A Recipe for Abuse

If you’re incapable in Ontario you’re at risk.

Ontario’s ill-defined and enforced Substitute Decision Act almost ensures if there is a dispute.

The worst part is Section 3 which appoints a lawyer to for you when there’s a dispute.

Though you’re thought to be incapable – you don’t hire the lawyer the Public Guardian does that for you – the Act says you’re “deemed capable to instruct counsel”. That’s also its complete instructions for the counsel’s role towards you. And all is say’s for oversight.

I’m sure that the legislature thought that all the lawyer’s Rules of Professional Conduct would apply – but without oversight the legislature has set up an opaque relationship where the lawyer can claim anything – and it cannot be investigated because the client doesn’t have agency and lawyer has lawyer client privilege.

The normal balance in that relationship – a capable client able to withhold payment – is replaced with an incapable one who is obligated to pay legal bills, if they have the means.

One might assume the Public Guardian, who engages the lawyer would provide oversight – but the Act and regulations don’t require it – so they don’t. The entire duty to protect the incapable person’s interests shifts to one or other of the disputing parties.

And scapegoating that party is the ideal defense for Section 3 as they can rely on the other party in the dispute to work with them.

Even the courts provide no protection as they are not set up to deal with oversight as they are an adjudication body not an investigative one.

It’s a recipe for abuse.