² While guardianship is the most common legal term used in North America, various legal jurisdictions have also used other terms to describe the same legal institution. Such legal terms include, among others, committeeship, conservatorship, trusteeship, curatorship, and tutorship. Since they differ from each other in some aspects, guardianship will be used in this study as an umbrella term, to cover all legal regimes that encompass the same rationale and outcome.

³ This definition is based on Abuses in Guardianship of the Elderly and Infirm: A National Disgrace (Washington D.C.: Subcommittee on Health and Long Term Care, One Hundredth Congress, 1987) at 1 [A National Disgrace].

⁴ Associated Press Report found that in one county of Florida, 85 % of the wards were elderly people. Other empirical research in this field also supports this finding (Bayles, F. & McCartney, S., Associated Press (1987)Google Scholar as published in A National Disgrace, ibid.). See also Stevenson, C. & Capezuti, E., “Guardianship: Protection Versus Peril” (1991) Geriatric Nursing 10Google ScholarPubMed (the mean age of wards was found to be 81 years) and Keith, P.M. & Wacker, R.R., Older Wards and Their Guardians (Westport: Praeger, 1994)Google Scholar [“Guardianship”] (the average age of wards was found to be 81 years)

⁵ The population over the age of sixty-five has grown considerably since the turn of the century. In 1901, there were roughly 250,000 persons of this age range residing in Canada; by 1981, their number reached almost 2.4 million, and in 1995 there were already 3.6 million seniors living in Canada. Proportionally, persons over the age of sixty-five represented 4.8 % in 1921, 12 % in 1995, and by 2026 this figure is expected to reach twenty percent of the population. See A Portrait of Seniors in Canada, 2^nd ed (Ottawa Canada Statistics, 1997) [Seniors in Canada] at 11

⁶ The growth of the Canadian population over the age of eighty-five years, commonly referred to as the “older old,” has been even more dramatic. This population is currently the fastest growing segment of Canadian society. In 1921, this group numbered less than 21,000; by 1971 it numbered 140,000 and by 1995 almost 350,000. This number is expected to reach over 1 6 million by 2041, i e, 4 % of the Canadian population. See Seniors in Canada, ibid., at 12.

⁷ See Lunacy Act R.S.O. 1887, c. 54. For a broader background on these legal terms see Doron, I., “From Lunacy to Incapacity and Beyond. Guardianship of the Elderly and the Ontario Experience in Defining “Legal Incompetence” (1999) 19:4Health Law in Canada 95Google Scholar [“From Lunacy to Incapacity”] at 100.

⁸ The Mental Incompetence Act, R.S.O. 1937, c. 110. For background on this legislation see “From Lunacy to Incapacity”, ibid., at 101.

⁹ Ontario's new adult guardianship legislation, enacted in 1992, included three novel pieces of legislation: the Consent to Treatment Act, S.O. 1992, c. 28 [Consent to Treatment Act]; the Substitute Decision Act, S.O. 1992, c. 30 [SDA or Substitute Decision Act], and the Advocacy Act, S.O. 1992, c. 26 [Advocacy Act]. It should be noted that in 1996 the Advocacy Act was repealed and the Consent to Treatment Act was replaced by the Health Care Consent Act [HCCA]. This was done under the Advocacy, Consent and Substitute Decision Statute Law Amendment Act, R S.O. 1996, c. 2. While significant changes were made under these amendments, the core rationale in Ontario's shift from a medically based guardianship regime to an autonomy-respecting guardianship regime remained intact.

¹⁰ According to the Substitute Decision Act, capacity to manage property is examined by the following test “A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (s. 6).

¹¹ See Fram, S. V., Chair, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: Ontario Government Publications, 1987)Google Scholar; Weisstub, D. N., Chair, Enquiry on Mental Competency – Final Report (Toronto: Ontario Ministry of Health, 1990)Google Scholar; and O'Sullivan, S., Chair, You've Got a Friend, (Toronto: Ontario's Ministry of Health, 1989).Google Scholar

¹² See “From Lunacy to Incapacity”, supra note 7 at 103.

¹³ For a historical overview of the OCCB see Hiltz, D. J., Bradford, J. & Kunjukreishnan, R., “The Consent and Capacity Board” in Bloom, H. & Bay, M., eds., A Practical Guide to Mental Health, Capacity and Consent Law of Ontario (Toronto: Carswell, 1996) 207.Google Scholar

¹⁴ See especially Part V of the HCCA, supra note 9.

¹⁵ Information provided by Michael Bay, Chair, OCCB: interview, 6 March 2000.

¹⁶ It is not simple to measure “success” or “failure” of a legislative reform within a case law study. The mere fact that an elderly person lost his or her appeal to the OCCB does not necessarily equate to a failure. A deeper analysis must be made to the actual reasons behind the legal decision.

¹⁷ Frolik, L.A., “Guardianship Reform: When the Best is the Enemy of the Good” (1998) 9 Stan. L. & Pol'y Rev. 347 at 348.Google Scholar

¹⁸ One file (TO-98/394, case no. 14 in list of OCCB cases, Appendix A) involved a couple, husband and wife, both of whom were elderly and subjects of legal proceedings; thus the pool of the study contained 14 cases from 13 files.

¹⁹ The decision to base the study on a sample of 100 cases resulted from practical constraints regarding accessibility to files. Statistically, these 100 files represent actually more than 250 files or 10 % of the OCCB's annual caseload activity (including files with no hearing or no decision: see infra note 23).

²⁰ In general, the Toronto OCCB is the largest review board of its kind in Ontario: it covers the GTA and more, and handles approximately 1,500 cases a year (of a total of approximately 2,500 cases in the whole province of Ontario). The board is located at the offices of Attorney D'Arcy J. Hiltz, who is also Chair of the Toronto OCCB.

²¹ While the size of the sample is small it should be noted that it required overcoming significant barriers. First, the OCCB files are not open to the public and accessing them necessitates a complicated bureaucratic process. Second, as noted, 250 files had to be physically screened in order to reach the final sample. Nearly 60 % of the files (150 files) were closed without a hearing or any reasons in the file. One possible explanation for this is the fact that disputes around mental capacity are resolved prior to the formal hearing. Further examination of this point is beyond the scope of this study, but certainly it deserves the attention of any broader study into OCCB activities and impact.

²² It should be noted, however, that the majority of the elderly population lives in urban areas, thus making this limitation less significant in comparison to studies about the population in general. See Seniors in Canada, supra note 5, at 14.

²³ In one case there was reference to a patient's West Indian origin (TO-98/639 case no. 11) in another case there was specific reference to the Latvian origin of the subject (TO-99/300, case no. 8); and in another case the subject's late husband was from Jamaica (TO-99/1025, case no. 2).

²⁴ In one case the subject had $500,000 in savings (TO-98/394, case 13/14) in another case the subject had $150,000 (TO-99/425, case no. 6).

²⁵ In these cases records clearly mentioned that subjects owned or co-owned an apartment or a house.

²⁶ For example: diabetes, stroke or aphasia.

²⁷ See s. 32(1), 50(1) or 65(1) of HCCA.

²⁸ See s. 20.2(1) of SDA.

²⁹ See s. 33(2), 51 (2) or 66(2) of HCCA.

³⁰ See s. 36(1), 53(1) or 68(1) of HCCA.

³¹ See s. 33(1), 51(1) or 66(1) of HCCA.

³² See s. 39(1) of Mental Health Act.

³³ See TO-98/394, case 13/14, where the husband physically and mentally abused his elderly wife.

³⁴ In one case, the continuing power of attorney contained so many alterations written in by hand that the North York Community Care Access Centre refused to recognize it (TO-99/562, case no. 3). In another case, the attorney was in fact asking to make a decision against a wish prescribed in the power of attorney (TO-99/553, case no. 4).

³⁵ For example, see the P.C. case, TO-99/1371, case no. 1.

³⁶ This is basically due to the fact that the context in most cases was appeals under HCCA, i.e., assessments made by physicians regarding capacity of consent to medical treatment.

³⁷ In one case, the OPGT was a statutory substitute decision-maker of the subject (TO-99/472, case no. 5), and in another case the OPGT was nominated by the Board as a such (TO-99/562, case no. 2).

³⁸ Even in this single case, (TO-99/1025, case no. 2) after the Board had visited the patient at her bedside at the hospital, and only because she was totally unable to communicate due to her medical condition, did the hearing proceed in her absence.

³⁹ See for example TO-98/395, case no. 13 where the Board found the elderly subject incapable regarding admission to a care facility but capable of managing his finances.

⁴⁰ TO-98/639, case no. 11.

⁴¹ Ibid. at 10.

⁴² Women constitute 58 % of people aged 65 and older (See Seniors in Canada, supra note 5).

⁴³ See Guardianship, supra note 4.

⁴⁴ For various reasons, elderly women have smaller informal social-support networks, resulting in greater reliance on formal, state-funded community-based long-term care systems. From this perspective, the findings of this study support the argument made by others that Ontario's current community-based long-term care policies fail to provide the needed support for elderly women. See Armstrong, P. & Armstrong, H., Women, Privatization and Health Care Reform: The Ontario Scan (Toronto: NNEWH Working Paper Series #10, 1999)Google Scholar; and Neysmith, S. M., “Towards a Woman-Friendly Long-Term Care Policy” in Evans, P. M. & Wekerle, G. R., eds., Women and the Canadian Welfare State: Challenges and Change (Toronto: University, of Toronto. Press, 1997) 222.Google Scholar

⁴⁵ Supra note 6 and accompanying text.

⁴⁶ See Foot, D.K., Boom, Bust & Echo (Toronto: Stoddart, 2001).Google Scholar

⁴⁷ “Paternalism” and “autonomy” are complex concepts. Not all forms of state paternalism are morally wrong or legally unjustifiable per se. For attempts to define “paternalism” and draw the line between the two concepts see Dworkin, G., “Paternalism” in Freeman, E., ed., The Abdication of Philosophy: Philosophy and the Public Good (Illinois: Open Court, 1976) 209Google Scholar; Feinberg, J., “Paternalism” in Sartorius, R., ed., Paternalism (Minneapolis: University of Minnesota Press, 1983) 7Google Scholar; Carter, R., “Justifying Paternalism” (1977) VII Canadian Journal of Philosophy 133CrossRefGoogle Scholar; Van De Veer, D., Paternalistic Intervention: Vie Moral Bounds of Benevolence (Princeton: Princeton University Press, 1986).CrossRefGoogle Scholar For the purposes of this study, “paternalism” is any interference or constraint with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced or controlled.

⁴⁸ TO-99/553, case number 4.

⁴⁹ This assessment was made by her family physician and was not disputed.

⁵⁰ It should be noted that OCCB's overall record includes decisions that do not demonstrate a similar commitment to the value of personal autonomy. The most obvious examples are Re Koch [1997] 33 O.R. (3d) 485 (Gen. Div.) and Starson v. Swayze, [1999] O.J. No. 4483 (Sup. Ct.). In both cases, the OCCB rejected appeals over finding of incapacity and in both cases, the courts later overturned the OCCB's decisions. The courts' decisions showed how OCCB failed to give proper weight to personal autonomy and made paternalistic value judgements with regards to the appellant's mental condition. The Koch decision was made prior to the cases examined in this study and one may thus argue that the findings of this study reflect the Board's implementation of the Koch lesson.

⁵¹ For an analysis of political and social factors that brought about the abolishment of the Advocacy Act, see Lightman, E.S. & Aviram, U., “Too Much, Too Late: The Advocacy Act in Ontario” (2000) 22:1J.L. Soc. Pol'y 25Google Scholar [“The Advocacy Act in Ontario”].

⁵² See section 71(1) of HCCA. The Board had to mention this subsection in its reason, in order to educate the hospital (see TO-98/639, case no. 1 lat 3).

⁵³ TO-99/220, case no. 9.

⁵⁴ See section 59 of MHA and see A.G. case ibid., at 2.

⁵⁵ Ibid.

⁵⁶ TO-99/143, case no. 10.

⁵⁷ Ibid. at 5.

⁵⁸ In their interviews, both Michael Bay, supra note 15, and Judith Wahl, Head of ACE - Advocacy Centre for the Elderly in Toronto, Ontario (interview, 29 December 1999) expressed concerns about how the rights of elder people were not observed by assessors, physicians, and other care providers.

⁵⁹ This relates to a much broader social phenomenon of professional paternalism and its impact on patients and the elderly. See in general Keen, E., Drugs, Therapy, and Professional Power (Connecticut: Praeger, 1998) at 157–65.Google Scholar See also Hayry, H., The Limits of Medical Paternalism (London: Routledge, 1991)CrossRefGoogle Scholar and Katz, J., The Silent World of Doctor and Patient (New York: Free Press, 1984).Google Scholar

⁶⁰ A good example of OCCB's awareness of the need to tailor its decisions to the specific fields of incapacity can be found in the V.I.M case (TO-99/425, case number 12), where the Board found a subject incapable with regard to consent to admission to a care facility but found her capable of managing her finances. (See also a similar case with different findings about incapacity and capacity TO-98/395, case no. 3). To some extent, this is expected given the nature of HCCA (which frames most OCCB cases), i.e., finding incapacity in the context of consent to a specific medical treatment.

⁶¹ See “From Lunacy to Incapacity”, supra note 7.

⁶² The OCCB adopted decisions defining the scope of incapacity in terms narrower than “property” or “personal care” only in cases of incapacity with regard to specific medical treatments or admission to a health care facility. For example, see TO-98/394, C.C. v. North York General Hospital, (case no. 13/14) where the board examined the question of capacity to “manage property” as a binary (yes/no) question (and decided that the person had capacity to manage his property), without considering whether this question could be broken down to more narrow and specific capacity-questions such as “is the person capable of managing a bank account?”; “is the person capable of managing $6,000 of monthly income?”; “is the person capable of managing assets of $800,000?”.

⁶³ Although “property management incapacity” might seem a field of incapacity which is difficult to sub-divide, this is not the case in real life. For example, there is a significant difference between capacity of managing one's ordinary payments and that of managing one's investments in stocks and bonds.

⁶⁴ There is no up-to-date data with regard to the actual use of advance directives in Ontario available. For a comparative view on the situation in the U.S.A. see Where There Is a Will. Legal Documents Among the 50+ Population (Washington: AARP, 2000).

⁶⁵ See TO-99/562, case no. 3 at 6, where CCAC was unable to accept power of attorney for personal care given the numerous changes to the document since its execution and the improper execution of the document.

⁶⁶ For a description of the circumstances under which mediation has best chances of success, see the general discussion on mediation in Gary, S. N., “Mediation and the Elderly: Using Mediation to Resolve Probate Disputes Over Guardianship and Inheritance” (1997) 32 Wake Forest L. Rev. 397Google Scholar at 398 [“Mediation and the Elderly”]. Some of the OCCB cases were classic mediation cases, in the sense that it was clear that all parties had a common goal, had a very close personal relationship, and all had to continue to engage in personal relationships after the specific dispute was resolved. See for example the M.S. case (TO-99/344, case number 7), which involved a family dispute between the four children of an eighty-three year old woman over the location of a facility for her long-term care. All four adult children cared for their mother and all would have continued to hold close personal relationships with regard to their mother's care.

⁶⁷ For successful experience with mediation, see Talbert, R. & Karp, N., “Collaborative Approaches: Aging, Disability, and Dispute Resolution” (1995) Clearinghouse Review 638.Google Scholar See also Karp, N. & Wood, E., “Mediating Nursing Home Care Disputes: A Workable Option?” (1997) Clearinghouse Review 243Google Scholar [“Mediating Nursing Home Care Disputes”]. See also Karp, N. & Wood, E., “Mediating Care Conflicts in Nursing Homes” (1996) Mid-Atlantic Ethics Committee Newsletter 1.Google Scholar

⁶⁸ TO-99/1371, caseno. 1.

⁶⁹ Ibid. at 10–11.

⁷⁰ See also the K.W. case (TO-98/495, case no. 12), where the finding of incapacity with regard to admission to a care facility could have been avoided if proper community care services were available. For a broader perspective on Ontario's long-term care policy, see Williams, A.P.et al., “Long-Term Care Goes to Market: Managed Competition and Ontario's Reform of Community-Based Services” (1999) 18:2Canadian Journal on Aging 125.CrossRefGoogle Scholar