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Page 12 OctOber 20, 2014 • Law Times www.lawtimesnews.com FOCUS CANADA LAW BOOK ® New Edition Key Developments in Estates and Trusts Law in Ontario, 2013-2014 Edition Editor: Melanie A. Yach Gain insight into the latest estates and trusts law issues that will have an impact on your practice and your clients. Key Developments in Estates and Trusts Law in Ontario, 2013-2014 Edition provides a concise overview of recent developments in statutory and common law across a broad spectrum of topics. This publication brings together a team of leading practitioners who collectively provide insight into noteworthy developments in their areas of expertise on estate planning, administration and litigation issues. Learn how recent decisions and statutory amendments will affect your practice and clients in estate matters – now and in the future – with Key Developments in Estates and Trusts Law in Ontario, 2013-2014 Edition. Are you prepared for the Key Issues in Estates and Trusts Law? Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 On Subscription Order # 804684-65203 $111 Hardcover approx. 110 pages June 2014 978-0-88804-684-0 Annual volumes supplied on standing order subscription Multiple copy discounts available One-time Purchase Order # 804684-65203 $125 Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00222PH-A44729 Substitute decision-making Capacity approaches coming under the microscope By JuDy vAn RhIJn For Law Times s conceptions of capacity change, the existing approach- es to substitute decision-mak- ing are coming under the mi- croscope with some advocating for new arrangements. The Law Commission of Ontario has just completed the consultation phase of its project on legal decision-making, ca- pacity, and guardianship. The discussion has centred on concerns and concepts that came to the fore during the earlier research stage, including a new test for capacity and new avenues for resolving disputes. While the law commission is still glean- ing an overall position from the ques- tionnaires, submissions, and focus group records, it's clear that the project has coin- cided with the emergence of a new rights- based approach to capacity. Lauren Bates, a senior lawyer at the law commission, notes the current test for capacity in Ontario centres on what's thought to be people's understanding and appreciation. "That is their understanding of the information relevant to the decision and appreciation of the risks and benefits of making a deci- sion or not making a decision. It is very much concerned with cognitive abilities. It relies on the ability to remember, pro- cess, and assess information." Stakeholders have now put forward an alternative test based on "will and intent" that would change the standard. "Is somebody able to evince what their fundamental will is?" asks Bates. "Can they show what they want and why it matters? This test would enable a broader range of individuals to make de- cisions. It would also raise different kinds of questions about the risk of abuse." Bates believes the concept has grown out of the community living movement that aims to normalize people dealing with dis- abilities. "It's part of the movement towards greater rights and inclusion. That's where the language arose. It's not to say that it couldn't apply to other people, too." The change would affect the many dif- ferent avenues for evaluation of capacity that are already a source of confusion. At present, evaluations for capacity occur in relation to consent to long-term care and treatment as well as assessments under the Substitute Decisions Act and the Mental Health Act. "The legislation is meant to re- f lect different contexts and be responsive to that but it has made it very complicated for the average person to navigate. Even service providers say that it is difficult." The notion of will and intent closely relates to the concept of assisted decision- making. British Columbia currently uses it in a limited way for representation agreements. "Supported decision-mak- ing means many different things to many different people," says Bates. "There is an interest in seeing whether we can better grapple with the grey areas with proper supports and meaningful accommo- dations so that people can do more for themselves." The law commission has been asking people to consider how society can allow greater autonomy and ensure the use of substitute decision-making only for those who really need it. "Guardianship is hard to get," says Bates. "If the person you're dealing with has mental-health problems that are cyclical, you may not remove it when they are well because you might need it again in the future. There is not sufficient f lexibility." There's a concern as well that substi- tute decision-makers don't understand their roles. "There is not a clear mecha- nism to help them," says Bates. "If you think of the process to make a power of attorney, there is no process for making sure they know what to do." As an example, she cites the need for someone granted power of attorney for property to keep accounts. "Many people have no idea that they are supposed to be keeping track. I heard of one example of an attorney for property who thought they could prohibit people from visiting their loved ones." Even professionals, organizations, and social service agencies called on to deal with capacity issues may not know and understand the law. "There is a lot of room for education, training, and other kinds of requirements to put information more readily into the hands of people af- fected," says Bates. One of the issues raised by some par- ticipants in the forums is the complexity of the system. "In all the focus groups so far, that issue has come up in the first five minutes," says Bates. "There is a real lack of understanding of this legislation that causes a significant shortfall in implementation. There is no good mechanism to assist people to un- derstand their rights and be able to enforce them. I recall one person saying to me, 'Ev- ery door leads to a lawyer's office.' It's hard to get redress if you have concerns that someone is misusing their power. There need to be mechanisms to protect people's rights and resolve disputes." Bates is nevertheless happy with the level of enthusiasm the project has generated. "People want to be part of change. There is a very strong desire to see better protection and policies." LT A current wishes when determining what they believe to be their best interests. Wahl advocates for careful drafting and employing the terminology of the Health Care Consent Act so health facili- ties don't misconstrue it. "When drafting, lawyers need to be much more attuned to what happens in the health system. I think most lawyers would be horrified if they knew." In the meantime, her orga- nization is offering education in health facilities. "It is very interesting to see the depth of misunderstanding," says Wahl. "It is a tough slog to get health profession- als to understand." LT Continued from page 10 Prior wishes and the health system

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