"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

Sunday, December 31, 2017

Adult Guardianship Representation in Nova Scotia [Part I]

Adult guardianship has been a very popular topic since this blawg first came into being. But the lay of the land has completely changed as of 12:01 a.m. on December 28, 2017.

Why is that, you ask?

Quite simply, at that time,  a new piece of legislation, the Adult Capacity and Decision-Making Act, came into force. This new legislation has significantly changed the scope, extent and meaning of guardianship in Nova Scotia.

How's that, you ask?

First off,  not only does the word "guardian" not appear in the legislation's title, but you won't find it or the tern "incompetent person" anywhere in the text of the legislation, either. Meaning that those of us who were guardians a mere few days ago were magically transformed into "representatives" on the morning of December 29th.

Although I believe that change in terminology is important (will anyone even know what you're talking about when you say you are someone's representative?), it is only the most inconsequential of the changes this legislation brings.

Although the  government engaged in a consultation process (both prior to and after drafting the new legislation), many felt the process was lacking and should have been more extensive, so as to reach all stakeholders (meaning all  the individuals working with and, more importantly, affected by the legislation).

I believe some of these concerns are legitimate. Personally, although heavily involved in the second round of consultation process (and that, really, only by accident), it troubles me to say that I saw very few positive changes come from that process.

I am only one of many who have publicly expressed their concerns with the new legislation; however, I must admit that I find it somewhat ironic that my concerns tend to be close to the polar opposite of those expressed by many others.

But before we go on to examine the new legislation (and my concerns) in more detail, I would like to take a look back.

For many years, I have advocated for changes to Nova Scotia's former adult guardianship legislation, the Incompetent Persons Act, changes that would bring the legislation into the 21st century. And I'm not the only one.

Over twenty years ago, the Nova Scotia Law Reform Commission advocated for dramatic change to this legislation, noting problems with the law's

• offensive language;
• all or nothing approach;
• emphasis on property;
• lack of monitoring of guardians;
• lack of respect and autonomy; and
Charter violations.

To be clear, there were significant issues with the previous legislation, including
  1. Offensive language - the legislation was copied from an old English law and used the same language ("lunatics" and "insane persons") as when first adopted.
  2. 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 were given to the guardian, even if the adult was only in need of one type of decision-making assistance. It was an all or nothing, one size most definitely does not fit all, take it or leave it kind of approach.
  3. Emphasis on the protection of property without adequately dealing with personal guardianship issues. For example, if no one was available to become guardian of the estate (the financial matters) of an adult, the Public Trustee could apply to act as guardian of the estate. But no similar government assistance existed if no one was available to become guardian of the person, meaning these adults were forced to do without any formal personal decision-making assistance.
The Canadian Charter of Rights and Freedoms requires some basic procedural safeguards, which
  include the following:

• a fair and impartial hearing during which the person is entitled to full legal rights, including the right to be notified of an application and hearing;
• the right to be represented at the hearing;
• the right to be heard at the hearing;
• the right to an interpreter;
• the right to call, examine and cross-examine witnesses;
• the right to review documents that are submitted to the court;
• the right to secure an adjournment of proceedings;
• the right to be informed of the outcome and the reasons for a decision; and
• the right to an appeal.

Although many of those necessary safeguards were technically available under the Incompetent Persons Act, it was often extremely difficult for a person subject to a guardianship application to make use of them for a number of reasons, including a lack of knowledge about the legal system, a lack of support and assistance and the inadequacy of financial assistance to hire a lawyer.

Some also expressed concern that an adult could have difficulty opposing a guardianship application, as the proceedings often seemed complex, intimidating and expensive.

Hearings themselves were also sometimes lacking in terms of procedural fairness. The adult was often neither present nor represented by a lawyer and medical evidence was accepted without question, with medical practitioners often absent from court.

Once a guardian was appointed, the adult could have difficulty challenging the order by way of appeal or seeking to revoke the guardianship order. When a person no longer has control over his or her affairs, he or she may also lose the right to start a legal action and the "ability" to instruct and pay for a lawyer.

In a 1993 Discussion Paper on Adult Guardianship in Nova Scotia, the Law Reform Commission of Nova Scotia found the Incompetent Persons Act to be no longer appropriate and suggested that a new law be passed which would reflect the following fundamental principles:

  • a recognition of an adult's right to autonomy and self-determination (guardianship should not be imposed simply because a person makes a decision that other people do not understand or agree with);
  • a presumption of competence (everyone should be presumed to be competent to make their own decisions unless it is proven that they are not);
  • would be used as a last resort (an inquiry should be made as to whether other less restrictive alternatives have been exhausted;
  • be as least restrictive as possible (it should focus on the adult's abilities, allowing them to participate in decision-making as fully as possible in as many areas as possible); and
  • take into account the wishes of the adult (with the judge deciding how much weight, in the circumstances, should be given to those wishes).

In fact, in 1995, the Law Reform Commission went so far as to draft a new piece of proposed legislation, called the Adult Guardianship Act [p. 80 of link]

Sadly, until now, the furthest we had gone in Nova Scotia were amendments made in 2007 that removed terms like “insane person”, “lunatic” and “dangerous idiot” and replaced them with the somewhat more politically correct “incompetent person”.

Although the new legislation can certainly be seen as a step forward in many ways, change (as we all too well know) can be both good and bad, depending on perspective. In my next post, we will take an in-depth look at how radically the concept and law surrounding adult guardianship has changed and my concerns with the new legislation.

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