LCO Releases Final Report on Legal Capacity, Decision-making and Guardianship

16 March 2017

By Sergio Ortega

On March 8, 2017, the Law Commission of Ontario (LCO) released its final report on Legal Capacity, Decision-making and Guardianship (PDF). The project, which began at the end of 2012, is the LCO’s largest research and consultation initiative to date. For four years, the LCO heard from close to 800 individuals and organizations through interviews, focus groups, questionnaires and written submissions. LCO Board Chair Bruce Elman calls the final report “the most comprehensive analysis of Ontario’s laws in this area in almost thirty years”.

The report’s recommendations

The final report makes 58 recommendations which aim to:

  • develop and pilot new approaches to decision-making;
  • improve the quality and consistency of capacity assessments;
  • enhance the clarity and accountability of powers of attorney;
  • improve rights enforcement and dispute resolution;
  • improve external appointment processes;
  • develop new roles for professionals and community agencies;
  • improve public education and information; and
  • improve data collection, reporting and evaluation.

The recommendations include improved educational plans, procedural and administrative solutions, and amendments to three statutes: The Substitute Decisions Act, the Health Care Consent Act, and the Mental Health Act. The report asserts that the recommendations are “practical, achievable, and will benefit persons affected, their families, institutions, and service provides across the province”.

Supported Decision-making

Recommendation 7 of the final report calls on the Government of Ontario to enact supported decision-making legislation. The goal is to allow Ontarians to receive assistance with day-to-day, routine decisions related to personal care and property while retaining decision-making power.

The background research for this recommendation came from the study paper Understanding the Lived Experience of Supported Decision-making in Canada (PDF). The LCO commissioned this study paper, which was prepared by CCEL’s Krista James and Laura Tamblyn Watts. The CCEL is also advancing research on supported decision-making with the project Inclusive Investing: Respecting the Rights of Vulnerable Investors through Supported Decision Making.

Continuing Reform

Given the broad scope of the project, the recommendations could influence the lives of millions of Ontarians, particularly those in vulnerable circumstances. The LCO will continue their work in this area of the law with the project Improving the Last Stages of Life, which will be informed by the conclusions from the final report.

The final report cites the BCLI Report on Common-Law Tests of Capacity (PDF) and the CCEL report on Elder and Guardianship Mediation (PDF). The CCEL is currently working on the related project Health Care Consent, Aging and Dementia: Mapping Law and Practice in British Columbia.

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