1. OPGT Presentation for Community Living
Presented by:
Karen Shaw - Team Leader, Investigation Unit and
Ben Pettigrew - Investigator
Public Guardian and Trustee (OPGT)
Date: September 21, 2016
© Public Guardian and Trustee, 2015.   

2. Presentation Overview
Roles/Mandates of the OPGT
PRESENTATION FOCUS - allegations and OPGT investigations about individuals who may be incapable and at risk of serious adverse effects

3. Roles of the OPGT Guardian of property and/or of the person
i.e. managing financial and/or personal care decisions for incapable people
Treatment decisions for incapable people
Investigations into allegations of incapacity and risk of serious adverse effects
Review of court applications for guardianship by family members
Register of court orders granted for guardianship: property and personal care (public record)

4. Roles of the OPGT (Cont’d)
Litigation guardian for incapable persons in civil litigation
Estate Trustee for people who die without a will and without next-of-kin in Ontario
Cemetery perpetual care fund administrator
Complaints about charities
Forfeited corporate property
Organizations at same Toronto location (Separate Entities):
Capacity Assessment Office
Accountant of the Superior Court .

5. PGT Authority to Manage Property/Finances
Statutory Guardian of Property:
Certificate of Incapacity by physician (inpatient receiving care/treatment - observation of mental disorder)
Mental Health Act (MHA s. 54 and Substitute Decision Act (SDA) s. 15
Certificate of Incapacity by a designated capacity assessor - SDA s. 16
Court Appointed Guardian of Property (SDA)
OPGT can apply for temporary appointment for 90 days or Permanent
Statutory Trustee (e.g. managing OAS, CPP, ODSP, OW, etc.)
OPGT may become statutory trustee following an investigation only
Continuing Power of Attorney for Property on consent (SDA)
OPGT may consent to being appointed as attorney (rare)

6. OPGT Statutory Guardianship s. 16 Capacity Assessments
A third party can request a capacity assessment when there is no Continuing Power of Attorney for Property (CPOA)
An individual can request their own assessment even if there is a CPOA
The individual being assessed must not object to the assessment
Requester must pay for the assessment
If person is declared incapable and OPGT becomes statutory guardian, the assessment cost may be reimbursed if the client has sufficient funds.
Capacity Assessment Office - provides information, a list of assessors and funding for low income requesters
‘Termination’ of OPGT’s Statutory Guardianship:
Appeal to the Consent and Capacity Review Board
Court Order
Undertaking by the attorney appointed by a CPOA
Application to Replace the OPGT by family

7. PGT Authority to Make Personal Care Decisions
Court Appointed Guardian of the Person
Only the Court can appoint a personal care guardian
OPGT appointed temporary guardian for 90 days or permanent guardian
A designated Capacity Assessor can assess a person’s capacity relating to personal care for court purposes. The assessment does appoint the OPGT (e.g. not in the same way as a s. 16 capacity assessment for property would)
Very few people need personal care guardianship
OPGT as guardian makes decisions - third parties propose the plan/ decision (e.g. the OPGT does not locate housing)
Treatment decisions under the Health Care Consent Act (HCCA) - alternative to personal care guardianship
Power of Attorney for Personal Care
OPGT’s policy is not to consent to appointment.

8. Guardianship and Treatment Activity Report
In , the OPGT:
Acted as property guardian for 11,336 individuals
Acted as guardian of the person for 18 individuals
Made 4830 treatment decisions (made by OPGT Treatment Decisions Consultants) for a variety of requests regarding medication, immunization, surgery, and admission to long term care facilities.

9. OPGT’s Investigation Unit
The Investigation Unit has investigators in:
Toronto, Hamilton, London, Ottawa and Sudbury
Investigations are conducted throughout Ontario
2014 Investigation numbers:
1502 investigations:
1300 investigations for property guardianship clients and estates
Almost 200 investigations resulted from allegations received (Approximately 3000 or more allegations received each year about individuals who may be incapable and at risk of harm, self neglect or abuse)

10. Duty to Investigate Allegations under the SDA
The relevant statute is the Substitute Decisions Act, 1992 as amended [SDA].
DUTY TO INVESTIGATE
The Public Guardian and Trustee shall investigate any allegation that a person is incapable of managing property or incapable of personal care and that serious adverse effects are occurring or may occur as a result. [SDA ss.27(2);62(2)]
In conducting an investigation under subsection (2), the Public Guardian and Trustee is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is required. [SDA ss 27(3);62(3)]

11. Definition of “Incapable”
Person is not able to understand information that is relevant to making a decision
Person is not able to appreciate (within reason) the consequences of making (or not making) a decision

12. Making an Allegation under the SDA
Allegations to the OPGT when a person is or alleged to be:
18 years of age and over for property (finance); and/or
16 years of age for personal care (health care, nutrition, shelter, clothing, hygiene or safety); and
incapable of managing property or personal care decisions;
at significant risk of personal or financial harm as a result of incapacity, when there are no other known alternatives
Allegations received by the OPGT usually relate to abuse from another party or the individual’s self-neglect

13. What Happens when an Allegation is Received by OPGT
OPGT Investigator will gather information from the person making an allegation.
Purpose: determine if it appears that the person may be incapable and at risk of serious adverse effects
What evidence is available?
What less intrusive alternatives are available?
Is guardianship by the OPGT required and is the OPGT last resort?
In most cases, the Investigator will provide the caller with suggestions to resolve risk.
The caller will be invited to call back should the matter not be resolved.
Alternatively, an investigation may commence

14. How Are Allegations Screened? Indicators of Mental Incapacity:
The Investigator evaluates available information about incapacity.
Presumed capable unless reasonable grounds to suggest otherwise
Investigator is not a trained assessor and does not conduct a formal assessment
Possible indicators of incapacity can include:
Inability to understand information relevant to making decisions
Inability to initiate or complete necessary tasks
Changes in lifestyle choices, decisions or behaviour(e.g. sudden self-neglect)
Changes in hygiene, nutrition, communication
Disorientation as to time, place, personal identity, or identity of significant people
Impaired thought processes
Problems with simple calculations
Memory loss
Perception difficulties, delusions, or hallucinations

15. How Are Allegations Screened? Indicators Of Serious Adverse Effects:
The Investigator evaluates available information about ‘serious adverse effects’ to determine risk
Risk must be significant
Evaluated on a case-by-case basis
What may be a risk for one person may not be for another
Possible examples of serious adverse effects:
Theft, loss or mismanagement of significant assets or income
Unusual and excessive spending
Self-neglect of finances impacting the necessities of life (e.g. food, shelter, medical care, etc.)
Failure to pay bills with serious consequences
Isolation, deprivation of liberty
Severe loss of weight, impairment of functions

16. Deciding to Open an Investigation Some Guiding Principles
OPGT as last resort
presumption of capacity
incapacity should not be concluded solely as a result of risky behaviour or poor decision making
lifestyle choices and cultural diversity should be considered
guardianship should not be sought unless it can be effective and of substantial benefit to the person
recognition that guardianship necessarily entails a significant loss of personal autonomy
consider prior capable and current wishes of person

17. Purpose of an Investigation
If an investigation is opened:
The purpose is to determine if the OPGT should apply to court to be appointed temporary guardian of property or of personal care, in order to prevent or stop the harm from occurring or continuing
The OPGT is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is required
Investigations are intrusive – alternatives to guardianship are often preferable

18. Conducting an Investigation
Investigator conducts telephone and in-person interviews and gathers records
Entitled to information about alleged incapable person and not third parties
Access to interview the Alleged Incapable Person - SDA s. 82
Access to financial and medical information - SDA s. 83
Access to information from Health Custodians -PHIPA s. 43
OPGT has no legal authority to make decisions or provide directions during an investigation

19. Right to Access Information During an Investigation
OPGT has authority to collect information from:
The person’s guardian and/or attorney under a power of attorney
A bank, loan or trust company, credit union or other financial institution
A member of a College of a health profession (e.g. doctors, nurses, dentist, chiropractor, psychologist, psychiatrist etc.)
A facility or a controlled-access residence (i.e. a hospital or long term care facility)
Administrator of a pension fund
Real estate broker or agent
SDA s. 83(1) & (4)
OPGT has authority to obtain information from health care custodians:
(e.g. CCAC, pharmacies, LTC, ambulance, homes for special care, etc.)
Personal Health Information Protection Act, Section 43(1)(e)

20. Possible Outcomes of an Investigation
Insufficient evidence or guardianship not appropriate
Informal supports to help with risk
Treatment decision made under HCCA
Power of Attorney
e.g. Appointment of a new attorney (POA) for property or personal care if person is capable of doing so (SDA s. 8 and s. 47)
Assessment at a Schedule 1 Facility and issuance of a Certificate of Incapacity– appoints OPGT for property (MHA s. 54 and SDA s. 15)
Capacity Assessment by designated capacity assessor and issuance of a Certificate of Incapacity – appoints OPGT for property (SDA s. 16)
Statutory Trusteeship of pensions by third party or OPGT
Court ordered guardianship by family/friend
Court ordered guardianship by the OPGT as a LAST RESORT
Other Court Application (e.g. court direction or passing of accounts)

21. PGT Disclosure of Information
The PGT is not able disclose information obtained during an investigation unless authorized by law (e.g. required to obtain release of information, as part of a court application, court ordered)
When the PGT is appointed guardian, the guardian may disclose information in accordance with principles of the SDA

22. Misconceptions Allegation  Investigation
Abuse/Vulnerable  Incapacity
Mental Illness  Incapacity
Investigation  Guardianship
Incapacity  Guardianship

23. More Misconceptions Getting the PGT appointed as guardian:
Cannot jump the person to the front of a waiting list for services or housing
Cannot force the person to stop behaving in a manner perceived as undesirable or risky (e.g. cannot stop the person from drinking alcohol or hoarding)
Cannot make the person’s family get along
Cannot create more resources than the person is legally entitled to
Cannot force those who have spent the person’s money to give it back if it is gone
Cannot punish those who have harmed or taken advantage of the incapable person

24. Remember The OPGT is NOT a crisis intervention team
The role of the OPGT is one of a substitute decision-maker of LAST RESORT
The OPGT only operates in the civil judicial system not the criminal system so we can not lay charges

25. Making an Allegation
For further information and brochures, visit our website at:
BROCHURES available (download or request hard copies)
Becoming a Guardian of Property
Duties and Powers of a Guardian of Property
Guide to the Substitute Decisions Act
Power of Attorney: Questions and Answers
Power of Attorney Kit
Role of the PGT in Guardianship Investigations
Role of the PGT in Providing Property Guardianship Services
The Capacity Assessment Office

26. Making an Allegation (cont’d)
To Make an Allegation:
Call: (416) or ;
Fax: (416)
Mail:
Office of the Public Guardian and Trustee, Guardianship Investigations Unit, 595 Bay St., Ste. 800, Toronto, Ontario, M5G 2M6
Provide information about:
Alleged incapable person’s name, address and date of birth
alleged incapacity
financial and or personal care risk
alternatives that have been tried

27. Other OPGT Phone Numbers
OPGT Toronto - Main Number or
Treatment Decisions Unit
Toronto Region: or
Hamilton Region: or
Ottawa Region: or
Sudbury Region or
London Region or
Capacity Assessment Office or
Guardianship Register/Intake Unit
Estates Administration