Law Commission of Ontario Discussion Paper on Capacity of Adults with Mental Disabilities and the Registered Disability Savings Plan

Last week, the Law Commission of Ontario released a discussion paper on the Capacity of Adults with Mental Disabilities and the Federal RDSP. RDSP refers to the Registered Disability Savings Plan:

"Persons with disabilities tend to experience a lower standard of living than other Canadians due to factors such as barriers in the labour force and unmet needs for supports. The RDSP is a savings vehicle created by the federal government to assist persons with disabilities with long-term financial security. Financial institutions offer RDSPs to eligible members of the public. Beneficiaries and their family and friends can make private contributions to an RDSP. Beneficiaries can also receive government grants to match contributions and those with a low income may be eligible for government bonds."

"The RDSP has distinctive policy objectives that include poverty alleviation, encouraging self-sufficiency and promoting the active involvement of persons with disabilities in making decisions that affect them. Under the Income Tax Act (ITA), adults can establish an RDSP for themselves and decide the plan terms as the'plan holder' The ITA provides that where an adult is not 'contractually competent to enter into a disability savings plan' with a financial institution, another 'qualifying person' must act as a plan holder on his or her behalf."

"A financial institution may decline to enter into an RDSP arrangement with a beneficiary who does not meet the common law test of capacity to enter into a contract. An adult or another interested person, such as a family member, may also believe that an adult has diminished capacity and wish to appoint a qualifying person before approaching a financial institution."

"However, adults and their families have expressed concerns to the federal government with respect to provincial and territorial laws that govern how a qualifying person can be appointed. Many of these laws require that an adult be declared legally incapable and receive assistance from a guardian. This process can be expensive, time consuming and have significant repercussions for an adult’s well-being (...)"

"The purpose of this discussion paper is to synthesize the results of our preliminary research and consultations, and to identify several options for reform. Responses that we receive to this discussion paper will be considered for a Final Report with detailed recommendations."

"The discussion paper identifies nine options for reform. The options draw on our review of Ontario’s framework under the SDA [Substitute Decisions Act, 1992] as well as other laws in Canada and abroad. They incorporate elements of existing laws that could meet evaluative criteria – or benchmarks – that the LCO has developed. We propose that an effective alternative process for Ontario would meet the following benchmarks:

1. Responds to Individual Needs for RDSP Decision-MakingPromotes Meaningful Inclusion in the Decision-Making Process
2. Ensures that Necessary Protections for RDSP Beneficiaries are in Place
3. Achieves Administrative Feasibility, Cost-Effectiveness and Ease of Use
4. Provides Certainty to Legal Representatives and Third Parties"

The Commission is looking for feedback from members of the public, including persons with disabilities, service providers, policy-makers, lawyers and advocates until Friday, February 28, 2014. The Final Report is anticipated to be released in spring 2014.