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,