"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

Thursday, February 25, 2010

Upcoming Upcomings

Lots of interesting things going on in these parts lately - just check out the heading "Places To Be - Upcoming Events" in the sidebar to the left.

But I thought I would highlight just a few.

One event I wish I could make but unfortunately can't is the Estate Planning for Adult Children with Disabilities session [sponsored by Support Services Group Co Operative Limited (SSG) and Halifax Association for Community Living] on Saturday, February 27th from 10:00 to 12:00 at the Seacoast Towers, 22-24 Dundas Street, Dartmouth NS.

George Clarke, a lawyer from Boyne Clarke, will present planning strategies to assist parents in leaving a legacy to adult children with a disability, without endangering public funding or programming. Guardianship and information on how to protect savings and guaranteed investments vs. non– guaranteed investments, as it relates to savings for your family and your dependent child will also be discussed. Insight will be shared on the types of investments that work well in trust funds. RSVP to James Baltus at 466-0230 or Jean Coleman at 463-4752 by February 25th. (Yeah, that's today).

It being tax season and all, the Disability Tax Credit is once again a hot topic. On Sunday, February, 28th, Megan Leslie, MP for Halifax will be hosting a Disability Tax Credit Presentation from 2:00 pm to 3:30 pm at Northwood Care Inc, Stadacona Room, 2615 Northwood Terrace, Halifax.

The Halifax Association for Community Living (a group which, if you're not familiar with them, you really should check it out) will be offering a Lunch 'n Learn session on the history and work of the organization on March 5, 2010.

There are not one but two Learning Disability Conferences in the near future.

The Annapolis Valley Regional School Board Learning Disabilities Conference Day (entitled "Unleashing the Potential of the Teenage Brain") is Saturday, March 27th at the Kentville Firehall. The registration deadline is March 12th. For more information or to register contact Gail Demmings AVRSB 538-4638 or email gail.demmings@avrsb.ednet.net.ca

The 2010 Nova Scotia Learning Disabilities Conference will be held on May 13th & 14th at the World Trade & Convention Centre in Halifax. Visit the LDNS website for more information and to preview this year’s list of speakers. Register by March 1, 2010 and you will be entered to win a day at the spa!

And last, but certainly not least, might I remind you that the NDP Consultations are continuing around the Province. This is your opportunity to voice your opinion as to how the government needs to support people with intellectual disabilities. You can visit the government website for directions on making your voices heard. But before you do, you might want to check out the responses from the Nova Scotia Association for Community Living regarding the 4 questions asked by Graham Steele, Finance Minister.

There you go ... don't say I never told ya!

Sunday, February 7, 2010

Practical Applications - The Irony of the Personal Directives Act

Facing significant potential problems with the use of a Power of Attorney for many individuals with disabilities, we now turn to the Nova Scotia's new Personal Directives Act, which we initially discussed here.

Might it be useful for our community?

Unfortunately, I'm afraid not.

The first major problem that needs to be pointed out is that the legislation is not yet proclaimed in force. Meaning that, from a legal point of view, it doesn't actually exist. A giant legal tease if you will - it's here. But it isn't. Now you see it. Now you don't.

And no, I have no inside knowledge as to when (or even if) it will be proclaimed. Perhaps something to contact your MLA about should you feel the need to put an end to the shenanigans.

Putting aside that little inconvenience, the question remains - is a "personal directive" a possibility that could be used to avoid guardianship?

The as-yet-unproclaimed legislation would allow a "person with capacity" to make a personal directive setting out instructions or an expression of their values, beliefs and wishes about future personal-care decisions to be made on their behalf and authorizing one or more persons to "act as delegate" to make decisions concerning their personal care on their behalf.

"Personal care” is defined as including, but not being limited to, "health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services and any other personal matter that is prescribed by the regulations". Those would be the regulations which are not yet in existence. Seeing as how the legislation itself remains in some sort of legal purgatory.

Putting that litle issue aside (yet again), I'm afraid I'm to be the bearer of two more pieces of bad news.

First, although the Personal Directive Act allows for combining a personal directive with an enduring power of attorney in a single document [sec. 23], a personal directive does not and cannot apply to financial issues. The situation remains that the only way to nominate a person to act on another's behalf in regard to financial matters in Nova Scotia (outside of guardianship) is through the use of a Power of Attorney.

The second difficulty, at least indirectly, involves the level of competency required in order for a person to execute a valid personal directive.

For the purposes of the Personal Directives Act, "capacity" is defined as "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision". [sec. 2(a)]

Turning our attention to our previous discussion on capacity in the context of Powers of Attorney, you might recall this statement:
Capacity and incapacity (and competency and incompetency) are legal concepts. And they are task specific. For example, the minimum level of competency required for a person to execute a valid Will (which we call testamentary capacity) is lower than that required for many other legal acts. In the context of making a Will, what is essential is whether the person has the ability to understand the information relevant to making the pertinent decision and the ability to appreciate the reasonably foreseeable consequences of that decision (or lack of decision).
So although I hesitate to commit to an opinion on this issue at the moment, it certainly would appear, based on the wording of the legislation, that the standard of competency required to execute a personal directive is very similar to that required in order to execute a valid Will.

And given that at least a segment of the population with intellectual challenges who would not have the higher level of competency required to enter into a contract, for example, could likely still execute a valid Will, the legislation would appear to provide an avenue for those individuals to nominate a person to make personal care decisions for them.

Good news, says you.

Maybe, says I.

There's just for one little problem. Caused by sections 9 and 12 of the Act.
9 A personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.

12 (1) A personal directive has no effect (a) in respect of a personal-care decision, whenever the maker has capacity; (b) on the maker's death; (c) when the personal directive is revoked by a maker who has capacity and makes the revocation in writing, executed in the same way as the personal directive; or (d) on a determination by the court that the personal directive ceases to have effect.
We now find that our although our hypothetically challenged person may have the capacity to execute a valid personal directive (if they have "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision"), their personal directive will only go into effect when they lack the capacity to make a personal care decision. And, just to put a cherry on it, their personal directive will have no effect whenever they have such capacity. Which capacity, we've already ascertained, they must clearly have had in order to execute a personal directive in the first place.

Leaving us, I would suggest, with a perfectly valid personal directive which will, unfortunately, remain useless (despite its validity) unless and until the maker becomes (even) more incapacitated.

Oh, the irony.

It kind of reminds me of having a Personal Directives Act (which, I must say, will be a very useful and much-needed piece of legislation for very many individuals) that isn't. For the moment, anyway.