"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, August 9, 2016

Let's Talk Landon Webb Guardianship, Part V

You might recall a post from back in February of this year, where I questioned whether or not that was a good time for a family to pursue legal guardianship, given what was on the horizon with the Landon Webb case. I know many of you are now well aware as to exactly how Landon's case ended.

For several years, in the presentations I have given around the Province, I have repeatedly called for a reform of the Incompetent Persons Act, noting that it is an "all or nothing, one size most definitely does not fit all" sort of deal. Apparently the court agreed.
[22] The Incompetent Persons Act takes an all or nothing approach. It allows for no nuance. It does not allow a court to tailor a guardianship order so that a person subject to that order can retain the ability to make decisions in respect of those areas in which they are capable.
Just to be clear, there were absolutely no surprises here with respect to the court's finding that the legislation, as written, is unconstitutional. Not only did Landon's parents acknowledge and agree that the Act was unconstitutional, but, from almost the beginning of this court challenge, the Department of Justice had taken the position that it would not oppose the constitutional challenge and was committed to reviewing the current Act with a view to improving it. As noted in the Webb decision, that was a "remarkable thing", as governments rarely concede that legislation is unconstitutional. In the words of the court, "It happens only where there is a clear and compelling case, such as this".

Leaving us with the question ... What now?

First, let's take a look at what did not happen; what the decision in the Webb case does not mean. To put it simply, all current guardianship orders under the Incompetent Persons Act remain valid and the decision regarding the constitutionality of the Incompetent Persons Act will not affect my current Guardianship Orders.

Now that we know what didn't happen, let's take a look at what did.

Yes, Landon successfully challenged the constitutionality of the Incompetent Persons Act. To put it simply, on June 28, 2016 (as expected) the court found certain provisions of the legislation unconstitutional, but granted one year for the Act to be updated.As noted above, all orders remain valid during this period.

The government tells us that it is currently researching and consulting, with a view to crafting a new law on substituted decision making. Which shouldn't be too difficult to do, considering the help they previously ignored were given. In fact, you might recall that the Law Reform Commission was kind enough to draft an entirely new piece of legislation for the government in 1995.

Be that as it may,this means that applications can still be brought under the current legislation until either a new law is brought in or the one-year time period has expired (which would be June 27, 2017).In addition, the process of review that always existed under the Incompetent Persons Act (contrary to what some would have you think) is still available.

Now for the really important part for your family:

You might recall that, at one point, I was suggesting that (depending on the circumstances) some families may want to hold off on applying for guardianship until either the new legislation materialized or the status quo was confirmed. However, now that a decision has been rendered in Landon's case and given that we do not know exactly what hoops a person might have to jump through under the new legislation,  families might want to consider proceeding with a guardianship application sooner rather than later, in an attempt to have the application heard prior to the Spring of 2017, when the new legislation is expected.

With respect to the Nova Scotia Legal Guardianship Kit,  you might recall my earlier  promise to, when new legislation is passed, make any necessary changes to the Guardianship Kit to comply with the new law. That, of course, remains my intent.

In the interim, whether you currently have the Nova Scotia Legal Guardianship Kit or are interested in purchasing the Guardianship Kit so as to proceed with an application before the new legislation comes into effect, please contact me after drafting all the documentation set out in the Guardianship Kit [with the exception of the final document, the Pre-Hearing Memorandum], but before any paperwork is filed with the court. I would be pleased to review your documentation and assist you with drafting the  pre-hearing memorandum so as to ensure that the issues that the court expressed concern with in the Webb decision are dealt with.

If you would grant me one aside with respect to the Webb matter (which, hopefully, will now move out of the public eye and be put to bed once and for all) and that is how Landon's parents have been treated and portrayed repeatedly by some in the media. Perhaps we should look at what the judge who heard the case (and actually had access to all the facts, facts of which most of the media was unaware and the rest chose to ignore) had to say.

In other words, perhaps, finally, the facts should speak for themselves:
His parents Darrell and Brenda Webb want what they believe is best for their adult son. They are concerned that he doesn’t have the capacity to live independently in the community. And they are worried that bad things will happen to him. They were appointed as his guardians under the Incompetent Persons Act. They could have just walked away a few years ago. They did not. Villains make for compelling stories, but there are no villains here. [para 2]
And later.
It is also a terrifying story from the perspective of Darrell and Brenda Webb. Their turbulent relationship with their son is no longer a private family matter. They have not acted out of greed or malice. They are still worried about what might happen to their son. And they have every reason to be worried. He is someone who will be vulnerable to the influences of those who do not have his best interests in mind. He is a young man who is not well equipped to face the challenges of his own life. There is a real chance that the celebration of the legal victory will fade into the background when something else happens. But risk is a price of freedom. [para 10]

Finally:
While the years Landon Webb has been subjected to a guardianship order have caused significant strife between him and his parents, Dr. Neilson suggests that those external controls may have afforded Mr. Webb some protection. Many oppositional, defiant, and impulsive young people can be highly prone to substance misuse, petty criminality, and exploitation. To some extent he has been protected from that by the efforts of his parents. “Without question, the efforts of Mr. Webb’s guardians have been well intended and genuine.” (p. 25 of Dr. Neilson’s report). [para 15] 
Parenting. Hands-down, the hardest job you will ever do.


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