The confusing state of powers of attorney disputes

Something’s gotta give

The unfortunate reality is that when it comes to incapable persons, none of the processes to deal with disputes and rights enforcement for them, in Ontario at least, are without flaws.

Even with good planning, substitute decision-makers can disagree with each other or medical professionals regarding the best treatment option, and loved ones can disagree regarding whether their family member still has capacity to make their own decisions or not, or whether one person or another should be making decisions for an incapable person. Whether it’s the Consent and Capacity Board, the Court, or the Office of the Public Guardian and Trustee, each has limitations, whether legal or practical, and each has drawbacks. Given our aging population and the increasing need to protect incapable persons in a dignified manner, it’s not so much that “something’s gotta give” but instead “something’s going to give.”

While these comments pertain to the Province of Ontario, a similar situation applies across Canada.

Each process can only function within its existing legal framework. The role of the Consent and Capacity Board (CCB) in Ontario includes the following:

Review findings of incapacity for health care decisions;
Appoint decision-making representatives for health care decisions for incapable persons if made under the Health Care Consent Act, 1996 (HCCA). Such a representative, however, cannot make long-term care decisions for the incapable person.
Give permission for a substitute decision-maker to depart from the health care wishes of an incapable person.
Determine if a substitute decision-maker is acting in compliance with the requirements of the HCCA.

The CCB does not have the power to appoint a guardian for personal care decisions for an incapable person, which can be an adversarial process, and costly if professional advice is needed. There is also an inherent tension between the medical issues and the legal issues, which limits the CCB’s effectiveness.

The Court can appoint guardians for property and for personal care (including health care), decide applications to pass accounts for guardians or attorneys for property, and decide applications regarding questions arising in connection with a guardianship or power of attorney. This process is inherently adversarial, functions inefficiently where a participant is self-represented, but can be extremely costly where a lawyer is retained to assist, and resolving a matter can take months, if not years.

The Office of the Public Guardian and Trustee can investigate matters where a person is alleged to be incapable and serious adverse effects may result from their incapacity, including where there may be negligence, abuse or neglect by a guardian or attorney. As the process is publicly funded, it is not costly to the participants, but there are limited resources based on caseload and number of employees at the Office. Many cases are not investigated due to the threshold of “serious adverse effects” not being met. Investigations may take time and may require civil or criminal proceedings to be fully resolved.

In all of these processes, the incapable person’s ability to have any control over, or even participation in, the matters that directly affect them is limited, or in some cases, non-existent. Even where incapacity is only alleged to be present, this can have the effect of removing a person’s control and dignity when they may not in fact be incapable. While everyone is presumed by law to be capable until proven incapable, in reality, all processes leave something to be desired when it comes to implementing this presumption.

So what is the solution? A pilot project being introduced in Toronto would direct suitable cases of disputes regarding personal or health care plans for an incapable person to special facilitated mediation. This is an excellent idea that has had impressive results in other jurisdictions, but of course is of limited application. The Law Commission of Ontario has recommended that a comprehensive tribunal be set up for dispute resolution and rights enforcement for all matters, both property and personal/health care, involving incapable or allegedly incapable persons. This could be a comprehensive solution, but it does not appear that the Ontario Government plans to implement this recommendation anytime soon.

Unfortunately, there are no quick and easy solutions. Legal professionals strive to empower these clients by providing advice and information regarding the issues and the processes available, and to assist them to navigate the difficult and emotional matters that arise when a person loses capacity to make decisions.

However, further effort and sustained advocacy will be needed to change the processes themselves to resolve disputes and enforce rights for incapable persons in a timely, responsive and respectful manner.

Susannah Roth is a member of O’Sullivan Estate Lawyers, based in Toronto. Her practice focuses on estate administration, including cross-border and multijurisdictional administration, advising attorneys and guardians of property, executors, administrators and beneficiaries, real estate transfers and rectification, estate planning (including wills, powers of attorney, insurance and testamentary trusts), and estate litigation. This article originally appeared in the O’Sullivan Estate Lawyers blog. Reprinted with permission.

Notes and Disclaimer

The foregoing is for general information purposes only and is the opinion of the writer. It is not intended to provide specific personalized advice on any individual situation, including, without limitation, investment, financial, legal, accounting or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your particular circumstances.