"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

Tuesday, January 12, 2010

Guardianship Precedents ... A Work in Progress

Kathleen, in comments, notes that she was granted legal guardianship of her 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.
For some time now, I have been mulling over the idea of creating some sort of guardianship kit for parents of adult children with disabilities. My thinking being that it would be much like those Legal Will kits that you hear advertised on the TV and radio.

With that idea in mind (and Kathleen and her husband as willing 'guinea pigs', so to speak), we have proven that it can, indeed, be done. Not for $5,000 or $6,000 in legal fees and not as a long and complicated process (as so many claim) but as a relatively parent-friendly experience. Sure, Kathleen had a little help from her friends, but don't we all need that?

I have previously set out (and now updated) the process to be followed and the documents required for a guardianship application, the one change that has occurred since that post first being written is that Nova Scotia's new Civil Procedure Rules require only one court appearance (as opposed to the previous two appearances). Which should also make it significantly more parent-friendly.

So now that I've proven to myself that it can be done (with a bit of one-on-one coaching), it's time to get down to work on a package of precedent documents.

And although the project may take a while to complete, life being what it is (and I have yet to decide in what format and in what manner such a package will be made available ), rest assured, it most definitely is on my to-do list.

If I can find a way to make it workable, I will.

7 comments:

Jean Coleman said...

This blog information should be exciting to many families who have been contemplating guardianship for their son or daughter but felt that it was so expensive that they couldn't afford to apply.

Guardianship is not necessary for everyone but for those who are interested at least now they may feel that is doable.

Margaret said...
This comment has been removed by the author.
Margaret said...

I wish this kit was in existence.I met with a lawyer yesterday in order to obtain guidance.I will be representing myself.I believe that the law surrounding guardianship for for an family/individual with special needs requires change.Change to become more family friendly and to serve the needs of all individuals involved in a respectful less invasive manner.

tina said...

給你一個鼓勵 ..................................................

MMC said...

I agree, Margaret. But you have to realize how arcane this law really is; it's only in the last few years that the Incompetent Persons Act was changed to remove references to lunatic and insane persons.

It's a slow process but it appears that other provinces have done a better job. I plan to look at some of those options that can be found elsewhere in another post.

For now, I agree, we need to put pressure on our politicians to change the law in this regard. The Law Reform Commission did a paper years ago recommending many changes and I'm not sure that their paper even went far enough. And yet, it was shelved and ignored like so many reports are.

In the meantime, we do the best we can. My best, at the moment, being doing what I can to help other families facing this issue. But my point in this post was that lawyers are telling parents it's an expensive, complex, lengthy and time-consuming process. And I am sure that in some cases it is. But I'm equally sure that in many cases it doesn't have to be.

MMC said...

Margaret
Sorry, I just picked up on the fact that you plan to represent yourself. Feel free to drop me an email, if you like.

Margaret said...

Yes I will be..
I have been doing some research in regard to the NS Personal Directives Act.Interested in what your thoughts are.