"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

Monday, December 28, 2009

The Need to Reform the Law of Guardianship

Many have a problem with the whole concept of guardianship. It's too intrusive. It doesn't recognize the rights of the disabled person to make choices in their own lives. It's expensive, complicated and takes a long time.

In fact, over a decade ago, the Nova Scotia Law Reform Commission advocated for dramatic change to this Proince's gaurdianship law, 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
And to a large extent, I agree with these concerns.

As we discussed previously, the assessment of "competency" under our law is also an all-or-nothing evaluation. People are labelled as "competent" or "incompetent", without recognizing that people may be "competent" in some decision-making areas and not in others. As well, people may be "incompetent" only some of the time. There are, of course, some examples of people who are totally unable to decide, such as a person in a permanent coma, but this is quite rare and most decision-making limitations are partial.

In view of the principles of autonomy, respect and equality, this all-or-nothing approach leaves a lot to be desired. And it's important to realize that not all provinces have taken the all-or-nothing approach to guardianship that Nova Scotia has.

Under the Canadian Charter of Rights and Freedoms, all adults have "the right to life, liberty and security of the person". The appointment of a guardian results in the loss of our fundamental rights and freedoms, particularly the right to liberty. This means that the Charter gives people the right to the least restrictive alternative when there may be a denial of their freedoms, such as when a guardianship application occurs.

The Charter requires some basic procedural safeguards which should 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.
It's important to recognize that although many of these safeguards are currently available under the Incompetent Persons Act, it is often extremely difficult for a person subject to a guardianship application to make use of them for a number of reasons such as lack of knowledge about the legal system, a lack of support and assistance, as well as an inadequacy of financial assistance to hire a lawyer.

Also, adults should have the right to "procedural fairness" before having a guardian appointed. The inadequacy of procedural safeguards can be an area of concern with the way in which the Incompetent Persons Act is applied.

An adult may have difficulty opposing a guardianship application, because the proceedings are often seem as complex, intimidating and expensive (although I question whether this perception is always accurate, but more on that in another post).

Hearings themselves may also be lacking in terms of procedural fairness. The adult is usually not present or represented by a lawyer. Medical evidence is often accepted without question, and medical practitioners are also absent from court.

Once a guardian has been appointed, the adult will have difficulty challenging the order by way of appeal or by seeking to revoke the guardianship order. Where 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 later post, we will look both at some of the other options available to guardianship that aren't currently available in Nova Scotia as well as what the Law Reform Commission, itself, proposed for a new Adult Guardianship Act in 1995.

We will also tackle that concern of just how expensive, complex and time-consuming a guardianship action is.


Kathleen said...

Time to state my opinion on Guardianship: We got legal guardianship of our severely developmentally delayed son in late November. I had decided to be my own lawyer, which meant learning about all the paper work, making sure it was all filled out properly, and going to court. The court appearance was almost anti-climactic - the judge had been given all the paper work a week prior, so he called us up first, smiled, said, everything looks fine to me, I'll write you up the guardianship order and you can pick it up this afternoon. Wow! It cost us the court charges which was about $135 and my time.
So, you might wonder why we chose this route. First,this way, there is no ambivalence about who his guardian is. Disagreements may arise around medical procedures; when and if he ever goes into a "group home" we will still have some input into his life; if we want to get him a passport; dealing with Revenue Canada; etc. But most importantly, as he does not understand implications of his actions, or anything to do with legal, financial, or other issues, we his parents, who know him better than anyone, figure that we are in the best position to make decisions on his behalf as we have his best interests at heart. Would you have confidence in whoever the government of the day is making decisions about your adult child if they can not make the decisions themselves? Why not seek guardianship?

Margaret said...

I need to learn about the paperwork and would appreciate any guidance you could provide Kathleen.Thanks