Tricia MacDonald believes there has to be a better way.
For months, MacDonald has been locked in an emotional battle with her siblings over the care of their 71-year-old mother, who has Alzheimer’s disease. Because she never assigned power of attorney, under Ontario law all four of her children have equal say.
“There’s a complete divide at this point. Every single person involved will tell you, ‘I’m doing what’s in Mom’s best interest,’” MacDonald said. “It’s ridiculous. It’s wrong. We’re all very angry.”
Despite increasing dementia rates among the population, early findings of an influential review suggest the provincial laws that dictate how decisions are made for seniors who can no longer decide for themselves are poorly understood, difficult to navigate and can lead to bitter family disputes.
In a discussion paper released on Thursday, the Law Commission of Ontario, an independent body created to recommend law reform, has laid the foundation for significant change in a largely hidden but vital corner of legislation.
Nobody likes it because it’s so complicated. The average family has no idea what all this means.
“As carefully thought out and co-ordinated (the current statutory framework) was, there have been unintended or unanticipated results in some areas,” the paper states. “(There) is considerable interest in and pressure for law reform.”
The law commission is launching public consultations this summer to give people an opportunity “to tell us their stories, experiences and hopes for change,” said Lauren Bates, who is heading the comprehensive review of the laws around legal capacity, decision-making and guardianship.
The goal, said Bates, is to produce recommendations that become law.
“This is an area of the law that touches people’s lives in the most intimate and profound ways,” she said. “There is a lot at stake here. It is important that we get it right.”
It is a process the province is watching.
“(It) is important that continued attention be given to the protection of vulnerable individuals under Ontario laws,” said Brendan Crawley, a spokesman for the attorney general. “The ministry will closely review any recommendations made by the law commission.”
The number of Canadians with some form of dementia is expected to double in the next 20 years, from 740,000 to 1.4 million. Yet the commission’s initial consultations point to a profound lack of education and understanding about the complex web of laws that govern eldercare.
Frank Wagner, a bioethicist for Toronto Central Community Care Access Centre, who is part of the law commission’s advisory group, said he regularly fields calls from estate lawyers and family doctors — “people who you think would know this” — with basic questions about the law.
“Nobody likes it because it’s so complicated,” Wagner said. “The average family has no idea what all this means.”
Under the legislation, if a senior (or any person, for that matter) is incapable of making a personal care decision, this responsibility falls to a substitute decision-maker. A senior can elect his or her substitute decision-maker for personal care and finances by creating a power of attorney, which is designed to be accessible and does not require a lawyer to complete.
It is hard to anticipate that people are going to be nasty.
(If no power of attorney exists, as in the case of MacDonald’s mother, there is a hierarchy of substitute decision-makers that begins with a spouse or common-law partner, then continues with adult children and other relatives before ending with the province.)
However, the law commission’s early findings suggest that because the process is so accessible, seniors may fail to grasp that the best person for the job may not be their closest relative, Bates said.
Meanwhile, unlike some other jurisdictions, Ontario has no mechanisms to keep track of substitute decision-makers, actively monitor their decisions or even inform them that they have been placed in this important role.
“I could appoint you my power of attorney and never even tell you,” Bates said. The result is a sort of honour system, in which problems are often missed until a crisis occurs.
“If you are unlucky enough to have appointed someone who wants to steal your money or mistreat you in some way, unless your financial service provider or long-term-care home spots something, nobody is going to know until the money runs out,” Bates said.
Family conflicts are another major concern. As the discussion paper observes, “The dispute resolution mechanisms currently available … were not designed to manage bitter and protracted family conflicts that may resemble those found in family law.”
“It is hard to anticipate that people are going to be nasty,” said Judith Wahl, executive director of the Advocacy Centre for the Elderly, who sat on the committee that drafted the current statutory framework.
Wahl, who is also part of the commission’s advisory group, said the legislation “is sometimes used in a way to aggravate family fights” that often wind up in the court system, where costs — and frustrations — can run high.
“I don’t know whether changes can be made to lessen that,” she said. “I think it’s important to do this review to figure out, is it the law that needs changing or is it the way it’s being implemented?”
The law commission is looking at other models, Bates said. In Australia, for instance, these types of family disputes are resolved in tribunals, which cost less and are more expeditious. In some parts of the United States, meanwhile, court volunteers help families through the system.
“It’s really hard to get away from the fact that family members are just more horrible to each other than they’d ever be to a stranger,” Bates said. “But are there services we could put in to make it easier?”
Tricia MacDonald certainly hopes so. Looking back, she said, she wishes her mother had put more concrete plans in place.
“You find yourself in this position where she hasn’t expressed her directions, so everyone’s got to make decisions,” MacDonald said. “Without a plan, I’m constantly stressed.”