Those who know me at all (or have been to any of my presentations) know how I feel about Nova Scotia's guardianship legislation, the Incompetent Persons Act. To call it old or out-of-date would be more than flattering and undeserved. In fact, antiquated would be a much better word. I can say, without a shadow of a doubt, that
You see, although most other provinces provide for the appointment of a guardian of the person (to make personal care
decisions for the adult) and a guardian of the estate (to make financial decisions for the adult), in Nova Scotia full powers for both personal and financial decisions are given to the guardian, even if the adult is only in need of one type of decision-making assistance. It’s an all or nothing, one size most definitely does not fit all, take it or leave it kind of deal.
There's nothing new here; in fact, this is very old news. As far back as 1993, the Law Reform Commission of Nova Scotia publicly recognized that the Incompetent Persons Act was no longer appropriate and suggested that a new law be passed that would reflect certain fundamental principles, like
- not imposing guardianship simply because a person makes a decision that others do not understand or agree with;
- presuming everyone to be competent to make their own decisions unless it is proven they are not;
- inquiring whether other less restrictive alternatives have been exhausted;
- focusing on the adult’s abilities, allowing them to participate in decision-making as fully as possible in as many areas as possible; and
- taking into account the wishes of the adult (with the court deciding how much weight, in the circumstances, should be given to those wishes).
Two years later the Law Reform Commission actually drafted a new proposed Adult Guardianship Act. The heavy lifting was done for the government of the day. The legislation had been drafted. Cue the applause.
However, instead of a new Act, in 2007 the legislation was amended to remove terms like “lunatics” and “insane persons” and replace them with the somewhat more politically correct “incompetent person”, which some might find, in and of itself,to be rather ironic.
And yet, that is not the irony I am referring to.
To really understand my perspective here, we need to take a step back. For several years, through every public forum I found myself in and in numerous private conversations with parents and others, I been expressing my opinion that we need to work together and lobby to have our current guardianship system changed on every possible occasion. We need to make the process simpler and less expensive, I explained. Even more importantly, we need to deal with some of the many issues noted above, I argued.
Sadly, much like the government's response to the Law Reform Commission's
Fast forward to 2015. After years of no one stepping forward to take on this very important issue, how has it has finally come to the attention of Joe Q. Public? Why is the issue of Nova Scotia's guardianship legislation suddenly receiving much-deserved media attention?
If you don't know the answer to that question, you must have been very immersed in your Christmas preparations, indeed. It is due to the situation with Landon Webb, of course.
And, I find that extremely ironic given that I have had the pleasure of knowing the Webb family, both personally and professionally, for over ten years. In fact, my first contact with with the family was with respect to Landon's situation. And not for one minute do I believe that this particular fact situation is the appropriate vehicle to bring this issue forward.
Yet, I'm not here today just to comment on the vagrancies of the universe. This issue is far too important and complex just to vent about.
No, much like I did when dealing with the complex issue of the criminalization of persons with special needs, in order to give this very important topic the attention it needs, I would like to proceed with a multi-part conversation.
Part I is the irony.
As for Part II, we could start with the realization that as important as it is to recognize the issues with the Incompetent Persons Act, it is equally important to take a close look at the alternative being presented to guardianship at the moment; namely, "supported decision-making". *
* To really immerse yourself in this subject and understand the Canadian experience with supported decision-making prior to Part II, just follow this link.