Below is my submission made to the Law Commission of Ontario study on guardianship
I am one of the Childs in Childs vs Childs, a case under the Substitute Decision Act that is winding its way through the courts and soon into the press.
My experience has given me insight into the Act and the legal processes around it, at least as they apply to the aged with dementia – a group that will grow and increasingly fall under the Act. What I have seen suggests that reform is needed.
The recognition that the role of “decision-making representative” is poorly understood is an excellent starting point but is insufficient unless the proposed recommendations also recognise that too often self interest or convenience are confused with the capable wishes or best interests of the incapable person. My experience suggests this extends to Section 3 counsel and the PGT as well as parties named as attorneys in a Power of Attorney.
At least for the aged much can be addressed by changes not in the recommendations – specifically the training, education and processes around Power of Attorney documents. As a matter of course these should record capable wishes, instructions, priorities and preferences. A recommended form that included places to list these would be a start. Registering these documents with a revised Capacity Board (possibly for a fee) could help by introducing oversight in several important ways – limiting spurious or influenced changes to the documents, providing a contact list of potential attorneys for focused educational materials (duties, competence etc) and of to validate attorneys when they need arises under proposal #22 – which should be expanded to include notification of the Capacity Board.
While not directly related to competence, but a by-product of not having it, the processes around ensuring the conditions of a Power of Attorney are respected is too weak current Act and not addressed in the recommendations. The only recourse should not be the courts if the document is clear and the requirement to record attorney decisions is mandated.
Similarly, the standards for reporting neglect and abuse should apply to every party that comes in contact with the incapable person as occurs in long term care homes. As it stands the PGT does not investigate this (at least in my mother’s case) though one would think that security of the person is an even more fundamental human right than those driven by competence.
Regarding the specific recommendations, I have the following comments in priority:
Paragraphs 28 – 29
The whole area of Section 3 is fraught with problems. First there is no definition of the role beyond the incapable person being ‘deemed capable to instruct counsel’. From the Act one assumes they are to be an unbiased reporter of the incapable persons capable or current wishes – but that is not spelled out. It is also not clear whether they are to act as an advocate, litigation guardian or substitute decision maker. I’ve seen all three in the last 10 months.
And the incapable person has none of the protections a regular client has leaving them open to abuse. They do not choose the lawyer, they cannot fire them and the are obligated by stature to pay – if they have the means. They have limited agency (hence the appointment) which means they are unlikely to complain if the representation is inaccurate, no other counsel can act for them since as soon as they try they would not be barred from seeing the incapable person as the incapable person is represented by Section 3. And Section 3 cannot be questioned in detail about the instructions or relationship with the incapable person as they are protected by lawyer-client privilege. It is a black box that is ripe for over reach and overbilling.
In my mother’s case 3 hours of contact resulted in a $156,000 bill. And my mother was never consulted through 5 days of hearings, settlement discussions, etc. Section 3 supported different persons to be guardians at different times and opposed a court appointed guardian remaining so for reporting my mother’s statements she was struck.
What little protection the Act provides – that Section 3’s bills be approved by the property guardian – are easy to get around. In my mother’s case Section 3 brought an urgent motion to remove by mother from deplorable conditions but tied that the appointment of BMO as property guardian. It was later discovered that Section 3 wrote BMO’s property guardianship plan and swore their affidavits – at my mother’s expense. That seems an conflict and creates an obligation on the part of BMO towards Section 3.
Without a clear definition of Sections 3 role and protections from overreach and overbilling making it an offense to question Section 3’s actions simply increased the power imbalance and removes the last vestige of protection the incapable person has. If Section 3 had visited my mother to get instructions would be one thing – that Section 3 acted repeatedly without her input was a problem that was not rectified even when reported to the PGT – and what the incapable person needs protection from.
I agree that the incapable person should have a voice at hearings but without protection I believe that moderately wealthy incapable persons will increasingly fall afoul of overzealous Section 3 seeking billings at the expense of the incapable person and the family.
Paragraphs 34 – 40
Regarding the appointment of property guardians the first course, even if there is a dispute between attorneys, should be one of the parties named by the incapable person in their PoA provided they did not charge for the service.
The next principal is that where commercial institutions or individual charging fees should get the appointment through a bidding process where the expected fees for the lifetime of the contract exceed $100,000. This would bring their appointment in line with government procurement policies. For individuals with assets in the $1M range these fees could arise in as little as 4 years. Bidding also removes any potential for a reciprocal relationship as described above.
All costs to apply for guardianship should be borne by the applying institution if they are charging property management.
Paragraphs 23 iv, 24ii&iii, 27, 34, 42
I first contacted the PGT to report that my mother had been removed from her home against her wish. They did nothing. When it was reported that my mother was left in excrement and she reported that she had been struck the PGT did not investigate and recommended that these issues had no bearing on guardianship.
As far as I can tell the PGT does not have an investigative capability as would be required to arrive at the truth of anything reported in 23iv. Without investigative ability the resolution is not possible.
Since the Childs vs. Childs dispute I have seen numerous other problems with the PGT.
- They appear to apply different standards when assessing property guardianship plans (family members must include a cash flow, banks do not need to include this),
- there are no standards of performance (number of days from submission) regarding evaluating submitted plans,
- they take multiple roles acting as parties during settlement and friends of the court at hearings.
- Their role when Section 3 is appointed in ill-defined. Should they oversee Section 3 acting as the capable individual ensuring that meeting occur, actions have the incapable person’s instructions etc. And to do this should the PGT be able to demand answers of Section 3 that would otherwise be protected by lawyer-client privilege. Should they have a duty to ensure the Act is complied with by all parties?
The All of this occurs as there appears to be to little regulation and definition (as also happens with Section 3) in the Act. This should be addressed before any additional roles are added to the PGT.
Paragraphs 12, 13, 29, 52
I am in favour of more training for all parties that are involved in an incapable persons life.
I would strongly suggest that both attorneys and family guardians have to successfully complete some type of training before they could commence their duties. This could be by a short on-line course dealing with the main duties of the Act and their role with the incapable person. I believe this is preferable to the imposition of monitors as I believe the latter will lead to more legal disputes as the monitor is not the decision-making representative and is likely not in as close contact with the incapable person. That said some type of oversight is desirable for all parties.
While I support 29 I do not believe it goes far enough. Some type of training is needed by all lawyers involved in cases that deal with the incapable. In our case a senior lawyer of an Ottawa firm wrote of my mother that “her last capable wishes are largely irrelevant”. The same lawyer also knowingly allowed his clients to ignore my mothers PoA and break requirements of the Act (isolated her from friends and family). This arose because the lawyers’ duty is to his clients and their objectives with no responsibility to the incapable person. Training might address this if the lawyer was unaware.
I have had experiences with doctors, health service provides and CCAC’s all of whom do not immediately ask for or follow a PoA unless they are challenged. The PoA is the incapable persons first line of defence that their wishes get followed.
My experience with the Superior Court of Justice suggests that Judges do not have an insight into the Act. Not once has any time been spent in hearings trying to get to my mother’s competent or current wishes. The court is to removed from the Act and its consequences on the incapable person. The concept of increased powers for the Capacity review board would be welcomed and may also speed resolution.