Law Commission of Ontario Final Report on Legal Capacity, Decision-Making and Guardianship

The Law Commission of Ontario (LCO) has released its Final Report on Legal Capacity, Decision-making and Guardianship.

From the Executive Summary:

"Legal capacity, decision-making and guardianship laws affect thousands of Ontarians and their families every day. Most obviously, these laws affect the approximately 17,000 Ontarians who are currently subject to some kind of a guardianship order or the thousands of others whose capacity is assessed as part of obtaining consent to health care treatments, for admission to residency to a long term care home, or as part of the provision of many other services. In addition, every Ontarian who has ever granted or been given a power of attorney is affected by this area of law (...)"

"Does the System Reflect Contemporary Needs?
Over the years, Ontarians have developed increasingly nuanced and sensitive understandings of the needs and capabilities of the individuals, families, and others affected by these laws. The Final Report considers whether the system in Ontario reflects and responds to these understandings. The LCO considers needs from multiple perspectives, including persons directly affected, families, service providers and professionals, and others. The LCO also considers needs in light of demographic and social trends, changing family structures, and Ontario’s cultural and linguistic diversity."

"Is the System Working on the Ground?
The LCO’s Final Report discusses the legislative framework and objectives of Ontario’s capacity, decision-making and guardianship system at length. The Final Report considers whether Ontario achieves these objectives in practice. In other words, the project considers whether there is gap between the formal law – as expressed in statutes – and lived experience of the legislation. Understanding and addressing the “implementation gap” is an important theme in the Final Report."

"Are the System’s Legal Protections Adequate and Accessible?
Meaningful access to justice underpins the entire legal capacity, decision-making and guardianship system. Effective and appropriate mechanisms for dispute resolution and rights enforcement are therefore a priority in the Final Report."

The report makes a number of proposals that would reduce abuse of vulnerable individuals, including elder abuse and reduce misuse and abuse of powers of attorney though better education, transparency and monitoring.