In my first year of law school--1978--Ontario introduced new legislation to allow a power of attorney to survive incapacity. It's amazing to think that prior to 1978 only legal guardianships through the court process (then called "committeeships") were available to allow a decision-maker to act on behalf of an incapable person.
And from there, in 1994 Ontario introduced the ground-breaking Substitute Decisions Act, 1992 as a modern, comprehensive legislative framework to deal with substitute decision-making for both property and personal care.
A lot of water has passed under the bridge in the last twenty plus years, and with it attitudes and thinking with regard to substitute decision-making have evolved, including the added dimension of human rights which now heavily influences and informs the discussion on this issue. With an increasingly aging population, it is not surprising that we baby boomers are influencing the legislative agenda and demanding a more nuanced, sophisticated and human rights-based perspective when it comes to having others involved in making decisions for us when we are no longer able--or as able--to do so ourselves.
And so the stage has been set for the release on January 11, 2016 of the Law Commission of Ontario's Interim Report on Legal Capacity, Decision-Making and Guardianship for public feedback. It sets out a timely and fundamental review of Ontario's laws on these matters, and makes many significant recommendations for reform.
Some of the key recommendations include:
- Moving adjudication away from the courts when a dispute arises involving legal capacity or decision-making, such as a dispute involving a power of attorney or legal guardianship. The court process is considered slow, expensive, complicated and unnecessarily adversarial. Instead, an expanded Consent and Capacity Board would provide improved access to the law and better monitor decision-makers, such as attorneys acting under a power of attorney. It would also facilitate the resolution of disputes, most of which involve family members.
- Many substitute decision-makers, including attorneys under a power of attorney, do not understand their legal obligations--there is currently no proactive process that educates them. A series of measures are recommended to promote understanding of the law, provide information and education, including strengthening the role of professional educational institutions for such purpose and enabling adjudicators to require decision-makers to obtain education where appropriate.
- Reducing inappropriate intervention and better protecting autonomy and self-determination, including statutory requirements to ensure a focus on the prior capable wishes of individuals, or on their current wishes and values as well as "co-decision-making" versus "substitute decision-making" to allow the incapable person to participate in and have support in making decisions, not simply taking all decision-making power away and placing it in the hands of others.
- Increasing accountability under powers of attorney and preventing or curtailing misuse and abuse by requiring attorneys to make a "Statement of Commitment", which also sets out their legal responsibilities and the repercussions for failure to fulfill them. As well, requiring the attorney to deliver a notice when he or she begins to act to certain persons specified in the power of attorney.
- Enabling greater choice of decision-makers, including exploring the establishment of a licensing and regulatory system for paid professional decision-making representatives.
The Interim Report sets forth wide-ranging measures for an improved, more responsive, and accountable framework for decision-making, while supporting individual self-determination. It represents a significant next step in the evolution of this increasingly important societal issue.
What is compelling is the fact that issues involving legal capacity and decision-making will ultimately affect every one of us in some way. We are all living longer and we are living for longer periods in various stages of diminished capacity.
Let us hope that our legislators give this initiative the priority it deserves to achieve timely and responsive law reform. If a civil society is to be judged by how well it treats its most vulnerable citizens, how we deal with decision-making for those with diminished capacity will be the acid test.
- Margaret O'Sullivan
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The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.