If you would like easy to understand information on the new Registered Disability Savings Plan please visit www.rdsp.com.
For those of you who have been following along, this has been one of the most discussed issues since the RDSP was first launched in December of 2008. The availability of the RDSP across Canada has brought into focus the absence of comprehensive supported decision-making vehicles in the Canadian provinces, other than BC (Representation Agreement). Below you will see an excerpt from an edition of PLAN’s ActionPLAN, which details the policy reforms we are looking into that may provide solutions to the guardianship issue.
Excerpt from PLAN`s June 2009 edition of ActionPLAN – Jack Styan
The Issue
The RDSP has highlighted the limitations of our current legal system, which regulates decision-making for vulnerable adults. Aside from BC, families who wish to assist an adult family member to open an RDSP are limited to adult guardianship. Most people who are not able to manage their own RDSP would also be precluded from assigning a Power of Attorney. Jurisdictional issues between the federal and provincial governments are an added complication.
Most families and people with disabilities that we have spoken with find adult guardianship lacking on one or more counts, including:
- Cost;
- Loss of legal status;
- Indignity of being deemed “incapable”.
We have been working with the Federal Government, financial institutions, and other disability organizations to find a suitable solution. It’s a complicated issue to try and solve because of the many considerations involved.
A solution needs to include the following principles:
- Where people are able to manage their RDSPs, they should be entitled to manage their own affairs
- Where people are not able, the best people to act as account holders are people who they trust, who know them well and who are actively involved in their lives
- When it is necessary to grant authority to manage their RDSPs to another, the powers granted should be as targeted as possible
- People should remain involved in any decision-making process to the extent that they are able
- There needs to be a simple method of naming alternates or reassigning authority
- Any mechanism should be easily implemented and administered.
Solutions:
Reforming guardianship laws across the country would be the best and most far reaching solution as the positive impact of the reforms would be more far- reaching than measures that affect just the RDSP. This, however, is a long term solution and we want an immediate solution that will give people immediate access to the RDSP. The most promising solutions include:
1. Interpretation of “Legal Representative” by Canada Revenue Agency to include de facto guardian or next-of-kin. An interpretation which broadens the understanding of “legal representative” beyond powers of attorney and traditional adult guardianship (tutor, curator, trustee, committee, etc.), would enable a broader group of people to act on people’s behalf immediately.
2. Creating a new federal process that allows people to assign someone to act as the “trustee” of their RDSP, without a test for contractual competence, would enable transfer of responsibility for managing an RDSP without requiring guardianship.
There are several situations where a trustee of benefits can be appointed in a relatively informal and streamlined process. The processes protect people’s assets by assigning fiduciary responsibility.
Actions:
Look for more ongoing information on our blog on www.rdsp.com and add your thoughts and comments.
Raise your concern with both federal and provincial representatives when the opportunity arises. The concern about adult guardianship as an inappropriate method with which to assist people to handle their financial, personal or health care decisions is not well understood. We need people to know that it is a problem.