Legal Guardianship - The Process [Part II]

Update: The Nova Scotia Supreme Court has recently released new Civil Procedure Rules. As their name implies, these are the procedural rules that govern lawyers' applications to the court. Of particular interest to this post is C.P.R. 71, concerning Guardianship.

I know some parents have been considering the advisability of bringing such an application on their own, without hiring a lawyer. They would be well-advised to study this Rule (as well as the other Rules it references) as it will govern their appearance in court. One nice change under the Rules is that And although I am not 100% clear on the issue, reading this Rule, I would say that it may well be that now only one court appearance is required as opposed to the two appearances formerly required, as set out below. Which might definitely makes the whole process more parent friendly.

However, that could easily be checked by contacting the Court Administration Office (sometimes called Prothonotary's office) at the Supreme Court Justice Centre located nearest to you. A self-represented litigant would also be well-advised to review this page of tips before proceeding.

In Part I, we talked about why you might want to apply for guardianship of your family member with a disability. We will now look at the process a person would go through to make such an application.

The Incompetent Persons Act requires proof of two things to have a guardian appointed; namely

• that the adult has a mental "infirmity" and


• that as a result of this "infirmity", the adult is "incapable of managing their affairs".

The procedure for appointing a guardian involves two court applications:

1. An application to the court seeking a date for the actual guardianshp hearing.
2. The actual court hearing in which the court will decide whether or not to grant a guardianship order.

First Court Application
The adult who is thought to be in need of a guardian does not needs to to notified of the first application. However this first The application will have to be supported by sworn or affirmed statements (called affidavits) of two medical doctors who are able to swear that, as set out above, the adult has a "mental infirmity" and, as a result of that infirmity, is incapable of managing their affairs.
Clearly, these medical practitioners must have the necessary knowledge of the adult to be able to make these statements. Generally, this might be the adult's family physician and another doctor who specializes in the area of the adult's disability. Obviously, if the adult regularly sees a specialist or there is one already knowledgable as to their condition (ie. neurologist, psychiatrist), this would be the appropriate doctor to choose. Other times this may mean searching for another family doctor who is either familiar with the adult and their condition or is willing to step forward, meet with the adult, review medical records (as necessary) and swear the required affidavit.

As a note of caution, remember that, unlike a psychiatrist, a psychologist is not a "medical practioiner" as required under the Act and thus cannot swear the required affidavit, no matter how familiar they may be with the adult and their conditon.
These affidavits, together with other documents, are sent to the Nova Scotia Supreme Court with a request for a hearing. It is at the hearing of this first application that the date will be set for the second hearing.

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Legal Guardianship ... Why? [Part I]

In law, a "guardian" is a word used to describe a person who has the care or custody of another individual and who has a legal duty to provide for that individual. Just as we tend to think of parent-child relationships when we think of guardianship, so too most of the laws around guardianship deal with that relationship. So why would you, as a parent or other family member, even consider obtaining guardianship of your young adult child or family member with a disability?

Because guardianship is also available for adults who need another person to legally make decisions on their behalf. Obviously not every indvidual with a mental or physical disability or mental illness will require a guardian. However, your young adult family member might need a guardian for very specific areas of decision-making or for most or all aspects of daily living. The needs of adults who need a guardian are as varied as are their abilities to make their own decisions.

And when it comes to your family member with a disability, you may want to consider this. If you're the parent of a child with a significant disability, you have played a direct and vital role in their life for all of their life. But that can easily change, in the blink of an eye even, once they reach the legal age of majority. In Nova Scotia, that magic age is 19.
At 19 years of age, your child, disabled or not, is legally considered to be an adult and, from the point of view of the law, you will have no more right to make binding decisions for that child than you would for any other adult in the Province. Nor will you legally have the right to access information, including medical information, about your young adult child without that child's consent. And if your child is considered mentally incapable of giving such consent...

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Welcome ... and Thanks to NSACL

Many thanks to the Nova Scotia Association for Community Living for mentioning the blog in their latest Newsletter. And to those of you who have dropped by over the last coupla to "check it out", Welcome.

As noted below, two of the things I am working on at the moment are setting out the process a parent must go through to obtain guardianship of their young adult (as well as information on why you would want to do this) and information on the various programs available through the Province's Services for Persons with Disabilities Program. So please keep checking back in. I hope to have something up on at least one of these topics over the next couple of days.

But I also wanted to let people know that I am more than open to suggestions for topics. So please tell me what issues concern you, what you want to hear about. And feel free to drop comments in the comment box on any topic that grabs your fancy. Who knows, we might just get an actual conversation going.

Oh yeah, one more thing. Please, pass it on. If you find the site useful to you, or think it might be in the future, then please tell others who you think might benefit. I think its really important that we get information out there to parents. After all, we can only advocate properly for our children if we know their and our rights.

Services for Persons with Disabilities Program... Posting Update

I know I promised more detailed posts on the programs available under the Province's Services for Persons with Disabilities Program and I haven't forgotten. At the moment I am just waiting to tie up some loose ends before hitting "Publish".

I also haven't forgotten my promise concerning the process to obtain guardianship of your young adult.

So Stay Tuned, it's all a'comin'!

The Tort of Educational Malpractice ... Does it Exist in Canada?

In Canada, the US and Britain, at various times students and their parents have attempted to bring law suits against school boards or government agencies for the alleged failure to provide the student with an appropriate education. In some cases, the lawsuits are brought by special education students; in other cases, by "typical" students. This type of lawsuit has become known as "educational malpractice"**.

The theory is that school boards and others have a duty to provide children with a proper education and if they are negligent in fulfilling this duty (if they do not meet the standard of a reasonable school board for example) they will be liable for the damages suffered by the student.

Although an interesting theory, it has not received a good response from the Canadian courts.

In two recent British Columbia cases, the BC Court of Appeal noted that it had not referred to it any case in which damages were awarded for educational malpractice and that such claims had been rejected by virtually all appellate courts in the United States. The Court held that educational malpractice, whether framed in negligence, negligent misrepresentation or fraudulent misrepresentation constituted, at a minimum, a "novel cause of action". Although the claims alleging educational malpractice would not plainly fail and were not necessarily frivolous, the field was found to be in significant dispute and the court opined that the plaintiffs "would face a formidable task against heavy authority to establish this case as an exception to the general rule". (Rumley v. British Columbia (1999), 72 B.C.L.R. (3d) 1 (C.A.) and R.(L.) v. British Columbia (1999), 72 B.C.L.R. (3d) 1 (C.A.)

In an Alberta case, the Native Indians plaintiffs had been placed in residential schools during their youth. They brought actions against the government and religious organizations alleging wrongful confinement, Charter violations, natural law, reconciliation feasts, educational malpractice, religious indoctrination, treaty claims and human rights claims. The defendants applied to have the proceedings struck as disclosing no cause of action. In regard to the claims of educational malpractice, the court found that the egregious conduct described in the plaintiffs’s claims were sufficient to sustain such an action. Further, the plaintiffs’ claims with respect to educational malpractice were inextricably woven with allegations of breach of fiduciary duty and breach of treaty rights and, as such, were sustainable. The particular "egregious" conduct alleged in regard to the claim of educational malpractice is not set out in the decision. (Indian Residential Schools, Re (2000), 82 Alta. L.R. (3d) 99 (Q.B.)

DISABILITY AND ESTATE PLANNING SEMINIAR FOR PARENTS AND FAMILIES

Apropos my previous two posts, by way of the Schizophrenia Society of Nova Scotia site, I just came across this little gem:

The Nova Scotia Down Syndrome Society is hosting a seminar focusing on Saving on Taxes, Protecting Inheritances and Maximizing Disability Support Benefits. The presenter is Kenneth Pope, LLB, TEP. (http://www.kpopelaw.ca/)

Saturday, October 13, 2007
10:00 am or 2:00 pm

Saint Mary’s University, Sobey Building, Room 265
923 Robie Street
Halifax, Nova Scotia

To View Poster, Click Here

Drafting a Will When There's a Child with Disabilities

That last post on Registered Disability Savings Plans reminded me of one other very important thing for a parent of a child with a disability to remember when it comes to the issue of financial planning.

It is VERY important to ensure that any Will you might execute in which you leave funds in Trust to your child with a disability be properly drafted so that your child will not be required to use up all of those trust funds before being eligible for even basic benefits from the Province.

Please remember that simply placing funds "In Trust", upon your death, for your child with a disability (much as you might do with a typical child) will likely NOT be sufficient to preserve your child's rights to collect social assistance benefits, or access other programs and services from the Province without cost, either as a child or an adult.

So whether you're just planning your estate or already have a Will drafted, please ensure that you double check with legal counsel knowledgable around the issue of drafting trusts for individuals with disabilities. Unfortunately, a mistake in that area is the type that's only found out too late for all involved.

If you would like more info around this issue, feel free to drop me a line by using the Contact info that can be found under the Profile link.

The RDSP ... Boom or Bust?

A Brief Post on Registered Disability Saving Plans

There has been a fair bit of excitement surrounding recent changes to the federal budget which will allow, for the first time ever, parents and others to invest funds tax-free in order to save for the long-term financial security of a child with a disability. The plan structure is similar to that of a Registered Education Savings Plan. Details of the Registered Disability Savings Plan (RDSP) can be found here.

But as much as this is a wonderful hard-fought-for step forward, I was reminded of the critical sticky point in this plan when I received my copy of the PLAN newsletter today. Which reminds me, if you're not familiar with PLAN, you really should check them out.

But back to RDSPs. We've been talking about the Department of Community Services' Services for Persons with Disabilities Program recently. You will recall that at least some of the programs available under the SPD program are intended to take away the stigma associated with receiving social assistance (which is now more properly called "Employment and Income Assistance") by providing one source of funding for adults with disabilities in the Province, for both basic and special needs. But eligibility for ALL such types of basic social assistance benefits is, of course, means-tested. Meaning that if the individual has access to virtually any other income or assets, they will not be eligible for even these basic benefits.

The problem with the new RDSP program is laid out at p. 2 of the latest PLAN newletter under the heading "Ripple Effects: Provincial Reforms":

Since owners of Disability Savings Plans will usually receive provincial disability benefits, reforms to provincial and territorial systems will be necessary. The two obvious areas that must be addressed are:

1. Asset limits – current rules would make RDSP holders ineligible for benefits
2. Treatment of income – clawing back revenue from RDSPs would defeat the purpose of saving.

In other words, unless and until the provinces (including Nova Scotia) change the way in which individuals with disabilities are means-tested for benefits (be it basic social assistance or other programs and services available under the SPD program), other than the potential income tax savings for the donors, there will be little to no benefit to be had for a person with a disability to have access to a RDSP. Because the government will simply insist that the individual with a disability use up the vast majority of the funds in a RDSP before they will be eligible for government programs and services.

PLAN suggests "Five actions to stay informed and get involved". I would seriously suggest that you check them out.

But I would also seriously suggest that you add a Sixth Action:

• Contact your local MLA and The Honourable Judy Streatch, Minister of Community Services, to let them know how important it is that the provincial government change its treatment of both assets and income so that individuals with disabilities, their friends and their families can take full advantage of the new RDSP program.

Update: I've noticed that, thanks to Google, a lot of people who search the words "Registered Disability Savings Plan" end up on this page. Which is a good thing except that there are a lot more up-to-date posts on the RSDP and its implementation on this blog that they are missing. So might I suggest you search this label to make sure you get full coverage on this issue.

Special Education Report ... Part III

"In Nova Scotia, are we waiting for students to fail and the gap between potential and achievement to widen before particular services
are offered?"

* * * * * * * * * * * * * * * * * * * *



• Government, through the Depts of Education and Community Services, collaborate to ensure that students with special needs have access and support for post-school learning options.

Perhaps one of the best sentiments expressed by the Commission:

"For a person to have been educated in an inclusive educational system not to be supported through post-school leaving options is unacceptable".

Perhaps one of their biggest understatements:

"This may be an area that presents another opportunity for inter-agency collaberation".

• The Department review the course options available to enable students with special needs to graduate with the skills necessary to be lifelong learners and contributing community members.

Its to state the obvious to note that academic and social inclusion work better in the elementary grades than at the middle and high school level. Have you ever felt concerned that your student was attending classes that were beyond his capabilities and that even with adaptations or an IPP, the course content had limited relevance for him?

All youth, especially those with special needs, must have access to a variety of programming options, such as service learning, work experience, co-operative education, apprenticeships and youth pathways. Would the Options and Opportunities (O2) Program be a suitable alternative for your child ... hands on learning opportunities to help with the transition from high school to work? If so, be prepared for the possibility of an uphill battle; you might just be told that "this program isn't meant for your child. You wouldn't him with those kids".

• The Department continue its promotion of substantive inter-agency co-operation that works towards intergrated services (IS) schools, as well as address the recommendations of the Nunn Commission.

Inter-agency co-operation? Why the words are enough to set a parent's heart all a' flutter...

Perhaps if we're very lucky the Nunn Commission report which emphasized the obvious gaps in jurisdiction, policy and practice between the Departments of Health, Education, Community Services and Justice will help the government realize that "considerations of human rights trump interdepartmental squabbles". An inter-agency protocol needs to be a priority for government departments responsible for children and youth in need of special services.

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