Power of attorney laws need change, group says
Commission said Ontario system lacks coordination accountability, transparency
The creation of a specialized tribunal and more education and transparency around power of attorney are among the 58 recommendations in a report going to government on strengthening the laws around substitute decision-making for people who are incapacitated.
An individual appointed by another person to be their power of attorney can potentially make a wide array of decisions on their behalf when called upon, including on living arrangements, health care, property and finances.
But the Law Commission of Ontario, an independent body that rec- ommends law reform, found the system around substitute decisionmaking is complex and lacks co-ordination.
“We learned a lot of concerns about the misuse and potential abuse of powers of attorney,” the commission’s executive director, Nye Thomas, told the Star. “They’re very powerful legal instruments. They give the person granted the power of attorney a lot of authority to make decisions.
“The issue with them, however, is they’re essentially private legal tools, and there’s not a lot of accountability or transparency around them, and as a result we heard a lot of stories about things like financial misuse of disabled Ontarians or elderly Ontarians because, either through inadvertence or intent, the power of attorney was used improperly.”
The recommendations are the re- sult of nearly two years of research and consultation by the law commission, which says it is the most comprehensive study in 30 years of Ontario’s laws governing issues such as power of attorney and legal capacity.
To improve the system, the commission is recommending the creation of a “statement of commitment” that the person granted power of attorney must sign, which would set out their legal responsibilities. A second document, called a notice of attorney, would be sent out once the person holding power of attorney begins to act. The notice would be sent to the grantor (the person whose decisions are being made on their behalf ), their spouse, any previous holder of power of attorney, as well as anyone else identified by the grantor.
The grantor would also have the option, under the commission’s rec- ommendations, to name a “monitor,” who would have powers under the law to communicate with the grantor and review records to ensure the attorney is properly carrying out their functions.
“It’s kind of sober second thought, making sure that the person using the authority is using it appropriately,” Thomas said of the monitor.
Other recommendations target access to justice and dispute resolution that could arise in the area of substitute decision-making — for example, disputes involving children fighting over control of the property of a parent who has been deemed incapacitated. Currently, these disputes are typically dealt with in Superior Court, which can often be a lengthy and costly process, and which Thomas said can be difficult for people representing themselves.
The commission is proposing the government create a “specialized, expert tribunal with broad jurisdiction in this area of the law, and the ability to provide flexible and holistic approaches to disputes.”
Thomas said this tribunal could include features of both the court and the existing Consent and Capacity Board, an independent body composed of psychiatrists, lawyers and members of the public that already deals with situations such as reviewing a person’s finding of incapacity and appointing a representative to make decisions on medical treatment for an incapacitated person.