LCO Recommends Reform in Capacity and Guardianship Law

March 15, 2017 Suzana Popovic-Montag Capacity, Guardianship, Power of Attorney Tags: , , , 0 Comments

Last week, the Law Commission of Ontario (LCO) released its Final Report on Legal Capacity, Decision-making and Guardianship. The Final Report is the result of work conducted by a LCO Advisory Group since early 2013.

In the Final Report, the LCO outlines the strengths and attributes of Ontario’s capacity and guardianship regime, as well as areas of concern. Some key areas of concern the LCO identifies include:

  • The system is confusing and lacks coordination;
  • There is a lack of clarity and consistency in the law for capacity assessments;
  • Legal tools are not responsive enough for the range of needs of those directly affected;
  • Individuals, families, and service providers are not receiving enough support;
  • The current oversight and monitoring mechanisms for substitute decision makers are insufficient;
  • The dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA) are inaccessible to many.

The Final Report includes recommendations for reforms to law, policy and practice. These recommendations relate to (1) improving access to the law, (2) promoting understanding of the law by those directly affected, (3) strengthening protection of rights under the Health Care Consent Act, (4) reducing inappropriate intervention, (5) increasing accountability and transparency, and (6) enabling greater choice of substitute decision makers.

The Final Report makes 58 recommendations on the statutory regime for legal capacity, decision-making, and guardianship, including proposed reforms to the SDA, the Health Care Consent Act, 1996and the Mental Health Act. Some of the Final Report’s key recommendations on the law of substitute decision-making include:

  1. Improved access to capacity assessments under the SDA;
  2. A standard-form “Statement of Commitment” required to be signed by persons accepting an appointment as an attorney;
  3. The delivery of “Notices of Attorney Acting” at the first time the attorney acts, delivered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as for any other persons identified in the Power of Attorney;
  4. The option to name a “monitor”, who would have statutory powers to visit and communicate with the grantor and powers to review accounts and records kept by the attorney;
  5. Development of time-limited or reviewable guardianship orders;
  6. Development of limited property guardianships, in parallel with existing limited personal care guardianships;
  7. Further research and consultation be conducted towards establishing a dedicated licensing and regulatory system for professional substitute decision-makers;
  8. Further research and consultation be conducted towards allowing community agencies to provide substitute decision-making for day-to-day decisions;
  9. Clarification of the duty of health practitioners to provide information to substitute decision-makers upon a finding of incapacity; and
  10. Empowering adjudicators under the SDA to order substitute decision-makers to obtain education on specific aspects of his or her duties.

The Final Report suggests short, medium, and long-term plans for implementing the LCO’s recommendations. You can find a copy of the full report at the LCO website.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Supported and co-Decision-making: Law Commission of Ontario Considers Alternatives to Substitute Decision Making

Law Commission of Ontario’s Proposed Changes to Capacity Assessments

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

Leave a reply

Your email address will not be published. Required fields are marked *

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET