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Tuesday, December 11, 2018

Legal Representation in Nova Scotia: A Treatise [Part i

We ended last year by taking a look at the history of adult guardianship in Nova Scotia and a very quick overview of the new legislation. You will recall that in October of 2017, I also gave an interview to CBC as to my thoughts on the (then) proposed legislation. We will now take a closer look at the Adult Capacity and Decision-Making Act, its requirements and what it all means for families.

By the end of this month, I will have (hopefully successfully) completed my first application for legal representation under the Adult Capacity and Decision-Making Act. And I must tell you that the paperwork required is definitely more complex  then before.

As many of you know my plan was is to modify the Nova Scotia Legal Guardianship Kit so that it complies with the new legislation in order to ensure families continue to have access to a cost-effective way to apply for guardianship representation.

If, by chance, you feel that you picked up on some ambiguity in that last sentence, you are correct.

First, a confession of sorts. I have learned three things over the past year:
  • it will take more than a few (or even several) tweaks to turn the Nova Scotia Legal Guardianship Kit into the Nova Scotia Adult Representation Kit
  • a completely new self-help Kit is required to comply with the new legislation; and
  • I honestly don't know how long  it will take to create and test-drive (or if it is even possible to create, for that matter) a new useful Kit.
Although it pains me to say this, I remain committed to helping families approach the legal representation process without incurring the cost of a lawyer if at all possible (or, at the very least, in a way that costs can be minimized).

But let's put that issue aside for now and look at some of the changes made to the process of obtaining guardianship representation in Nova Scotia.

As an aside, just in case you were wondering, a treatise 
is defined as:
a systematic exposition or argument in writing including a methodical discussion of the facts and principles involved and conclusions reached
Shall we begin?

There are now three additional documents to be filed with the court.

I.  Capacity Assessment
Under the Incompetent Persons Act, in order to successfully apply for guardianship of an adult, among other things, affidavits were required from two medical doctors stating that
  1. the adult suffered from a "mental infirmity: and
  2. due to that infirmity, there were "unable to "manage their affairs".
Anyone planning on applying for representation without a lawyer will be happy to know that affidavits from medical doctors are no longer necessary. Those affidavits have been replaced by a Capacity Assessment, to be conducted by any of a
  • medical doctor, 
  • psychologist, 
  • nurse, 
  • nurse practitioner;
  • occupational therapist or
  •  social worker. 
At the moment, however,  the only professionals who can conduct such assessments are medical doctors and psychologists. Members of the other noted professional groups will need to undertake a training program before being considered a "qualified assessor". Unfortunately (to the best of my knowledge), the Province has not yet rolled out this new education program.

On the plus side, instead of just medical doctors, psychologists can also now be used* (which is huge considering that for many adults, a psychologist will be the professional that best understands their condition and limitations). Also, to clarify and eliminate any possible confusion up front, yet me be clear that although some other provinces (such as Ontario, for example) require two capacity assessments to be completed, in Nova Scotia only one such assessment is required.

On the not-so-plus side, however, is that it is up to the assessor to make the initial determination of whether a capacity assessment is even required as an assessor can only proceed with an assessment if he or she has "reasonable grounds to believe that the adult is incapable of making decisions in any of the areas to be assessed".** This means that the assessor potentially has the ability to take the wheels off the whole process by refusing to conduct the capacity assessment needed to determine the adult's capacity. If there appears to be a disconnect there, I agree.

Three other points:Affidavits are still required from each potential Representative.
  1. Affidavits are still required from each proposed Representative, including alternate Representatives 
  2. If, at all possible  it is best to use a psychologist or other more specialized professional as opposed to your family doctor. Although using your family doctor should be less of an issue the more obviously challenged the adult is, it could be an issue for higher-functioning adults.
  3. Please note that the court will not accept any capacity assessment that is over six months old.   
II. Representation Plan
Although the second new document, called a "Representation Plan", is pretty much a fill-in-the blank form (which means less drafting for either the self-represented litigant or the lawyer), the bad news is that the "document" consists of 17 pages and, in addition to the information you might expect, it must also include
  1. a list of decisions that the Representative reasonably expects will need to be make within one year;
  2. a list of decisions that the Representative reasonably expects will need to be made within five years;
  3. how the Representative plans to involve the adult in decision-making;
  4. if two or more Representatives are to be appointed, how decision-making will be exercised between them and how a decision will be made if the Representatives cannot agree on an issue;
  5. any clear and relevant instructions expressed by the adult while he or she had capacity (and how the Representative will ensure future decisions includes these instructions);
  6. any known wishes, values and beliefs of the adult (and how the Representative will ensure future decisions includes these instructions); and
  7. any request for compensation, including the manner of calculating the compensation.
Further, if the applicant is seeking authority over financial matters, additional information must be  included:
  1. a list of the adult's assets and liabilities, income and expenses and business interests;
  2. how the Representative will deal with the adult's assets and liabilities;
  3. any known/expected future source of income;
  4. how the Representative will deal with the adult's income and expenses and any shortfall required to meet the needs of not just the adult, but also their spouse, minor child(ren) or adult child(ren) who are unable to earn a livelihood due to physical or mental disability;
  5. whether there are any significant non-recurring expenditures;
  6. whether the adult is receiving all benefits to which they are eligible and, if not, what steps will be taken to remedy this; and
  7. the details of any payment, loan or gift the Representative intends to make from the adult's property.
III.  Vulnerable Sector Check
The third document is one that most of us have probably required at some point in our lives. Ever go along on a class trip with your child's class? Ever volunteer with an organization providing services to minors or persons with disabilities? If so, you have no doubt been required to ask the police to conduct a Vulnerable Sector Check as part of a criminal record check on yourself. However, unlike other times you may have done this, you will not have the benefit of a letter from the school or organization requesting the Check, as it will be you, personally (not any organization), requesting the check.

As the uniqueness of this type of request appears to have confused some police detachments in the Province, you will need to clearly explain that you are applying to court to be appointed a legal Representative of an adult with a disability and, as part of your application, the court requires you to file a Vulnerable Sector Check on yourself. You might even want to set this out in the form of a letter you can hand over to the police when requesting the check.

Please keep in mind that the court will not accept the results of any Vulnerable Sector Check that are more than two months old. Also, a Vulnerable Sector Check will need to be conducted on each individual applying for representation (including someone applying to be an alternate Representative - something we will discuss more in Part II. ____________________________________________________________________

* Although the Province obviously considers the other listed professionals capable of judging an adult's capacity, I would recommend steering clear of them if at all possible as, except in the clearest of cases, I question their ability to accurately conduct such an assessment.

** Somewhat ironically, the test for to determine capacity under the new legislation is the exact same test used under the much-aligned, now repealed Incompetent Persons Act, namely being
  •         able to  understand the information relevant to making the decision; and
  •         able to appreciate the reasonably foreseeable consequences of making (or not                 making) the decision.

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