We are thrilled to announce that guardianship is no longer a barrier to accessing Family-Managed Home Care (FMHC)[1] funding. The Ministry of Health (MOH) has officially updated the definition of “Substitute Decision-Maker” in its FMHC Program Specifications to include:
“an individual managing Ontario government funding from the MCCSS specifically from the Passport Program, Ontario Works, and/or the Ontario Disability Support Program on behalf of the Client who is an adult.”
Together with Community Living Ontario, PooranLaw has been advocating for changes to the MOH policy for over three years. This change took effect on Thursday, September 1, 2022, only weeks after Maggie Hickey’s story appeared in The Toronto Star and only days after we filed Maggie’s complaint with the Human Rights Tribunal of Ontario.
WHAT THIS MEANS FOR FAMILIES:
Previously, if a person who turned 18 years old was considered incapable of entering into a contract, the only options for continuing to receive FMHC Funding were to appoint an attorney for property (under a Power of Attorney document) or have someone (usually a family member) pursue guardianship of their property. For many families, applying for guardianship was the only option available, given that some people with disabilities could not meet the legislative requirements to create a Continuing Power of Attorney for Property.
Guardianship applications involve an extremely lengthy, usually permanent, expensive legal process in which a court appoints someone to take over the property-related decisions of a person who has been found incapable of managing their own property. A guardian of property is authorized to manage and make decisions concerning a person’s finances, income, investments, benefits and funding. Because guardianship restricts a person’s decision-making rights, typically for the rest of their life, the law requires that guardianship only be approved as a mechanism of last resort.
In light of the MOH’s recent changes, guardianship is no longer the only viable option for families in such circumstances.
The new, amended definition means that families no longer have to make the difficult decision of obtaining guardianship in exchange for the home care funding that their loved one is otherwise eligible to receive.
WHY IT MATTERS:
Requiring guardianship as a precondition to receiving funding should require robust justification, given that it strips people of their decision-making rights, impacts their dignity and limits their voice.
In our view, making FMHC funding entirely contingent on relinquishing one’s legal rights is contrary to the Substitute Decisions Act, the Patient Bill of Rights, the Ontario Human Rights Code the Canadian Charter of Rights and Freedoms, and the UN Convention on the Rights of Persons with Disabilities.
The expanded definition of Substitute Decision-Maker in the FMHC Program Specifications will enable more people and their families to obtain or maintain much-needed supports. By recognizing a broader range of decision-makers, the MOH has implemented a less restrictive course of action that is consistent with our legislative framework and our human rights obligations, domestically and internationally.
LIMITATIONS:
While we are delighted to see the FMHC program’s definition of Substitute Decision-Maker being expanded, there are still limitations to the MOH’s approach. For example, the updated definition does not expressly recognize a supported decision-making model, which would emphasize a person’s autonomy and provide a legal framework to address the varying levels of support that people may require when making everyday decisions. In addition, if a person is not receiving ODSP benefits, Ontario Works assistance (which both end at 65 years old), or Passport Funding, this newly expanded definition would not apply. In such cases, guardianship would remain the only option for those who cannot manage their funding independently or create a Continuing Power of Attorney for Property document.
The MOH has taken an important first step; however, it has not fully addressed the gaps inherent in the FMHC program. We are hopeful that the government will begin to recognize alternatives to guardianship such as supported decision-making, which goes further than simply allowing for and identifying a Substitute Decision-Maker. Supported decision-making models already exist in other provinces and territories and could serve as useful examples here in Ontario.
NEXT STEPS
PooranLaw will continue its advocacy efforts with respect to promoting an accessible and inclusive FMHC program.
Please don’t hesitate to contact us directly with any follow-up questions.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
[1] FMHC is a government funded initiative intended to provide greater autonomy and flexibility to individuals who receive in-home support. It can be used by individuals or their families to select and schedule their service providers directly. It ensures people have access to adequate disability-related supports and services to lead a full life where they are supported and empowered to constantly learn, expand their skills and find their own voice.
