CAPACITY OF ADULTS WITH
MENTAL DISABILITIES
AND THE FEDERAL RDSP
Submissionto the Law Commission of Ontario
March 7, 2014
Written by: Dianne Wintermute, Staff Lawyer
425 Bloor Street East, Suite 110
Toronto, Ontario M4W 3R4
(416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)
(416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)
(416) 482-2981 (FAX) 1 (866) 881-ARCF (2723) (Toll Free)
TABLE OF CONTENTS
1)Introduction
2)About ARCH Disability Law Centre
3)Analytical Framework
4)Determination of Capacity by Financial Institutions
5)Accommodation
6)Who Should Determine Capacity?
7)Is there a Role for Banks?
8)The Recommendations Proposed by the Law Commission of Ontario
9)Conclusion
1)Introduction
The Law Commission of Ontario (LCO) has asked for feedback on their current project, “The Capacity of Adults With Mental Disabilities and the Federal RDSP”. We understand that the Consultation Paper is limited to a specific and limited mandate, as is the LCO on this particular topic.. The federal government has asked the provinces and territories to each provide their perspective on a mechanism for the opening, contributing and withdrawing from RDSPs, should an adult need assistance doing these things for him or herself.
By way of introduction to our comments, ARCH Disability Law Centre (ARCH) would like to make three preliminary points.
The first is that “mental disabilities” is not an adequate or appropriate descriptor of the community of people with disabilities that the project intends to address. The object of the paper is what to do if someone has capacitybut might need help with respect to opening, managing and withdrawing money from an RDSP. The particular disability one may have does not impact on the issue of their capacity. There are many people who may not feel that the term “mental disability” applies to them. This could include people with mental health disabilities, people with acquired brain injuries, people with intellectual disabilities, people with cognitive disabilities and others who may be covered under the umbrella term “mental disabilities”. If there are people with disabilities who do not identify themselves as having “mental disabilities” then the proposals for providing people who have capacity but may wish some assistance with their RDSP may not take advantage of the help available to them.
Similarly, the consultation project talks about “diminished capacity”. Again, ARCH believes this is a misleading phrase. One may have “diminished” capacity, but that does not mean that they lack the capacity to make financial or other decisions for themselves. ARCH firmly adopts, as one of its foundational principles, that persons with disabilities have the right to live with self-determination, and full-participation in a society free from barriers to their inclusion and integration. Capacity is not something we treat lightly, and certainly not without all appropriate accommodations first being provided. “Diminished capacity” is not an accurate descriptor in the context of the RDSP project.
We therefore ask the LCO to consider the language used in its final report to the federal government and write it with a positive disability and human rights perspective.
Second, we wish to note that despite the limited scopeof the project, it is somewhat paradoxical that the federal government is relying on the provinces and territories to each design their own rules governing a federal program. RDSPs are set up through the Income Tax Act, which is federal legislation. In order to qualify for an RDSP, a person must be in receipt of the federal Disability Tax Credit (DTC). The RDSP program is, at least presently, administered through financial institutions, which for the most part, are federally regulated. Other federal programs like CPP, CPP-D, OAS and GIS are administered federally. They provide a national standard for eligibility and for administration. While ARCH also appreciates that the money accumulated in RDSPs are exempt from many provincial and territorial social assistance programs, the fact that a beneficiary must be eligible for the DTC is the national eligibility criteria for an RDSP. ARCH also appreciates that substitute decision-making, guardianship and other regimes that come into play if someone is found to be incapable are also under provincial and territorial jurisdiction. Nevertheless, we wonder what will happen to a person with a disability who moves to another province or territory. They could be subject to different laws regarding capacity and decision-making. This could make the RDSP program very difficult for people with disabilities to access. We hope the LCO at least mentions the potential problems of different rules throughout the county and how they might impact on the mobility and other rights of persons with disabilities in their final report to the federal government.
Finally, ARCH will not answer all of the questions asked in the consultation paper. Some do not apply to us. Some should be answered by people with disabilities themselves. ARCH will provide its input in areas where we are able to comment.
2)About ARCH Disability Law Centre
ARCH Disability Law Centre (“ARCH”) is a specialty community legal clinic dedicated to advancing the equality rights of people with disabilities. ARCH provides legal services to help Ontarians with disabilities live with dignity and participate fully in our communities. ARCH provides free and confidential legal advice and information to people with disabilities in Ontario. We provide legal representation to people with disabilities whose cases fall within our priority areas of work and who meet Legal Aid Ontario’s financial eligibility guidelines. We work with Ontarians with disabilities and the disability community on community development, law reform and policy initiatives. We also provide public legal education to people with disabilities and continuing legal education to the legal community.
ARCH has extensive experience working on legal capacity and the rights of persons with disabilities. This experience is broad and is based upon our contacts with people with disabilities themselves, their families and support people, advocates and community organizations. Our Board of Directors has identified legal capacity as a priority area of work for ARCH. We provide legal information and advice to persons with disabilities about the law related to guardianship and substitute decision-making in Ontario. We represent persons with disabilities who have concerns or disputes with their substitute decision-makers or the Office of the Public Guardian and Trustee, and we assist individuals to reassert their legal capacity. We also have experience working in situations where others erroneously assume that a person lacks capacity because of the nature of their disability. ARCH has undertaken a number of law reform projects that deal with legal capacity.[1]
We have also conducted extensive public legal education to inform persons with disabilities about capacity law and how to defend their rights and protect their autonomy.
Many of our clients are persons who may experience temporary periods of incapacity due to disability, serious injuries, or poor health. As a result, many of our clients may experience fluctuating, or episodic capacity or periods of intermittent capacity. When it comes to guardianship matters, many of our clients are persons whose capacity to make decisions has improved since the guardianship was created and who therefore seek greater freedom and independence in the management of their financial and other affairs. A number seek assistance to help terminate a guardianship, assert their autonomy and regain control over their financial affairs. Other clients may require assistance with decision-making on a more permanent basis, but turn to ARCH to help them deal with conflicts that may arise between them and their guardian.
3)Analytical Framework
ARCH has written a research paper for the LCO in its larger Guardianship project. Our paper is entitled “Decisions, Decisions: Promoting and Protecting the Rights of Persons with Disabilities Who are Subject to Guardianship”[2]
Many of our comments in the RDSP project will mirror the conclusions in that paper, including the framework that we apply in this paper. ARCH takes a rights-based principled approach with respect to legal capacity. Our approach is also consistent with Article 12 of the Convention on the Rights of Persons with Disabilities[3] (CPRD), and related Articles contained therein, as well as those promoted by the LCO in Appendix B of this consultation paper, and the LCO’s Framework for The Law as it Affects Persons with Disabilities.
The core of this approach is the right to legal capacity on an equal basis with others, and ensuring that the appropriate supports to enhance capacity are made available to people with disabilities. As noted in “Decisions, Decisions”[4] underlying this right are the following principles:
- Respect for inherent dignity and worth: This principle is recognized iin Article 3 of the CRPD. The right to legal capacity is fundamentally linked to human dignity and personhood. Therefore, any restrictions placed upon this right should be limited to the greatest extent possible. This principle requires meaningful mechanisms to ensure that people with disabilities can raise concerns about mistreatment or abuse, and that there is meaningful redress when these concerns arise.
- Respect for and promotion of individual autonomy and independence: The Preamble to the CRPD recognizes the importance of this principle, and makes it clear that autonomy and the freedom to make one’s own decisions are crucial aspects of human dignity and personhood. People with disabilities must have access to information needed to understand and enforce their rights.
- Promotion of full and effective participation and inclusion in society: Articulated in Article 3 of the CRPD, this principle recognizes that people with disabilities have been, and still are, disadvantaged by processes that exclude them from society. Legal and bureaucratic processes related to legal capacity should be designed so as to foster participation and engagement. ARCH asserts that people with disabilities must have opportunities to provide input into the laws and policies that affect them.
- Promotion of substantive equality: This principle is explicitly set out in Article 12 of the CRPD. It recognizes that people with disabilities must enjoy legal capacity on an equal basis as others.
- Promotion of accessibility: Article 3 of the CRPD includes the principle of accessibility. Legal and bureaucratic safeguards related to legal capacity must be accessible for people with disabilities.
ARCH’s response to options for reform to the present RDSP decision-making regime will reflect these principles. We advocate for the least restrictive optionsavailable to support the decision-making authority of persons with capacity issues. We support the provision of accommodation and supports to persons to enhance and maintain their capacity. We also advocate for processes that ensure that the fact that a person may require support to make decisions in one specific area, such as the management of an RDSP, does not affect their ability to maintain their autonomy in other areas.
4)Determination of Capacity by Financial Institutions
In Ontario, every adult is presumed to be capable. This presumption is not rebutted by the fact that the adult is a person with a disability. Even when a disability impacts on a person’s ability to communicate their wishes, this does not make the person incapable. Others have an obligation to find the appropriate means to accommodate the person’s disability-related needsto the point where effective communication is possible. Finding a person with a disability incapable of managing their financial affairs is a serious matter that impacts on the person’s independence, autonomy and access to justice[5].
The test for capacity is a nuanced one, as the LCO identifies at p. 21 of its consultation document. The issue that ARCH has with the determination of capacity is that currently, it is assessed by a financial institution, whose concern is the person with a disability’s ability to enter into a contract using the common law definition of capacity.
An important element of capacity is that the focus is on process rather than outcome. This is because the determination of capacity does not depend on the actual decision that the person makes. Most likely everyone has made a decision that others would question, but that does not render them incapable.
Factors to consider when assessing capacity include:
i)capacity can fluctuate or be episodic;
ii)capacity is task specific;
iii)capacity does not involve an evaluation of the person’s prior knowledge;
iv)capacity depends on the person understanding knowledge that is relevant to the decision at hand;
v)those who make decisions about capacity should always evaluate their own assumptions about disability.
Financial institutions may be concerned about liability, and may apply too high or rigid a test for capacity, without considering the various factors involved. For example, many of ARCH’s clients have episodic or fluctuating disabilities, or have disabilities that could improve over time. A financial institution may not appreciate this factor, and once someone is determined to be incapable with respect to their RDSP, prefer to leave the situation untouched.
In ARCH’s view, the most essential element of finding capacity is to ensure that accommodations are provided to the person with a disability. This issue is one that ARCH is concerned may not be considered or offered by financial institutions when a person with a disability wants to open, manage or withdraw money from an RDSP.
5)Accommodation
Before any determination about capacity is made, appropriate accommodations must be provided to the adult whose capacity is in question.
The idea behind accommodation is that a person who is unable to perform a particular function due to a disability, will, in most cases, be able to perform that function adequately if they are provided with the proper assistance or accommodation. The obvious example would be providing wheelchair ramps to allow persons who, due to a disability, could not otherwise get from point A to point B if doing so involved climbing stairs.
This principle applies to capacity in the same way it applies to physical disabilities. Clients who have difficulty understanding or processing information should be provided with whatever accommodation they need to improve their ability to understand and appreciate the information relevant to the RDSP. Accommodation may be simple, such as speaking clearly, providing written material in plain language, frequent repetition, or giving a client extra time to absorb information and make decisions. In some cases more complex forms of accommodation may be required, such as the use of interpreters, assistive devices or other means that will enhance capacity.
6)The Recommendations Proposed by the Law Commission of Ontario
Focussing on situations where an individual who has not otherwise been found incapable to make financial decisions, is found by a bank to be incapable of entering into a contract for an RDSP, the LCO proposes nine possible options for reform of the process to name a legal representative in Ontario. They are:
1)Adults could choose someone to be their legal representative if they meet the common law test for capacity. This test is less strict than the test than the test to make a power of attorney in Ontario.
2)Adults could choose someone to be their legal representative if they meet a test for capacity that involves factors such as the communication of desire and preferences. This test is less strict than the test to make a power of attorney for property ion Ontario and is based on different ways of expressing choices.
3)Adults could choose someone to be their legal representative if they meet the common law test for capacity and if they only need support to make decisions for themselves. This option would be available to adults who can make their own decisions with some help.
4)Adults could name a trustee as a legal representative if they meet the common law test for capacity. This test is less strict than the test to make a power of attorney in Ontario and is based in trust laws.
5)Adults or other persons (such as a family member) could apply to the Superior Court of Justice to name a legal representative who is not a guardian. This could require changes to the Courts powers under the Substitute Decisions Act, 1992, or other laws.
6)Adults or other persons (such as a family member) could apply to the Consent and Capacity Board (an Ontario tribunal). This would require changes to the Consent and Capacity Board’s powers.
7)Adults or other persons (such as a family member) could apply to the Superior Court of Justice to name a trustee as a legal representative. This could require changes to the Court’s powers over trust laws.
8)Adults or other persons (such as a family member) could apply to a government office to name a trustee or legal representative. This option would mean choosing a government office. It would be based in trust laws.