Law Commission of Ontario Proposes Changes to Ontario’s Capacity, Decision-making and Guardianship Legislation

June 30, 2014 Hull & Hull LLP Capacity, Guardianship, Power of Attorney, Uncategorized 0 Comments

I recently blogged about proposed changes to Nova Scotia’s Powers of Attorney Act.  The Law Commission of Ontario is now also considering changes to Ontario’s legislation that governs legal capacity, decision-making and guardianship, including the Substitute Decisions Act, the Health Care Consent Act and the Mental Health Act.

The 320 page discussion paper not only offers a background on Ontario’s existing statutory framework, but also a discussion on tests for legal capacity and mechanisms for carrying out capacity assessment.  It further “explores issues related to decision-making” and “issues related to how the law is meaningfully accessed.”  Finally it “highlights issues for ensuring effective law reform in this area, including how to incorporate monitoring and accountability mechanisms into new laws…”

As you have no doubt surmised, the paper is far too comprehensive and detailed to discuss in its entirety in one blog post, so I will confine my comments today to the first part of the paper, which examines the existing legislation.  In particular, I found the paper’s identification of the principles underlying Ontario’s statutory framework illuminating.

The paper notes that while there are three different statues which deal with “different areas of decision-making or different settings” they all nevertheless “embody a consistent approach to legal capacity, decision-making and guardianship.”  The paper recognizes six underlying principles to this approach:

  1. Presumption of Capacity: In Ontario, an individual is presumed to be capable of making their own decisions, and others may rely on that presumption, provided there are no “reasonable grounds for believing otherwise.”  Natalia Angelini has blogged about the presumption of capacity here.
  2. Cognitive and decision-specific approach to capacity: An individual need not make wise decisions but they must have the ability to “understand and appreciate” the relevant information to the specific decision.  We have previously blogged about this requirement here
  3. Tendency towards a professionalized assessment of capacity: legislation has created in some areas classes of “capacity assessors” who have “particular professional backgrounds” and training requirements.  Natalia Angelini has blogged about capacity assessors here.
  4. Substitute decision-making approach: decisions must be made by substitutes, rather than as a joint decision by the incapable and someone supporting them.
  5. Procedural rights: Persons who are undergoing capacity assessments have certain procedural rights.  For instance, under the Mental Health Act, an individual examined for capacity to manage property is entitled to rights advice.
  6. Preference for the private realm: Ontario prefers the use of family and friends as substitute decision-maker over bodies like the Office of the Public Guardian and Trustee.  Accordingly, it is relatively simple to execute a Power of Attorney.

I will return to this paper in the future, as I believe it makes some intelligent and sensible proposals.  For the moment, however, I would simply state that the paper’s identification of the principles underlying Ontario’s substitute decision-making legislation accords perfectly with my own experiences in the area.

Thank you for reading,

Ian Hull

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