"The difference between a successful person and others is not a lack of strength, not a lack of knowledge, but rather a lack of will."

~ Vince Lombardi

Saturday, January 16, 2016

Let's Talk Landon Webb Guardianship ~ Part III

Does Nova Scotia's guardianship legislation needs a MAJOR overhaul? Absolutely.

Is it appropriate to throw out the baby with the bathwater and remove the option of guardianship completely from provincial law? While some in the disability community might respond in the affirmative to that question, you will find me on the side of those strongly shaking their heads, NO.

I'm not naive. I realize that many take the view that guardianship should never be a legal option because it “discriminates”against challenged individuals and takes away their right to make choices
for themselves.

In fact, the Canadian Association of Community Living (CACL) has characterized guardianship as "an ancient mechanism that was constructed without consulting people with disabilities" and takes the position that "supported decision-making" is not only preferable to guardianship, but given that "guardianship laws assume that some people do not have the capacity to make legally binding decisions" has invited us to "adopt a paradigm shift in which everyone has an equal legal capacity, without distinction based on disability."


What is Supported Decision Making (SDM)?
SDM means that a person can accept help in making decisions without relinquishing the right to make those decisions. With SDM, freedom of choice is never violated. The wisdom of a person’s choices is not challenged, allowing everyone the dignity of risk.

In theory, SDM helps a person to understand information and make decisions based on his or her own preferences. The feeling is that while guardianship laws theoretically protect people with disabilities from abuse, in practice they open the door to abuse. Some believe that guardianship facilitates institutionalization; the guardian can easily give consent even when the person opposes being institutionalized. One decision by the authorities and a person loses the right to decide where to live, loses the right to vote, the right to choose who to marry, the right to start a business. This results in living in a humiliating and degrading way.

We are told that the fact that others might view a decision as foolish or ill-advised doesn't mean a person in incompetent. The courts speak of the right to be KNOWINGLY foolish and the right to VOLUNTARILY assume risks; some case law speaks of the right to live life on the edge. Which is all well and good.

Let me say that I agree with a lot of the concerns set out above. In fact, speaking only as a parent, I love the concept of SDM in the abstract. My adult child being given that the information she needs to make responsible adult decisions.

What's not to love?




In Part IV, I will explain my concerns with SDM in the real world.

Thursday, January 7, 2016

Let's Talk Landon Webb Guardianship ~ Part II

I must admit that this was most definitely not what I had in mind for Part II of this series, as I had have no intention of making any further comment on Landon Webb's personal situation, However, comments such as the below from the editorial in yesterday's Chronicle Herald simply cannot go unanswered.
We are hopeful that the courts will rule that, no matter what Mr. Webb’s disability, he wants to live in society and should have the right to do so. No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community.
Really?

No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community?

I can see thousands of individuals with disabilities and their family members across the province shaking their heads in disbelief ... wondering why in the world this thought had not occurred to them, too.

At any rate, I sincerely hope both the Nova Scotia Human Rights Commission and Joe Q. Public can keep that concept in firmly in mind when the human rights complaint brought by three residents of Emerald Hall is heard later this year.

Yes, this is the very same human rights complaint where individuals had been forced to live in a psychiatric hospital for up to 13 years (with no end in sight) for the simple reason that the Department of Community Services either couldn't or wouldn't provide them with placement in the community.

The very same complaint where the investigation conducted on behalf of the Human Rights Commission found that “the existence of discrimination cannot be denied", yet, incredulously  the investigator recommended that the complaint be dismissed. That would have been the end of the matter had the complainants' lawyers not fought on and brought the matter before the Commission for a review, arguing successfully that it should go forward to a hearing.

News Flash #1: Individuals with disabilities who cannot live in the community without support need someone to provide them that support.

News Flash #2: Caregivers don't work for free - someone has to pay them a living wage.

And just who would that "someone" be? For the uninitiated, it would be the provincial government in the form of the Department of Community Service's Disability Support Program.

But what happens if you are forced to rely on a system where the wait list for residential placement currently sits at over 1000 people?

What are individuals with disabilities and their families to do when they want nothing more than to live in the community but simply can't move out of their family home, Emerald Hall or an institution because the Dept of Community Services won't provide the funding for the type of support the person
requires to be successful in the community?

Could there be anything the public could possibly do to help?

Oh, wait. I know. One really helpful move would be to bash an individual's family members for the continuation of institutions in Nova Scotia.
I have yet to meet anyone in the disability community who wants to see their family member housed in an institution. Have you?

* You might have noticed that the sarcasm was a bit thick in this post. That's something I generally work very hard to avoid, but sometimes a person simply has to use whatever tools are at their disposal to make people see that a spade really is a spade.

**
 Part III will, as promised, will examine take a look at the alternative being presented to guardianship at the moment - supported decision-making.

Wednesday, January 6, 2016

A New Day

Some might recall me occasionally mentioning that the reason A Primer on Special Needs and the Law has never had a blog roll is because I have never come across any Canadian legal blogs that I
felt would be relevant to my readers.

Well, today that changes. May I introduce:

Mr. J.P. Boyd and his blawg, 


Mr. Boyd presently serves as the executive director of the Canadian Research Institute for Law and the Family, prior to which he practiced family law in Vancouver, British Columbia as a litigator, mediator, arbitrator and parenting coordinator.

To quote Mr. Boyd, "The information provided in this blog relates to the laws and dispute resolution processes of Canada."

Although not directed to legal issues faced by persons with disabilities, per se, the blawg appears to have a nice mix of material oriented to helping self-represented litigants and information on initiatives underway across the country to increase access to justice.

* For anyone wondering, no, I have not forgotten my promise to continue our discussion in the "Let's Talk Landon Webb Guardianship" posts. All things come to those that wait.

Wednesday, December 16, 2015

Let's Talk Landon Webb Guardianship ~ Part I

Oh, the irony.

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 nearly every other province in Canada does a better job than Nova Scotia with their guardianship legislation.

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.

Monday, November 30, 2015

Petition to Implement a National Assistance Program for Canadians with Disabilities

I don't recall ever asking my readers to sign a petition and, if I have, it would be very rare indeed. But there is a very important Petition directed to our Federal government up at Change.Org and I
would ask you to please check it out and sign it.

It's well part time that Canada met its moral and legal obligations to provide all of its citizens with disabilities with the assistance they need to access life in the community. Mobility aids are just one small, albeit very important, type of assistance the federal and provincial governments should be helping with.

So, please, it will take you all of two minutes - sign the Petition.

Saturday, November 21, 2015

No Need to Panic ...

Just a quick note to let you know that, for many of you, there's no need to panic about the upcoming changes to the Income Tax Act concerning trusts and how they are taxed. Some of you might be aware that in 2016, the graduated taxation rate for testamentary trusts (meaning trusts created by a Will) will be replaced with a top marginal tax rate.

The bottom line relevance of this for us is that the way the world currently works is that when money is placed in a Henson Trust (aka an absolute discretionary trust), the income from that inheritance is taxed at a beginning (lower) marginal tax rate. This is a special stipulation that only applies to trusts created by a Will (testamentary trusts).

This is all about to change in 2016, however; when testamentary trusts will be taxed in the same way all other trusts are - meaning that they will be taxed at the top marginal tax rate. When you think about the inheritance you are leaving a challenged family member, you really don't want to see that eaten away by the trust being taxed at the highest taxation rate. After all, who needs that money more - the federal government or your family member?

But the reason I say that there is no need for most of us to panic is that the government has included a special exemption which states that if the beneficiary of the trust (your challenged family member, for example) qualifies for the Disability Tax Credit ("DTC"), the trust can be approved as a Qualifying Disability Trust and, as such, will continue to be taxed at beginning marginal rates, just as it is now.

There are a few more catches, of course, such as, for example, the fact that an individual can only have one Qualifying Disability Trust, which could result in some unexpected consequences if, for example, more than one family member leaves the person an inheritance in their Will. Please, always remember to check with your accountant or tax adviser, for information specific to your particular situation.

Moving past that, regular readers will recall that I have preached before as to the importance of the DTC,as that not only does it provide a nice tax break for the individual or their family, but the DTC is the very same tax credit that allows an individual to qualify for a RDSP. The math there is pretty simple ...

No DTC = No RDSP

Going back to the rules around the taxation of trust, it's important to realize, that the mere fact that your child (or other family member) qualifies for assistance through the Province's Services for Persons with Disabilities Disability Supports Program does not mean they automatically qualify for the DTC - and, even if they do qualify, it's highly unlikely that any government official is going to come along and suggest you apply for it.

In order to qualify for the DTC, the federal government must find that the person is "markedly restricted" in the activities of daily living. The wording of this requirement seems to be continually evolving, but trust me when I say that it is always worth the effort (and re-effort, should you be turned down) for a person to apply (and appeal and/or reapply, as necessary) for the DTC, as it has the potential to open many doors, as we've just seen with these new changes to the taxation of trust.

So what are you waiting for?

Monday, October 19, 2015

CanuckKabuk Law

As I've noted before, although all kinds of links to all kinds of interesting information be found in the  sidebar, I have never had an official  blogroll at A Primer on Special Needs and the Law - the main reason being that there are very few Canadian legal-disability blogs out there, or at least very few that I'm aware of.

But today I came across "Kabuk Law" (no, I have absolutely no clue where that name came from although I can tell you that they bill themselves as "the first interactive platform for seeking legal advice in North America, enabling consumers to source desired providers and book appointments online" and there is an interesting little story behind how the site came to be) that appears worthy of sharing.

This is the link to their blog, where some interesting articles in their own right can be found. This will take you to their main page.

So what's it all about, you ask?

Basically it's a CANADIAN site that attempts to connect the public (meaning people like you. And you. And yes, you too) with lawyers. Pardon my excitement, but finding truly Canadian sites like this is indeed rare.

So check them out. Even if you're not in need of legal services at the moment, it's never hurts to be a Boy Girl Scout and be prepared. Check out their blog, too; as I said, there looks to be some very interesting stuff there, including a link to a survey asking people about their experiences looking for legal advice or (gasp) even an actual lawyer.

It would appear that they actually want to make getting legal advice easier, right here in Canada. Who would have thunk it, eh?

Sunday, October 18, 2015

Disabling Poverty, Enabling Citizenship – Canada's Federal Parties Have Their Say

We all know we should need to vote, but sometimes we wonder why we bother. And yet if the democratic process can be this frustrating to typical Canadians, it is often all the more so when it comes to individuals with disabilities and their family members, particularly since it so often seems that most of the issues that more important to us are not even on any government radar.

Operating on the theory that knowledge is power, I am passing along a Media Release from the Canadian Council on Disabilities that came to my attention today. I realize it's getting a little close to the line to question your Parliamentary Hopefuls, but if you want to know where the different political parties stand on issues of particular relevance to the disability community, read on.
The Council of Canadians with Disabilities (CCD) a national organization working for an inclusive and accessible Canada, sought commitments from Canada's major political parties on initiatives focused on disabling poverty and enabling citizenship.
  • Poverty alleviation (CCD identified a refundable Disability Tax Credit as a first step) and increased employment opportunities; 
  • Convention on the Rights of Persons with Disabilities and ratification of its Optional Protocol, and;
  •  Accessibility measures (such as a Canadians with Disabilities Act, enforceable access regulations for transportation and other areas in Federal jurisdiction, improved palliative care and other services, support for capacity building for the
    disability community)


Wednesday, September 16, 2015

Legal News - Short But Sweet

For some reason, a phrase my Mom used to use, "a lick and a promise", seems to come to mind a lot lately. I am particularly fond of it when it comes to dusting, which truly seems to be a *chore* for me.

At any rate, today I give you the legal equivalent of a lick and a promise.

Although touted for family law litigants, this new workbook [the link will also be added to the sidebar under the "Helpful Links In General" heading] now available for self-represented parties in the Province looks like it might well prove at least somewhat useful  for all self-represented litigants, no matter the legal issue.

On another positive note, a free legal clinic is being launched this week at the Halifax Law Courts.
Beginning on September 17, people who want to resolve their legal problems in court will have access to free legal advice and information at the Halifax Law Courts (Upper Water Street). The “Free Legal Clinic” will open its doors.

One morning each week, self-represented litigants will have an opportunity to meet with a volunteer lawyer and a volunteer law student in private. During the 60-minute sessions, they will offer litigants basic advice and guidance to help them through their anticipated court appearances in the Supreme Court or the Court of Appeal.

The Clinic is not “needs-based”, meaning that a person’s income has nothing to do with whether or not they qualify for the free service.

The sessions will be held by appointment only. The advice and information offered is limited to civil law cases before the Supreme Court and Court of Appeal and to family law cases (except child protection matters) before the Court of Appeal. ...

[Click on the link to learn more, as they say.]
All in all, a good step forward, I should think.
Let's hope it's a sign of more good things to come.

*Until we meet again, mes amis.*

Monday, August 3, 2015

How Do You Know When You're on the Right Track?

"We all have a destiny, a dharma to fulfill, and there are endless opportunities, people and circumstances that surface throughout  lives to illuminate our paths."
~ Dr. Wayne W. Dyer
First, I have a confession to make - I love quotes. I collect them in fact. That's right, 56 pages of quotes in a Word document. But enough about that, I want to talk about this particular quote.

I would like to believe those words above are true, you see. It's not that I believe in fate to the exclusion of free will; no, not at all. I see it much more like opportunities opening up in your life, windows if you will. Little windows of destiny, perhaps, as you make your way through your life.



Always a choice.

Even though my father had been in a wheelchair from the time I was born and I had two severely challenged older sisters (who had been institutionalized before I was born); even though during my last year of Law School, I was diagnosed with a chronic medical condition ... despite all that, before my oldest daughter was born, I had always naively thought that persons with disabilities were taken care of. The whole social contract thing at work and all that; society doing it's part to help those who were not as capable of helping themselves.

My perfect little baby girl was 13 months old when she had her first seizure. The first of many, many, many seizures - I gave up counting after a while. As if these clusters of up to 100 seizures over the course of a week was not bad enough, we discovered that after each bout of seizures, she had regressed, lost some of the skills she had previously developed.

In fact, after her second bout of seizures, which occurred when she was 19 months, she lost all her words except for mama and baby, could no longer climb stairs and had "forgotten" how to play with her toys. She was still interested in her toys; it was just that she no longer knew what to do with them. For every toy that she picked up, you had to take it gently from her and show her how to use it, what it did. After you did this a few times with the same toy, it seemed to start to come back to her.

Although I had no clue at the time and despite my own childhood and family experiences, that was my first real introduction to the world of disability. That was the beginning of a journey that I know so many of you have taken. We each may have traveled our own paths, but our experiences are so similar in so many ways.

It's funny, though, I never really picked up and focused on my daughter's developmental delay until she was around 4 years old. I was at a support group (probably one of the last occasions where I sat through a meeting just listening, taking it all in without much to say) for parents whose children had epilepsy and my child was the youngest in the group; all the other children were in school. The discussion that night turned, of course, to school and the challenges these children and their families faced in that system. Up until that point, there had been so much of focus on the medical side of stopping my daughter's seizures that our family hadn't really paid much attention to her challenges. This is hard to explain - she was taking speech therapy and in early intervention at the time. so obviously we recognized these issues but ... they simply had never been the focus. The seizures were the problem, we believed. Stop the seizures and all will be well.

Well, the rest, as they say, is history.

Tuesday, July 21, 2015

Nova Scotia's First Family Demonstration Project

I'm not sure why I have put off posting about this for so long. It definitely wasn't intentional - perhaps just a by-product of how busy my life seems to have become between going back to practice and what I am about to share.

Show of hands, please ... how many of you remember the NDP government's Roadmap for transforming Nova Scotia's Services for Persons with Disabilities Program (as it was then known)? Sure you do, remember the election campaign when all three parties endorsed the Roadmap and promised to implement it?

Now before you say anything, I must admit that I, too, was very cynical had my doubts - after all, how many times have the names of the Programs been changed? And how many times has government commissioned reports, conducted studies and, above all else, promised to change things ... all with no real or meaningful results?

So it was with great surprise (and maybe a little trepidation) that two other families and mine accepted the Department's offer last summer to turn our Transition House Project* into one of the long-awaited pilot projects for the Roadmap.

It took almost nine months to get here but I am pleased to say that my oldest daughter is one of the participants in the Province's first Family Demonstration Projects.

She has two roommates - not individuals imposed upon her (or she upon them), but two young adults that that she has grown up with and who share similar interests. Two good friends.

I must say that they have a VERY nice home. Trust me when I tell you that most of us would have killed to have our very first place out on own as nice as theirs.

But most important of all, our young adult children have the funding required to engage the support people ("house buddies" as we call them) needed so they can successfully live in their own home in the community.

Let's be clear here. This is most definitely not just enough group or small options home in disguise - we, the families (in our particular situation) decide what is needed to ensure that this will be successful for our young adult children. We, the families, are calling the shots - not the government or some residential service provider.

However, as usual, the devil is always in the details. In that vein I have some bad news and some good news for you.

The bad news is that the process, itself, of getting from the idea dream to reality was long and more than a little painful, for both sides. The good news is now that two different groups of families have successfully negotiated with the government and have committed to being in the Family Demonstration Project and one group is successfully up and running, the process for you and your family should be much, much smoother.

What's this all mean, you ask?

To put it simply ... here it is. The time has finally come. What is your dream for the ideal living situation for yourself or your family member? The time is here, people. It can and is, in fact, being done.

Full disclosure - it's a lot of work for the families to take on, there is no denying that. The Department tells us that Third Party Administrator Funding** (meaning that a third party would actually be responsible for handling the all the day-to-day tasks in making sure the financial end of things runs smoothly) won't be available for another two or three years. That leaves us, the families, to take on all aspects of managing and administrating the home, at least for the time being.

But trust me when I say that this is huge - huge for my daughter, for her roommates and for my and their families. But, most important of all, this has the potential to be huge for all persons with intellectual disabilities and their families in this Province.

Break out the band. Pop the champagne corks. We already have.

* Most definitely a story for another day.

** The Roadmap calls for participants or their families (as the case may be) to have the option of either managing the funding themselves or having a third party (I believe the plan is to redefine the roles of the current residential service providers to include acting as Third Party Funding Administrators) manage the funding. [See pp. iv, 23, 25 and 44 at the link.]

Tuesday, June 30, 2015

Guardianhip - A Middle Ground

I am pleased to say that one of the things returning to the practice of law has done is open up a lot more options for how I can be of benefit to the disability community. There is one particular option in this regard that I would like to highlight today.

If you've been reading this blawg for very long, then you are no doubt quite familiar with the Nova Scotia Legal Guardianship Kit.

The great thing about the Kit is that it gives families who have decided that guardianship is the best choice for their loved one the opportunity to obtain that peace of mind without incurring the high costs traditionally involved with retaining a lawyer. And it gives me a very good feeling to know that that option has been opened up to families for whom finances might otherwise be a barrier.

However, I realize that many continue to struggle with taking that plunge into the legal world, with taking on the commitment of preparing their own documents and appearing in court on their own without the services of a lawyer. I am happy to say that there is now another option I can offer for families in such a position.

In addition to the "either/or" options of retaining a lawyer or bringing a guardianship application on your own, I can now offer you a third option. In fact, some families have already successfully taken advantage of this third option. It combines the very best of the previous options in that allows you to save a significant amount of money while still having the services of a lawyer in reserve, so to speak, to use only as and if you need them.

What I am talking about is purchasing the NS Legal Guardianship Kit, doing the costly time and labour-intensive work of preparing the documents yourself (with the assistance of the Kit) and then hiring me on what we call a "limited scope representation", meaning using (and paying for) my services only if and when you feel you need them.

For some families that has meant preparing the documents themselves, but then having me review them before they are filed so they can walk into court confident that they have provided all the information the court requires to understand why guardianship is in the best interests of their family member.

For others, it might mean having me appear in court upon their behalf after they have completed the required paperwork.

And then there are those that fear that they might run into a few questions or concerns along the way as they are preparing the documents and need someone to run such potential issues by.



The beauty of this option is that the possibilities of just how much legal assistance (and in what areas and combinations) a family might require to complement the NS Legal Guardianship Kit are practically endless. It truly is individualized service, individualized to the particular needs of your family.

Perhaps it's time to coin a new acronym. ILS - Individualized Legal Services.

Tuesday, June 9, 2015

To Disclose or Not Disclose - Human Rights in the Workplace

I recently listened to an audiotape of a panel presentation entitled "Learning to Accommodate: A Step-By-Step Guide to Accommodating Employees with Learning and Intellectual Disabilities".

All in all, it was good and useful presentation - the Panel consisted of a former member of the CACL, a psychologist who specialized in learning disabilities, a law professor who specialized in labour and human rights issues and two lawyers - one who worked mostly for employers and one whom brought forward court cases on behalf of employees.

They did their best to represent all sides of the issue ... or should I say issues, given that it dealt with both employees with intellectual challenges and those with learning disabilities, two very different situations.

I have posted a couple of times on the issue of human rights in the workplace back in 2008 - 2009, but we haven't looked at the issue since. Before we go on, you might want to go back and read those old posts, just to give you a sense of how the human rights issue are dealt with in an employment context.

The one thing that struck me about this recent prensentation and that I wanted to share with you is the issue of whether an employee is obligated to disclose their disability to an employer, either in the hiring process or as a hired employee. I don't believe I touched on this issue back in 2008-2009 and that's too bad because it really is a very important dilemna that many employees and job-seekers face.

As we discussed previously, pursuant to both the Nova Scotia Human Rights Act and the Canadian Human Rights Act, employers are obligated to "accommodate" an employee with a disability. You can read more of exactly what this duty of accommodation requires an employer to do (and not to) here.* But the question for us today is this: How can an employer be expected to accommodate an employee if it is kept in the dark as to the employee's disabilities?

Sure, some disabilities are obvious to the naked eye but many are invisible. And even in those situations where the disability (and accommodations required) are obvious, can we automatically assume that means that all of the employee's needs will always be completely obvious?

In the situation in this video, the employer's discriminaiton is pretty blatant. The woman is in a wheelchair. The drafting table and the material on the shelves are too high for her to reach. It isn't rocket science (or, at least, it shouldn't be). But what if a physically challenged employee is also dealing with other issues that are not so obvious, such as fatigue or depression that effect their employment needs?

The bottom line is this: How can an employer legitimately be expected (and legally required) to accommodate disabilities of which it is unaware?

An employer has a has a duty to investigate the availability of accommodation options only IF it knows or should know of the person's disability and the need for accommodation. If the employer is legitimately unaware of the disability, there simply is no duty to accommodate, although one might arise later IF the disability comes to the employer's attention.

The case law is replete with instances of failed human rights claims where the employer never disclosed any information that would lead the employer to think they had a disability; often, even in cases, where the employer noted difficulties and went out of its way to enquire what it could do or offer the employee to help them meet the demands of the job.

And, really, can we honestly say that it should be any other way? You simply can't be expected (or obligated) to accommodate a disability you are totally unaware of. That is only fair.

I do realize that for many individuals with disabilities the decision as to whether or not to disclose a disability (and the accommodations required) to an employer or potential employer is a very difficult one. There are many factors to consider.