"The brick walls are not there to keep us out. The brick walls are there to give us a chance to show how badly we want something. Because the brick walls are there to stop the people who don't want it badly enough."
~ Randy Pausch, professor

Sunday, December 13, 2009

'But I Still Don't Agree With Gaurdianship ...

You've read the various reasons why I might recommend you consider guardianship for your adult child with a significant mental disability. And what I've had to say about how and why other less restrictive options might be limited or inapplicable. And yet you still don't agree with guardianship (from a philosophical point of view). And not only that, but you're not so sure your adult child would legally qualify for it anyway.

Which would leave you (and them) exactly where?

It's true. The effect of an order made under the Incompetent Persons Act does severely restrict the rights of the person who is the subject of the order. Most guardianship orders restrict the following rights:
  • the right to deal with her or his property;
  • the right to vote in an election;
  • the right to be a juror;
  • the right to consent to or refuse medical treatment;
  • the right to start a civil action or to defend one; and
  • the right to marry or divorce.
Legally, it is, indeed, an all-or-nothing approach.

Unfortunately, the Act does not allow for the separate appointment of a guardian of the person and a guardian of the estate. And there are usually no limits to the guardianship order so that most guardians have full powers to make most, if not all, decisions for the adult.


Other than enduring powers of attorney (POA) and personal care directives (with their many limitations, not the least of which is the issue of the capacity to enter into one), what other options are there in Nova Scotia?

Sure, British Columbia has legislation allowing everyone (even if they can't manage their own affairs) 19 years of age and over to make a document called a "Representation Agreement", which permits a person to create a legal Plan giving authority to someone else when a person needs assistance managing their affairs. Which can cover financial and legal matters AND health and personal care matters. But there's nothing comparable in Nova Scotia.

And although I most wholeheartedly agree that the law of guardianship needs reforming in Nova Scotia (and will post more on that very topic later), the bottom line is that at the moment it's all we have in Nova Scotia.

And consider this, after you hold a POA and a personal care directive in your hands, haven't you effectively taken away just as much power and rights from your adult child as if by guardianship?

But no, you respond. I don't have to exercise all those rights all of the time. I can let him do what he is able and only step in where necessary.

Indeed. Same as with guardianship.

Because from a practical point of view, nobody is going to know that a person has a guardian unless they are explicitly told. Meaning that if your son or daughter walks into a polling station with their voter registration card that came in the mail, is anybody really going to know that they have a guardian? And that that means they cannot vote? Or are they just going to smile, direct them to the proper booth and explain how to fill in, fold and return the card?

Under the Nova Scotia Civil Procedure Rules, a person "who is not capable of managing their affairs", must start, defend, contest and respond to a civil proceeding by either a named litigation guardian or a guardian under the Guardianship Act (which applies to children) or the Incompetent Persons Act. So I can't see how having a guardian appointed really takes away too many rights there.

Since marriage is considered a civil contract a person for whom a guardian has been appointed cannot marry since they will not be considered capable of entering into a contact. Although that would be equally true of everyone considered legally incompetent, whether or not a guardian has been appointed.

However, when you consider the fact that every province in Canada, including Nova Scotia, allows for teenage marriage, provided there is parental, guardian or court consent, I have to question why a person who has a guardian appointed could not marry as long as they had their guardian's or the court's consent. And if you have been allowed to marry then ... yeah, you're going to be allowed to get divorced.

And when it comes to medical treatment, if you're the guardian then doesn't that mean that if you consider it appropriate you can allow the person make their own decision about whether or not to accept a particular medical treatment?

I'm just saying ...

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