"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Monday, May 27, 2013

The Pros and Cons Power of Guardianship

I've written extensively in the past about the various options open to parents to manage their legal relationship with their adult challenged children.

For some families, a power of attorney and personal directive might be the answer. For other families, it won't. For some families, guardianship will be the only sensible option.

I've also written on some of the reasons why guardianship can be such a useful tool in the right circumstances -  for everything from

  • being involved with the adult's medical care and having access to their medical records 
  • to managing their assets (finances)  
  • to the control it gives in dealing with third parties, such as various government departments and agencies on the adult's behalf.

Although all of the above obviously have great potential to be important in your adult child's life, today I would like to take a closer look at the last item listed above; namely, the control guardianship gives in dealing with third parties, such as various government agencies and departments.

Whether dealing with the Canada Revenue Agency around income tax or issues around the Disability Tax Credit, various financial institutions or financial planners as you manage your child's RDSP or Nova Scotia's own Department of Community Services (DCS) in regard to issues of "work placement" or "placement" of your adult child in a residential care facility, guardianship can be a very useful tool.

But guardianship can be particularly useful with regard to that latter item (dealing with DCS). Not only does having guardianship allow you to direct where your child lives and works, but it will allow you to be involved in ongoing care decisions with respect to such placements.

It's no secret that guardianship has, on more than one occasion, proven very valuable for parents who were initially refused access to information and records concerning their adult child who was living in a residential care facility. Both administrators and social workers often consider concerned parents to be nothing more than “busy bodies”.

However, once a guardianship order is obtained, such parents generally find that both  home administrators and social workers stop trying to do an end run around them. Sometimes, being granted access to information and records is enough. Other times, however, concerned parents with guardianship might decide to move their child to a different living situation where the child will be happier and their ongoing interest and involvement are appreciated and encouraged.

A very powerful tool, no?

And yet, the saga continues.

Last year, when my oldest daughter turned 19 and we attended at the DCS office to have her moved into the adult program, I had a very long, very interesting chat with our worker's supervisor. You see, the worker had been very clearly telling me for quite some time that were I to be granted guardianship of my daughter (which she knew was my plan), she wouldn't be eligible to participate in the Province's Independent Living Program.

This statement was causing me some consternation, particularly since there was nothing to be found in the policy documents for the Independent Living program stating such a thing. And just for the record, that includes both the old policy documents and the new ones - not a mention of this requirement; uh uh, no way, no how.

So we had a long chat on the subject, during which she expressed her views and I expressed mine. And we both ended up, not so much agreeing to disagree as expressing a mutual acknowledgment that this was likely to become more and more of an issue for families and that the policy documents (or, more accurately, the Department's thinking) in this regard was out-of-date. In fact, I took it from our conversation that it was her intent to attempt to effect some change in this regard.

So imagine my surprise (okay, honestly, I'm not all that surprised - this is DCS we're talking about, right?) when I heard that these exact same statements were being made to other parents. In fact, as I heard it, the front line workers are going so far as to portray this fact as one of the "cons" of guardianship.

Well, that's certainly enough to make a parent sit up and take notice, isn't it?

So what's the scoop in this regard, you ask?

The scoop is this - although the Department is apparently obviously taking the position that if a person is subject to a guardianship order they are ineligible for the Independent Living Program, first, they have absolutely no policy document to back this up; and, secondly, even it were written in policy (which, let's be clear, it isn't), that still would not be the end of the story.

As we learned in the Dassonville case, the Department cannot simply rely on its Guidelines or policies to deny funding - in Dassonville, the Nova Scotia Court of Appeal held that even though the policy may not provide for the funding in question or even explicitly state that funding for a particular item is excluded, the Department must still look at the individual circumstances to see whether, in this case, the policy should not be followed.

In other words, contrary to what DCS is telling families, this is not, for one minute, a black and white, cut and dry issue. The Department has very little, if anything, to stand on from a legal point of view here. In fact, there's a very, very good argument to be made that as long as the adult meets the listed requirements of the program, they cannot be turned away simply because they are subject to a guardianship order.

In fact, the UN Convention on the Rights of Persons with Disabilities (which Canada ratified in 2010) specifically provides that individuals with disabilities have the right live independently and be included in the community.**


Article 19: Living independently and being included in the community

States Parties to this Convention recognize the equal right of all persons with
disabilities to live in the community, with choices equal to others, and shall
take effective and appropriate measures to facilitate full enjoyment by
persons with disabilities of this right and their full inclusion and participation in
the community, including by ensuring that:

(a) Persons with disabilities have the opportunity to choose their place of
residence and where and with whom they live on an equal basis with others
and are not obliged to live in a particular living arrangement;

(b) Persons with disabilities have access to a range of in-home, residential
and other community support services, including personal assistance
necessary to support living and inclusion in the community, and to prevent
isolation or segregation from the community;

(c) Community services and facilities for the general population are available
on an equal basis to persons with disabilities and are responsive to their needs.
[emphasis added]
So let them say what they like, I say. Because, quite simply, saying it - doesn't make it so.




And let's face it, the Department has a bit of a history of being somewhat ... shall we say a little less than fully honest and open when it comes to their dealings with families.

~  ~  ~  ~  ~  ~  ~  ~ ~  ~  ~  ~

And yet, some will say, all that might be fine and good but, personally, I don't have it in me to create extra problems or take on the Department in any sort of legal battle.

To which I say, fair enough. But I do.

** Also of relevance to this issue is Article 26.

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