Social Policy in Ontario

Modernize law to protect elderly and disabled

Posted on July 17, 2015 in Child & Family Policy Context

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TheStar.com – Opinion/Commentary – Law Commission redrafting Ontario’s capacity and consent legislation to protect the elderly and disabled.
Jul 16 2015.   By: Carol Goar, Star Columnist

Only the bravest reformers wade into the quagmire of capacity and consent, the area of law dealing with people who can no longer take care of themselves or manage their finances.

The issues are morally complex. The legislation is riddled with loopholes. Enforcement is haphazard. Any attempt to intervene can unleash ugly family tensions. Any effort to protect a vulnerable person can trigger accusations of invasion of privacy.

For more than a decade, advocates for the elderly and disabled have called for reform. But legislators didn’t want to touch the trouble-laden issue. Academics shrank from the task of designing a better system. Police and lawyers took the course of least resistance, applying the existing laws — the Substitute Decisions Act and the Health Care Consent Act — inadequate as they were.

Finally in 2013, the Law Commission of Ontario — a public agency with a mandate to make the legal system fairer and easier for people to understand — stepped in. Senior lawyer Lauren Bates is in charge of the project.

She is a specialist in human rights, aging and disability issues, workplace law and public education. She’ll need all those skills to fix Ontario’s outdated capacity and consent system. The problems run the gamut from well-intentioned ignorance to deliberate malice:
Family members agree to act as power of attorney for a spouse, parent or sibling with no idea what the role entails or what fiduciary responsibilities they have.
Unscrupulous relatives take charge of a frail senior’s affairs to line their own pockets.
Patients recover from an accident or serious illness only to discover they’ve lost control of their money, living arrangements and future.
Older people ask for help with a specific matter and find themselves patronized, then pushed aside by their proxy.
Families scatter, leaving aging parents with no one to act for them. Couples break up and find new partners, severing family bonds.

“We knew it would be difficult,” Bates said. “But the more you look at it, the bigger the challenges become.”  She hastens to add, however, that improvements can be made; not only in the way the laws are written and administered, but in the resources available to people who are ill-equipped to manage a loved one’s affairs and the support for citizens who want to stop elder abuse.

Here are some of the possibilities the Law Commission is looking at:

1. Under the current system, medical professionals assess whether a person has the intellectual capacity to grasp the consequences of a decision. But there are no clear tests to apply and no safeguards against ageism or excessive paternalism. Is there a way to take into account the human rights and social needs of those being evaluated? Who is best qualified to do it?

2. Under the current laws, the only option for an individual with impaired judgment is to appoint a substitute decision-maker (guardian in the case of a child). Would alternatives — supported decision-making or co-decision-making — be worth exploring? Are they feasible?

3. The vast majority of substitute decision-makers are relatives of those requiring assistance. In cases where no family or friends are available, the Office of the Public Guardian and Trustee (a branch of the provincial government) will step in. Would it be advisable to expand the list of choices? Some countries have licensed professional fiduciaries. Some governments authorize community organizations to offer trusteeship services. Some jurisdictions allow trained volunteers to act on behalf of socially isolated individuals.

4. Most Ontarians rely on instinct or family expectations to choose a power of attorney. No qualifications are required. No one monitors the surrogate’s competence or probity. Would it be safer for a court or tribunal to appoint substitute decision makers? Would it be better to set legislated standards?

5. There is no public registry or online database of substitute decision-makers. Friends who pick up distress signals can’t find out who is in charge. Financial professionals can’t find out whom to approach with confidential documents. Even public officials are stymied. Should there be more transparency? How much? What is the right trade-off between protection and privacy?

After two years of consultations, focus groups, commissioned research and public discussions, Bates is drafting an interim report. It is slated for release late this fall. Next year, she and her colleagues will road-test their recommendations and write a final report to present to the attorney general.

It is a lonely, thankless task. People don’t want to talk about — or think about — the morally fraught dilemmas that suck families into the quicksand.

< http://www.thestar.com/opinion/commentary/2015/07/16/modernize-law-to-protect-elderly-and-disabled-goar.html >

Tags: disabilities, Health, ideology, mental Health, rights

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