Law Commission of Ontario Power of Attorney Reforms
Law Commission of Ontario makes recommendations regarding Powers of Attorney
The Law Commission of Ontario (“LCO”) has released its report about Power of Attorney documents and their potential for abuse and misuse. (See here) The LCO focused on several issues in Ontario’s current Power of Attorney (“POA”) system: a lack of knowledge or understanding of the responsibilities by those appointed under a POA, a lack of transparency regarding these documents, and a lack of accountability when these documents are abused or misused. The LCO recommended:
(1.) The creation of a standard form that would include a “Statement of Commitment” to be signed by persons accepting the appointment as an attorney under a POA, prior to acting for the first time. The Statement of Commitment would specify the statutory responsibilities of the attorney, the consequences of a failure to fulfil these responsibilities, and the acceptance by the attorney of these responsibilities and consequences.
(2.) A requirement that the person exercising authority under a power of attorney to deliver a standard form of “Notice of Attorney Acting” at the time of first acting, to the grantor, any monitor named in the POA, any attorneys previously acting, and the spouse of the grantor. The grantor may specify any other individual to be notified.
(3.) Amend the Substitute Decisions Act to give grantors of a POA the option to name one or more monitors. The monitor would be given the right to discuss the use of the POA with the grantor and to review the records and accounts that are to be kept by the attorney. If he or she has reason to believe that there is abuse or misuse on the part of the attorney, the monitor must report these concerns to the Ontario Public Guardian and Trustee. The appointment of the monitor would not be a mandatory part of a Power of Attorney, but would be strongly recommended. The monitor would not face legal liability, short of gross negligence or willful misconduct, unless the monitor is receiving compensation for their duties.
(4.) Lastly, the LCO would allow people to opt out of the automatic hierarchy of appointments system under the Health Care Consent Act. Currently this system appoints guardians based on familial hierarchies in order to quickly appoint substitute decision makers when necessary. This can be a problem when the next person in the hierarchy is not appropriate. People will be able to exclude someone from this hierarchy by a document similar to the Power of Attorney for Personal Care.
The LCO looked at many reforms but decided on these four that best balanced the cost on the government, the autonomy POAS provide, and the potential for abuse and misuse.