Law commission report urges changes
TORONTO — Ontario’s complex systems for substitute legal decision-making need to be modernized and clarified in order to be more effective, the province’s law commission said Wednesday.
A study of provincial protocols for powers of attorney, assessing a person’s ability to make decisions and access to justice on those issues resulted in 58 sweeping recommendations from the Law Commission of Ontario aimed at institutions throughout the province, including the government, the courts and dozens of health colleges.
Commission Executive Director Nye Thomas said the report examined the numerous systems that have largely been in place since the late 1980s and early 1990s. He said many of those systems are fundamentally sound, but said there are several areas that need to be brought up-to-date.
“Ontario has grown a lot. It’s more diverse. We have a more nuanced appreciation of people’s needs,” Thomas said in an interview. “Things have just gotten more complicated and confusing. Even though the basic underpinnings we believe are sound, we think that a lot can be done to help improve it.”
Thomas said one of the primary areas of confusion concerns powers of attorney, which enables a person to make critical medical, financial or other life decisions on behalf of someone who can no longer act for themselves.
Thomas said the most consistent message to emerge from the report’s consultation process was that people have a limited understanding of their legal obligations when they take on power of attorney responsibilities, as well as a poor sense of how to navigate the province’s numerous complex systems to obtain the necessary information.
He said some of the report recommendations call for greater education and outreach on what those responsibilities entail, as well as additional checks and balances to make sure powers of attorney are not misused.
Among them, he said, are suggestions to require those holding powers of attorney to send out a notice to designated people, such as lawyers and bankers, when they have begun to act on behalf of someone. Thomas said the commission also supports the idea of appointing someone to act as a monitor to oversee those with powers of attorney and make sure all duties are being properly discharged.
A person’s capacity to make decisions was another area of focus in the report, and Thomas said one of the most pressing recommendations on that topic is geared towards Ontario’s health colleges whose members are involved in evaluating whether or not someone is physically or mentally fit to act for themselves.
“There are 26 different health colleges across the province, and each one has the authority to establish different standards,” Thomas said. “We think it would be very helpful if there was more consistency. They don’t have to be all the same, there’s important reasons for there to be nuance sometimes, but we think the quality and consistency could be improved across the board.”
The commission is also calling for the province to overhaul the channels through which people challenge problems caused by powers of attorney or capacity assessments.
Most issues to do with capacity assessments are currently heard before a tribunal known as the Care and Capacity Board, while those concerning guardianship or substitute decision making go before the Ontario Superior Court of Justice.
Thomas said the commission would like to see this two-pronged approach replaced with a single tribunal to oversee all related issues.
The tribunal should also be empowered to help with dispute resolution, he added.
The Attorney General said it would review the wide-ranging report and “carefully consider” the recommendations.
Thomas said the report also explored other areas of policy that require more research, such as the idea of empowering community agencies to take on some decision-making responsibilities.
Another subject worthy of further study is the notion of helping people with disabilities have more control over their own affairs, he said. Attitudes towards the disabled have “evolved” in the past few decades, he said, adding the current system offers only black and white options for appointing decisionmakers.
Rather than simply signing a power of attorney, Thomas said the law commission wants to see the province explore the idea of introducing tools for “supportive decisionmaking” that would allow advisers to help those with disabilities reach their own conclusions. He said such an approach is controversial within the disabled community, with detractors criticizing it as open to lack of accountability and potential abuse.