION FOR CONSIDERATION: What are the advantages and risks of formalizing supported decision-making in Ontario law?
- QUESTION FOR CONSIDERATION: If formal supported decision-making is incorporated into Ontario law:
a) To whom should it apply?
b) What should be the test for capacity to be part of such an arrangement or to end it?
c) Should this type of decision-making be available for all types of decisions or only for some?
d) Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e) Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f) Who should be able to act as a supporter?
g) What should be the responsibilities of supporters?
h) What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i) What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j) What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements?
E. Co-Decision-making
1. The Concept of Co-Decision-making
Co-decision-making, sometimes referred to as joint or shared decision-making, is another alternative to substitute decision-making. Co-decision-making has been described as “a new legal concept whereby joint decision-making between the adult and the appointed co-decision-maker is mandated. The actual decision-making process is no longer a solo exercise.”[397] The Victorian Law Commission has described co-decision-making as follows:
Like the appointment of a ‘supporter’, the appointment of a co-decision maker recognises that while a person may struggle to make decisions alone, they may be able to make decisions with assistance from a trusted family member or friend. However, the appointment of a co-decision maker is more restrictive than the appointment of a supporter. Under a co-decision-making arrangement, the person loses some autonomy because they must make decisions about particular matters jointly with a co-decision maker. Under this arrangement, a decision made by the person alone would not be legally valid.[398]
It appears that under this model, the individual only has capacity when the co-decision-maker provides assistance. When acting alone, the individual does not have capacity to make decisions.[399] In this way, the co-decision-making model is a significant departure from both the substitute and supported decision-making models, both of which see the capacity to make a decision as ultimately resting with a single individual – either the substitute decision-maker where the individual lacks capacity (under a substitute model) or with the individual her or himself (in the supported model) – even though the decision-making process may include consultation or assistance.
2. Co-Decision-making in Canada
Both Alberta and Saskatchewan have incorporated co-decision-making into their statutory schemes. These arrangements are intended for adults who can make decisions for themselves with assistance.[400]
In both cases, co-decision-making is available only through a judicial appointment, as opposed to a private process. In Saskatchewan, a judge may appoint a co-decision maker as a less restrictive alternative to guardianship, where his or her “capacity is impaired to the extent that the adult requires assistance in decision-making in order to make reasonable decisions … and is in need of a property co-decision-maker”.[401] Alberta specifies that a co-decision-making order may only be made where the court finds that the individual’s decision-making capacity with respect to the personal decisions for which the order is proposed is significantly impaired, the adult would have the capacity to make decisions about the personal matters that are to be referred to in the order if the adult were provided with appropriate guidance and support, less intrusive measures have been considered or implemented and would not meet the identified need, both the individual and the proposed co-decision-maker consent, and the court is satisfied that it would be in the individual’s best interests.[402]
The Victorian Law Reform Commission recommended the inclusion of co-decision-making arrangements as an option in that jurisdictions decision-making legislation, commenting that “Though co-decision making would limit the decision-making autonomy of a person with impaired decision-making ability, the appointment would expand possibilities for their participation because it would allow the person to remain involved in the decision-making process.”[403] The Commission recommended a public appointments process for these arrangements. In its view, co-decision-making is best suited to address current decision-making needs, rather than use as future planning mechanisms.[404] Because the individual who needs a co-decision-maker will have diminished ability to make their own decisions, his or her ability to “make a sound choice to enter into a co-decision-making arrangement and to appoint a responsible person”, will be in question, and a personal appointment would therefore place too much responsibility upon the potential co-decision-maker to both assess the level of capacity and the appropriateness of the arrangement.[405]
In Saskatchewan, co-decision making is available for personal care and financial matters, while in Alberta, it is available for personal care but not financial affairs.
While co-decision makers share legal authority to make decisions with the adult, they must “acquiesce in a decision made by the adult and shall not refuse to sign a document … if a reasonable person could have made the decision in question and no loss to the adult’s estate is likely to result from the decision”.[406] A co-decision maker’s authority may, therefore, simply consist of advising the adult and giving effect to his or her decision. A co-decision maker can sign a contract in the banking context and a contract signed by either person alone may be voidable.[407]
3. Critiques and Concerns
Co-decision-making has received relatively little attention compared to either supported or substitute decision-making.
Interestingly, the Victorian Law Reform Commission noted that, in public consultations related to proposed reforms to guardianship laws, there was more support for the creation of a supported decision-making alternative to substitute decision-making than for a co-decision-making system.[408] A key concern of stakeholders was that co-decision-making creates an inherently unequal partnership, so that the appointed co-decision-maker may heavily influence the decision of the individual. As a result, co-decision-making arrangements might not differ all that substantially from substitute decision-making.[409] This kind of unequal partnership also raises concerns about the susceptibility of these types of arrangements to abuse. The Commission noted in response that because co-decision-making requires the agreement of both co-decision-makers, it essentially mandates the inclusion and participation in decision-making of the individual in question, a significant potential benefit.[410]
Another concern is the potential complexity associated with this novel type of decision-making arrangement:
One of the main concerns is the added complexity, and potential confusion, these new legal appointments could create. The same concern was expressed in relation to the Commission’s proposal to introduce the appointment of ‘supporters’ in Chapter 8. This concern is greater for co-decision makers because the relationship itself is more complex. Defining the meaning of a ‘joint’ decision, identifying the potential users of these arrangements, and describing the responsibilities of third parties who transact with co-decision makers are all important challenges.[411]
In their review of alternative decision-making arrangements in Canada and abroad, Terry Carney and Fleur Beaupert remark,
Redolent of the fine distinctions between ownership rights under joint tenancies and tenancies in common (whether co-owners do or do not acquire a ‘share’), these options are among the most problematic in terms of public understanding of their social and legal function: they risk failing to pass the ‘corner shopkeeper’s understanding’ test.[412]
The potential for confusion and uncertainty has been cited as one reason why, in Alberta, co-decision making does not apply to financial management.[413]
- QUESTION FOR CONSIDERATION: What are the advantages and risks of formalizing co-decision-making in Ontario law?
- QUESTION FOR CONSIDERATION: If co-decision-making is incorporated into Ontario law:
a) To whom should it apply?
b) What should be the test for capacity to be part of such an arrangement or to end it?
c) Should this type of decision-making be available for all types of decisions or only for some?
d) Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e) Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f) Who should be able to act as a co-decision-maker?
g) What should be the responsibilities of supporters?
h) What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i) What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j) What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with parties who are in such arrangements?
F. Questions for Consideration
- What are the advantages and risks of formalizing supported decision-making in Ontario law?
- If formal supported decision-making is incorporated into Ontario law:
a) To whom should it apply?
b) What should be the test for capacity to be part of such an arrangement or to end it?
c) Should this type of decision-making be available for all types of decisions or only for some?
d) Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e) Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f) Who should be able to act as a supporter?
g) What should be the responsibilities of supporters?
h) What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i) What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j) What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements? - What are the advantages and risks of formalizing co-decision-making in Ontario law?
- If co-decision-making is incorporated into Ontario law:
a) To whom should it apply?
b) What should be the test for capacity to be part of such an arrangement or to end it?
c) Should this type of decision-making be available for all types of decisions or only for some?
d) Should these arrangements be a presumed default arrangement, as opposed to substitute decision-making arrangements? If so, in what circumstances?
e) Should appointments and terminations of these arrangements be personal (like a power of attorney) or public (like the appointment of a guardian)? What should the appointment and termination processes require?
f) Who should be able to act as a co-decision-maker?
g) What should be the responsibilities of supporters?
h) What type of monitoring and oversight mechanisms should operate for these decision-making arrangements?
i) What other mechanisms should be incorporated to guard against abuse through these decision-making arrangements?
j) What should be the obligations of third parties with respect to these arrangements? What legal protections should be in place for third parties when transacting with persons who are in such arrangements?
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