Law Commission of Ontario Discussion Paper on Legal Capacity, Decision-making and Guardianship

The Law Commission of Ontario has released a Discussion Paper on Legal Capacity, Decision-making and Guardianship:

"This project will focus on the core statutory framework of the Substitute Decisions Act (SDA) and Health Care Consent Act (HCCA), as well as the provisions of Part III of the Mental Health Act (MHA) related to assessment of legal capacity to manage property. It will not address the common-law, other statutes that touch upon consent and capacity issues, or the broader provisions of the MHA.  Within this scope, the project will concentrate on the following broad issues:

1. The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the SDA, HCCA and MHA;
2. Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;
3. Processes for appointments (for example of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;
4. The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;
5. Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and
6. Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms."

"In evaluating the current law and developing recommendations, the LCO will apply the Frameworks it has developed for the law as it affects persons with disabilities and older adults, as well as taking into account developments in international law, experiences in other jurisdictions, and concerns about practicality and implementability."

"The Discussion Paper is based on the research and public consultations that the LCO has completed to-date, including a series of commissioned papers. It synthesizes information gathered to this point, identifies key issues and sets out potential directions for reform. It is intended as a foundation for public consultation and discussion of the issues identified. It is accompanied by a Summary of Consultation Issues intended to support the consultation process. Following the completion of public consultations, the LCO will release an Interim Report, containing analysis and draft recommendations."

The Commission is accepting feedback from members of the public, including older adults and persons with disabilities, service providers, policy-makers, lawyers and advocates until Friday, October 17, 2014, as part of its public consultation process.

Related posts on Library Boy include:

• British Columbia Law Institute Consultation Paper on Common-Law Tests of Capacity (February 26, 2013)
• Australian Law Reform Commission Paper on Equality, Capacity and Disability in Commonwealth Laws (November 17, 2013)
• Law Commission of Ontario Discussion Paper on Capacity of Adults with Mental Disabilities and the Registered Disability Savings Plan (December 8, 2013)
• Law Commission of Ontario Papers on Legal Capacity, Decision-Making and Guardianship (March 25, 2014) 
• Alberta Law Reform Institute Report on Beneficiary Designation by Substitute Decision Makers (April 22, 2014)