All About Estates

LCO Releases Report on Capacity, Decision-making and Guardianship Laws

Last week, the Law Commission of Ontario (“LCO”) released and presented to the provincial government, their final report reviewing Ontario’s statutory framework for legal capacity, decision-making and guardianship matters. The LCO focused on the relevant capacity provisions found in the Health Care Consent Act, the Substitute Decisions Act (“SDA”), and the Mental Health Act (“MHA”).

 The report makes 58 recommendations to address issues such as financial elder abuse, misuse of power of attorney documents, and strengthening provisions to allow individuals under guardianships orders more autonomy.

The LCO’s recommendations include:

  • The creation of an expert, independent and specialized tribunal to adjudicate matters involving capacity including the variation and termination of guardianships;
  • The increased use of mediation and alternative dispute resolution;
  • Increased support for litigants including Legal Aid Ontario funding and more access to Section 3 counsel;
  • The creation of more tailored guardianship orders including time-limited orders or limited scope guardianships;
  • Increasing education about substitute decision makers’ legal obligations and the creation of a central database as a resource for guardians and attorneys;
  • Increasing transparency with respect to powers of attorney by requiring first-time attorneys to sign a mandatory, standard-form “Statement of Commitment” confirming the attorney’s knowledge of their legal obligations;
  • Requiring the delivery of a new form, “Notices of Attorney Acting” to the grantor, the grantor’s spouse, any previous attorneys, and any other person identified in the power of attorney documents;
  • The option of appointing a Monitor to oversee the attorney’s actions. The Monitor should not be a family member or have a conflict of interest. The Monitor would visit and communicate with the grantor; review accounts kept by the attorney; and if required, request adjudication of any issues.
  • Training healthcare practitioners, social workers, lawyers and paralegals in the basics of substitute decision-making as it is anticipated that these professionals will in turn educate attorneys and guardians;
  • Clarifying the purpose and usage of capacity assessment under the SDA and MHA to improve access to capacity assessment under the SDA; and
  • The establishment of a dedicated licensing and regulatory system for professional substitute decision-makers.

The LCO refers to the creation of report as “the most comprehensive in LCO’s history”. It addresses real concerns that impact many Ontarians. If implemented, the report would result in a new capacity decision-making regime in the province.  Stay tuned to see which recommendations are adopted.

Thanks for reading,

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com

2 Comments

  1. Jenn

    April 24, 2017 - 6:42 am
    Reply

    I don’t understand why Power of attorney is still treated to be a legal documents as it is not formally executed and most of the attorneys use the POA to pay their own expenses and sevance the joint tenancy so that they can take half of the ownership of the grantor’s house. No formal requirements to verify the qualifications of the witness as anyone can be the wittness. We don’t know whether the wittness get paid for doing it. No proper method to monitor which POA is the latest executed one and the mental capacity of the grantor. People usually verify the POA by asking the attorneys whether the POA is valid. Just like asking a murder whether you had killed someone. Power of attorney is actually a license to steal. Many family members become enmeries because of the POA. I hope the Government can set up a department to formally execute the POA and add laws to punish the attorneys who had misused the POA.

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