Legal Capacity and Supported Decision-Making
March 2023: Each time the Individualized Funding Coalition for Ontario holds a gathering, a meeting or makes a presentation, the topics of Supported Decision-Making and Guardianship come up. Concerns are raised about: 1/ the lack of supported decision making in Ontario, and 2/ the threat of Guardianship that seems to always be lingering. These things together, have caused a great deal of fear and anxiety among people, families and loved ones – especially among parents who are aging. These concerns came out again at the Now is the Time event, March 23, 2023 in conversations with people, families and others following the event. Thank you to all of the people, families and loved ones who openly shared their concerns and understanding of the issues. Your messages led to the preparation of this Action page. It is important to note, however, that the 2023 Budget announcement on March 28, 2023 led to some editing and adaptations to the information.
Support for Decisions: Learning to support people using different approaches and communication can ensure that people have a ‘say so’ over their life. Supported decision-making would provide a legal way to support a person with their decisions. This is important for someone who otherwise might not be seen has having capacity under current laws. It is an alternative to guardianship.
Guardianship removes a person’s human rights – the right to decide and make decisions about their life, to have a bank account in their name, and so much more. Guardianship is expensive, difficult and time consuming. It is not necessary if other approaches are in place to support decision-making. Believing myths about guardianship could put people at risk. For example: parents may think they automatically continue to be guardians once their family members turn 18; parents may believe having guardianship protects their family member; parents may not understand that guardianship does not pass on to another trusted person once the guardian dies even if it is written into a will. They may not understand that if they obtain guardianship, and deem their family member incapable, there is no going back. Once they die, their son or daughter is at risk for the public guardian and trustee to take over without another trusted family or friend to step in quickly.
Supported decision-making is in-line with Article 12 of the United Nations (UN) Convention on Person’s with Disabilities. Guardianship is not. The UN is clear that no person with a disability should have their rights removed, but rather they should receive legally recognized supportive approaches to assist them with their decisions.
Registered Disability Savings Plan (RDSP), Plan Holders and the December 31, 2023 deadline.
On December 31, 2023 the temporary provision for parents, spouses and common law partners to be plan holders of a person’s RDSP, was due to end. There would have been no avenue to access RDSP funds for folks whose capacity is in question under the law, unless someone obtained guardianship. Thankfully, that changed on March 28, 2023 with the announcement of the 2023 Federal Budget. The provision for parents, spouses and common law partners will be extended. The Budget also proposes expanding that to include adult siblings. Although this is welcome news for many, it still leaves out people who have no family whose capacity would come into question. These folks cannot open an RDSP in the first place. It leaves out people whose parents pass away, and there are no siblings.
The issues regarding qualified plan holders were identified and written about in 2009, by Jack Styan in an article called Guardian and the RDSP: Update. In the year 2012 the Federal government put temporary provisions in place to enable parents, spouses and common-law partners to be plan holders on behalf of the person (the beneficiary):
“The Budget announced the Government of Canada’s commitment to work with provinces and territories to develop standardized, streamlined processes that provinces and territories could adopt in order to facilitate and simplify the process of opening RDSPs for adult beneficiaries who lack contractual competence. In the interim, while these processes are being developed, the Government of Canada has temporarily expanded the definition of who may be the plan holder of an RDSP. Until the end of 2016, a beneficiary’s spouse, common-law partner or parent will be able to become the plan holder and open the RDSP on behalf of an adult beneficiary who might not be able to open a plan due to concerns about their ability to enter into a contract. These temporary rules are intended to afford provinces and territories sufficient time to develop long-term solutions to address RDSP legal representation issues. This interim measure came into effect as of June 29, 2012 when Bill C-38 received Royal Assent.” (Q & A on RDSP Changes, 2012)
These temporary provisions were extended with the Budget announcement of 2018 until December 31, 2023. As of March 28, 2023, the temporary provision for qualified plan holders was extended again until 2026.
The original intention of the federal government in 2012 was to work with the provinces and territories to ensure solutions/alternatives would be in place across the country. Today, in March of 2023, one territory and five provinces have legal approaches that allow for plan holders, under their laws, to open an RDSP (without the need for guardianship.) These are: Yukon, (a northern territory), British Columbia, Alberta, Saskatchewan, Manitoba and most recently, New Brunswick. The remaining provinces and territories do not have any legal means in place for alternatives to guardianship.
What this means for people living in Ontario? In Ontario today, there are many people who have no family, who cannot open an RDSP, when their capacity is in question. These people are unable to benefit from this long-term savings plan. For more than 15 years that has been the reality. While we expect it was never the intention of the federal government to discriminate against a cohort of people with disabilities in the Income Tax Act – in the end that was the result. Without legislation for a trusted legal representative outside of family in Ontario, people without family who cannot be their own plan holder under current laws, will continue to go without an RDSP.
Again, as we approach the year 2026, with no legal way for people who need alternative options to be supported with their decision-making, AND if there is no expanded/enhanced description for qualifying plan holders in the Income Tax Act – RDSPs will not be accessible to the people they were intended for. Aging parents and siblings will again live with anxiety about the future, as they have this past year. This means many people will not be able to get their RDSP money out (unless more temporary provisions are made beyond 2026.)
Education and lobbying in Ontario has not resulted in new legislation
Many research papers, position papers and reports have been written on the subject of supported decision making. Options, alternatives, and legal opinions have been tabled. Life experiences have been shared. Requests for change have been made to the Attorney General in Ontario with no success. People, families and trusted loved ones cannot count on the province of Ontario at this time.
At the Now is the Time event, held March 23, 2023 anxiety was running high as the clock ticked toward the December 31, 2023 RDSP deadline. Thankfully, the 2023 Federal Budget announcement has changed that ‘temporarily’ for people who have parents as plan holders. And it will change things for those who have siblings and no parents as well. Unless more work is done by the Ministry of Finance to broaden the provisions and work toward a Canadian solution anxiety will run high again in 2026. While the RDSP Action Coalition in Ontario has taken on broader advocacy for supported decision-making legislation in Ontario, their work has not moved the ‘needle’. Nor have decades of work prior to this.
Where can one’s energy go? Where can we make the biggest difference? Now? Today? Taking action to request more changes to the Income Tax Act is where people, families and allies may want to put their energy at this time!
Because the RDSP is a federal program, a good solution to being able to open and access an RDSP for the ‘many’ lays with the federal Minister of Finance. The Minister has the power to make changes to the Income Tax Act, as we have seen.
Take Action! Ask for MORE changes to the Income Tax Act!
The precedent has been set with temporary provisions that enable qualified Plan Holders in jurisdictions where approaches like supported decision-making have been non-existent. Here are two things, we have heard people and families say about RDSP plan holders:
- Continue the current practise for parents, spouses and common-law partners to be plan holders (Note: until March 28, 2023 this was a concern, provisions are now in place until 2026.)
- Expand the definition for qualifying plan holders to include: siblings and trusted others (e.g., people who are close to the person with disability from a support network, support circle, neighbourhood, etc.)
Many things have changed since the first temporary definitions/provisions were made to the Income Tax Act regarding plan holders in the year 2012. Let’s call upon on the Minister of Finance to expand the criteria for qualifying plan holders for the following reasons:
- Parents as plan holders are aging: with no alternatives to guardianship in Ontario access to the funding they have invested in as a protection for the future is at risk.
- Adult siblings are taking on responsibility and worrying about accessing their sibling’s RDSP in the future.
- Once parents are gone, people who need assistance with decision-making areas of life will not be able to access their own RSDP funds.
- Some individuals without family have never been able to open an RDSP in the first place.
- People who have no family need a representative they can trust to be plan holder – someone who would support their decisions. These people should not be left out.
What to ask for: Permanent additions to the Income Tax Act that would define qualifying plan holders to include: parents, spouses, common-law partners, siblings, and trusted others from a support circle or network of support. Why: This would result in more RDSP’s being taken up, and guaranteed access to RDSP’s that are already established. Changing the Income Tax Act does not cost money.
It is a good solution to enable MORE PEOPLE LIVING WITH DISABILITIES to benefit from an RDSP in the provinces and territories where there are no legally recognized approaches to supporting people with developmental disabilities and others in their decision-making. It would end the unexpected discrimination that has occurred since the inception of the RSDP – leaving out a group of people with disabilities from the plan.
Looking ahead: Following this, a next step would be for the Ministry of Finance to establish national standards/approaches for supporting decisions across the country. Providing alternatives to guardianship, like supported decision-making, would align Canadian practises with the United Nations Convention for Persons with Disabilities and with our own Canadian Charter of Rights and Freedoms.
Ask our Federal Ministers for additional changes to the Registered Disability Savings Plan (RDSP) through the Income Tax Act. Send your letter to:
- The Honourable Chrystia Freeland, Minister of Finance – firstname.lastname@example.org
- The Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion email@example.com
Also consider copying your letter to:
- Randy Boissonnault, Associate Minister of Finance firstname.lastname@example.org
- Michael Sabia, Deputy Minister of Finance email@example.com
- Irek Kusmierczyk, Parliamentary Secretary to the Minister of Employment, Workforce Development and Disability Inclusion Irek.Kusmierczyk@parl.gc.ca
- Your local Member of Parliament (MP) to ensure they know about the RDSP issues people are facing: To find your local MP/federal representative go to: http://ourcommons.ca/Members/en/search where you can view a list by name or do a search by your postal code.
Tell your MPP about the need for Supported Decision-Making in Ontario
It is important that your local MPP (Member of Provincial Parliament) becomes more aware of the situation in Ontario. Let your MPP know that Ontario is lagging behind most other places in the world – behind the United Nations Convention for Persons with Disabilities for more than a decade, behind other countries, and behind most provinces in Canada. Let your MPP know what that means for your life, your family member’s life or your friend’s life. Ontario needs a legal way to support people’s decisions – it is a human rights issue! Without a supported decision-making option people are left too vulnerable!
To find your local MPP use this link: https://www.ola.org/en/members
For those who may be interested, here is some additional reading:
- People First of Canada and Legal Capacity: https://www.peoplefirstofcanada.ca/priorities/legal-capacity/
- Guardianship and the RDSP Update, 2009: https://www.rdsp.com/2009/07/14/guardianship-and-the-rdsp-update/
- Q & A on RDSP changes, 2012: https://www.rdsp.com/2012/07/11/federal-government-releases-qa-sheet-on-rdsp-changes/
- Implementing Equal Access to Legal Capacity in Canada https://irisinstitute.ca/resource/implementing-equal-access-to-legal-capacity-in-canada-experience-evidence-and-legal-imperative/
- Guardianship as a Last Resort, by Brendon Pooran, Stephanie Dickson, and Saquiba Rahman: PL_PUB_40_ETPJ_239-PooranDicksonRahman (1)
- Inclusion Canada, Legal Capacity: https://inclusioncanada.ca/campaign/legal-capacity/
- Legal Representation and the Registered Disability Savings Plan, RDSP Action Coalition for Ontario: Legal Representation and the RDSP