Law Times

Law Times • January 18, 2016 Page 5 www.lawtimesnews.com Changes touch on legal capacity, decision-making LCO releases much-needed draft reforms, say lawyers BY NEIL ETIENNE Law Times M ajor regulatory re- form could be com- ing to help support some of the most fragile citizens in Ontario and the lawyers who represent them. On Jan. 11, the Law Com- mission of Ontario released its draft recommendations and in- terim report on Legal Capacity, Decision-making and Guard- ianship. "This is an area of law that needs a serious review," says lawyer Jordan Atin, counsel to Hull & Hull LLP and a certified specialist in estates and trust law. Atin says capacity issues are the hardest area of the law he deals with, and compared the law to a "sledgehammer when all you really need is tweezers." "We only have an on-off switch. The person is either in- capable of managing their prop- erty and personal care, or not, and that's not ref lective of the real situation," Atin says. According to the report, the project, headed up by LCO se- nior lawyer Lauren Bates, was the result of concerns about the abilities of the elderly and dis- abled, who do not necessarily have the capacity to make crucial property or financial decisions. It was also borne out of concerns about how the law in this area was operating in practice. "Laws in this area have a pro- found impact on the dignity, autonomy, security, and inclu- sion of older adults and persons with disabilities," said Bruce El- man, chair of the LCO's board of governors, in a press release an- nouncing the draft recommen- dations. "Reforms to this area of the law have the potential to make a significant difference in the lives of many Ontarians." The LCO seeks to implement reforms under several broad cat- egories. This includes: improv- ing access to the law; promoting a better understanding of law; strengthening the protection of rights under the Health Care Consent Act; reducing inappro- priate interventions; increasing accountability and transparen- cy for personal appointments; and enabling greater choice of substitute decision-makers. The report touches on how current capacity practices are poorly understood and applied. It makes recommendations to increase transparency and accountability to address con- cerns about abuse and misuse of the role of powers of attorney, including monitoring and con- sequences for failing to fulfill the role properly. Garry Wise, founder and senior lawyer with Wise Law, says the new oversights and re- porting obligations for powers of attorney are positive on the surface, but they may in fact scare people away from taking on the role. He says new rules and obligations imposed on the powers of attorney, often fulfilled by volunteer family members, might be intimidat- ing, and he suggests monitor- ing on an on-request basis rather than a default obligation might address those concerns. Wise says one key element of the recommendations is the poten- tial for an increased role for the Consent and Capacity Board to handle guardianship disputes and contested capacity deci- sions, rather than through the courts. Any recommendations implemented will need the fi- nancial backing to make them effective, he says. "Whether turning it over to a more administrative tribunal is going to ultimately save time and or money remains to be seen," he says. "I don't think the courts are necessarily the wrong place when it comes to certain cases; for example, sometimes there are a number of siblings who have very different opin- ions on capacity and their very different opinions are usually tied to their own self interests. "I think the courts are very good at seeing through that. I'm not sure tribunals are going to be as effective," says Wise. "I wouldn't say no to a tribunal system, but I'd want to know more about how it would work and what resources it would be given if it's implemented." Atin says a tribunal would likely be a more financially ac- cessible way for people to settle guardianship issues, explaining a guardianship application to the court is about $15,000. "The board would be more sensitive to other solutions, rather than simply appointing a guardian because a guardian removes all the authority of the incapable person," Atin says. "It would be a better way of coming up with nuanced remedies." Wise says what struck him as one of the more positive recom- mended changes is updating the "all-or-nothing approach" to guardianship decisions. "If the threshold for guard- ianship and incapacity isn't met, essentially, the law has nothing to offer. This provides a middle ground for assistance and accom- modation that doesn't go as far as guardianship," Wise says. "It will allow for intervention without totally eliminating the indepen- dence of the individual; that's a [really] positive step forward." He adds that in addition to providing for assistance over full guardianship, he was pleased to see recommenda- tions to standardization in the medical field of capacity assess- ments and testing to determine the level of care or guardianship an elderly or disabled person may require. Wise says cur- rently the assessments range in scope from more simple anec- dotal reports on observations to tests "of questionable merit," such as the clock test where an individual is asked to draw times of day on a diagram. "Some clinicians will imme- diately conclude there's a lack of capacity when the individual can't do that effectively, but I'm not sure there's really that much of a correlation between the ability to make financial deci- sions and whether you can or cannot draw the clock," Wise says. "It will be very useful for clinicians to have something standardized that indicates what they are to report on and how their conclusions are to be set out." The report focuses on the core statutory framework of the Substitute Decisions Act and Health Care Consent Act, as well as the provisions of Part III of the Mental Health Act related to assessment of legal capacity to manage property. It does not address the com- mon law, other statutes that touch upon consent and capac- ity issues, or the broader provi- sions of the MHA. Under the area of assessing legal capacity, and improving quality and consistency, the LCO made a number of draft recommendations. This included that the On- tario government "develop and implement a strategy for re- moving barriers and increasing access to Capacity Assessments under the Substitute Decisions Act," as well as that "minimum standards be included in the Health Care Consent Act for the provision of rights informa- tion to persons found to lack legal capacity." It also proposed the government of Ontario "im- plement a statutory process that addresses consent to detention in long-term care or retirement homes for persons who lack le- gal capacity and for whom de- tention is required to address vital concerns for security or safety." The goal is to have a fi- nal report in 2017. LT NEWS 'Lawyer Garry Wise says the new oversights and reporting obligations for powers of attorney may scare people away from taking on the role.' The Canadian Lawyer InHouse 2016 Innovatio Awards is the pre- eminent award program recognizing innovation by members of the in-house bar within the Canadian legal market. The third annual awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations. For more information, please contact Jennifer Brown Email: jen.brown@thomsonreuters.com | Phone: 416-649-8867 NOMINATIONS ARE OPEN! We are looking for Canada's most innovative in-house counsel NOMINATE YOURSELF OR YOUR DEPARTMENT IN THE FOLLOWING CATEGORIES: • Law department management • Diversity • Best practices in compliance systems • In-house M&A/Dealmakers • Working with external counsel • Litigation management • Risk management • Tomorrow's leader in innovation • New this year: Law department leadership NOMINATIONS CLOSE FEBRUARY 15, 2016 Nomination forms and more information can be found at: www.innovatio-awards.com

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