LCO Final Report: http://www.lco-cdo.org/en/our-current-projects/legal-capacity-decision-making-and-guardianship/final-report/

This series has made frequent reference to the increasing dependence that many people have on their support systems as they age. In addition to increasing personal care needs, many seniors eventually require a substitute decision-maker, as they sadly become incapable of managing at least some of their own affairs. The Substitute Decisions Act[1] (the “SDA”) provides two valuable tools to establish and empower substitute decision-makers: powers of attorney (“POA’S”) for property, and for personal care.

But, POA’S as they currently exist are far from a perfect solution to the problem of decisional incapacity. The SDA includes mechanisms to hold an attorney accountable for their actions, and to replace an attorney who is unwilling or unable to act. Yet, many attorneys, as well as many grantors, do not fully understand the obligations that are imposed on someone who acts under a POA. Even a well-intentioned attorney can misuse a POA. WEL Partners’ recent book on elder law provides an overview of these obligations, and various mistakes that attorneys often make: https://welpartners.com/resources/WEL-on-elder-law.pdf

A previous entry in this series focused on chapter 7 of the Law Commission of Ontario’s (the “LCO”) 2017 final report on capacity, decision-making and guardianship. That chapter contained a recommendation that Ontario establish an administrative tribunal to resolve substitute decision-making disputes. This entry will summarize the recommendations in chapter 6, on “enhancing clarity and accountability” in regard to POAS.

The LCO made four recommendations in this chapter. This post will briefly describe all four recommendations, the reasons for them, and some alternatives that the LCO rejected. The recommendations are aimed at three “key issues” that the LCO identified in the current system:

1. the widespread lack of knowledge or understanding of the responsibilities associated with these instruments on the part of those who are appointed under them;
2. a lack of transparency about the contents or existence of these documents, making it difficult to ensure that they are being implemented as intended; and
3. a lack of meaningful mechanisms for accountability when these documents are misused.

 1. “Promoting Understanding of Duties and Responsibilities”

 LCO recommendation: A standard form Statement of Commitment that must be signed by a person appointed as an attorney before that person first begins to act as an attorney, and that specifies: the statutory responsibilities of the appointee, the consequences of failure to fullfil these responsibilities, and acceptance by the appointee of these responsibilities and the accompanying consequences.

Reasons for the recommendation: The key shortcoming that the LCO found in the existing resources on an attorney’s obligations is that an attorney will usually not find them without deliberately seeking them out. In the LCO’s view, and acknowledgement that the attorney has read and understood these obligations before acting would ensure that the information reaches the attorney, and could deter some attorneys who might otherwise be inclined to abuse their powers. The LCO also took the view that this particular tool would be less limiting of a grantor’s ability to freely appoint an attorney than the main alternatives would be.

Rejected alternatives:

• Requiring that a grantor receive legal advice when creating a POA would, in the LCO’s view, make a POA “unduly burdensome” to obtain, particularly for lower-income people. It could deter some people from making POAs, and instead incentivize them to use riskier methods, such as sharing access to their assets while still capable, instead.
• The LCO did not recommend a mandatory standard form for POAS because it “could reduce the flexibility of these instruments, one of their major benefits,” and would require “significant public education resources… for the transition”.

2. “Increasing Transparency”

LCO recommendation: A mandatory and standard form Notice of Attorney Acting, to be prepared when an attorney first begins acting under a POA, and to be delivered to: the grantor, any monitor named in the POA, any other attorney who previously acted for the grantor, the grantor’s spouse, and anyone else specified by the grantor.

Reasons for the recommendation: The LCO took the view that a notice requirement would improve transparency and accountability in the actions of attorneys, but that any such requirement should be balanced against the valid reasons that a grantor might not want certain people notified. Recognizing that a grantor might not always trust all of their family members, or want all of them involved in the process, the LCO identified a select few people that it deemed necessary to notify, and built flexibility into the recommendation to allow a grantor to specify additional people. As with the Statement of Commitment, the LCO found this to be a simple and low-cost tool that would not create onerous barriers to the creation or use of a POA. It found that the time at which the attorney begins acting is the appropriate time to hold the attorney accountable.

Rejected alternative: The LCO considered recommending the creation of a POA registry, but was concerned about the cost and privacy implications of this option. The likely cost of maintaining a registry could result in the imposition of a fee to register a POA, or to find information on one. A public registry could also subject a grantor’s “private information” to public “scrutiny”.

3. “Enabling Monitoring”

LCO recommendation: That a grantor be able to name at least one monitor in the POA. The monitor would be required to: make reasonable efforts to determine whether the attorney was complying with their statutory requirements, keep records, maintain confidentiality, and report concerns to an appropriate authority, such as the Public Guardian and Trustee. The monitor would be empowered to visit and communicate with the grantor, and to review the attorney’s accounts and records. The monitor would have limited protection against liability in the course of their duties, and the grantor would be allowed to authorize compensation for the monitor.

Reasons for the recommendation: The LCO viewed the existence of a monitor as a direct tool by which to hold an attorney accountable, by forcing the attorney to report to some other person. A monitor would, for example, be able to prevent a situation in which an attorney keeps accounts, but never shares those accounts with anyone else. The LCO chose not to recommend that the appointment of a monitor be mandatory because it recognized that not every grantor has a second person, in addition to their attorney, that they trust in this type of role.

Rejected alternatives:

• The LCO took the view that an annual reporting requirement for attorneys “would raise several of the issues discussed earlier respecting a POA registry,” and would be a relatively ineffective use of limited resources.
• Similarly, the LCO rejected a comprehensive auditing program as “resource intensive and intrusive on the privacy both of families and persons directly affected”.

4. “Enable Individuals to Exclude Family Members from Acting under the HCCA Hierarchy”

The LCO recommended that a person should be permitted to create a binding written statement that excludes a specific person, who cannot be the Public Guardian and Trustee, from acting under the hierarchy in s. 20 of the Health Care Consent Act.[2] The reason for this recommendation was that:

…the LCO has heard concerns that individuals with only one family member, or who are unable to trust any of their available family members, may nonetheless find themselves with someone they object to or who is abusive as their default decision-maker under the HCCA.

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[1] SO 1992, c 30

[2] SO 1996, c 2, Sch A

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.