Practical legal advice to assist Nova Scotians with navigating the educational and community services systems.
Published by Michelle Morgan-Coole @ MMC Legal Services
Many have inquired why an individual with a disability couldn't simply sign a Power of Attorney (POA) appointing a parent (or whomever) as the person to handle some of or all of their affairs. As opposed to the messiness which is guardianship, the "taking away" of the individual's rights, to say nothing of the exorbitant cost involved.
Which is a very good question. Although, unfortunately, I think my answer will not only be lengthy (there are many points to consider) but also not what many would prefer to hear. At any rate, I have decided to break this issue down into a few posts.
In this first part, we will examine the standard of competency required to execute a valid POA.
The first thing to consider is that the donor (the person granting the POA) must be high functioning enough to be competent to make one.
When is it too late to give a power of attorney?
A - It is too late to give a power of attorney if you are not mentally competent. Competency is sometimes an issue where the person wishing to give a power of attorney is suffering from progressive dementia. In this situation, it may be necessary to get a medical opinion as to whether the person is competent.
Although written from the point of view of the more or less typical person, this excerpt still makes the point.
In my opinion, if a person is capable of executing a valid POA then they probably don't need (or at least wouldn't qualify for) guardianship in the first place. Meaning that, the way I see it, the law would take the view that if they are legally capable of executing a valid POA, they are legally competent to manage their own affairs.
But although I am fairly confident that the standard of competency required to execute a POA is the similar to the legal standard of competency to be able to enter into a contract, for example, I have come across a few lawyers who seem to think otherwise, that as long as the person has the ability to understand what they are signing, it is okay. Which would mean, if correct, that creating a "simplified" POA (simplified to the ability of understanding of the donor) would be effective.
You don't have to spend much time around here to realize that I consider guardianship to be an important option to be seriously considered by parents of adult children with disabilities.
Many, of course, feel differently on the subject. Many, in fact, feel strongly differently.
Which has led to many a conversation on the subject in which I heard expressed people's concerns and confusion. On everything from the philosophical to the eminently practical, including the query of how necessary guardianship is and whether it's even available in the case of a higher functioning individual and what, if any, other options to guardianship might be available.
I have often been asked, for example, whether a person with a disability could simply execute a Power of Attorney (POA) in favour of the parent instead of the parent having to go through the guardianship process. For the past few days I've been working on a blawg post which tried to cover all the issues inherent in that particular question. This evening I realized there are simply too many points to simply throw into one post.
So. Time for Plan B.
I am going to try to respond to some as many of the issues surrounding guardianship (including the relationship between guardianship and a POA) as I reasonably can in a multi-part series of posts over the next over little while.
So far, the issues I hope to cover include
What options, other than guardianship, are available in Nova Scotia to transfer or support the decision-making power of an adult with a disability
What rights, exactly, are "taken away" from the person with a disability if guardianship is granted and what are the practical effects of this
In the case of higher functioning adults, whether guardianship is
a legally-available option; or
even necessary
The many issues involved in deciding between a Power of Attorney as opposed to guardianship, which include
the level of competency that is required in order to execute a valid POA
potential issues surrounding the revocation of a POA
which decision-making powers are transferred with a POA
what other documents might be required to transfer other decision-making powers not covered by a POA
using a POA to open a RDSP on behalf of another individual
What other provinces have done around the issue of guardianship for persons with disabilities
Realistically, what options currently are or might in the future be available for a parent seeking guardianship of their adult child other than the traditional option of hiring a lawyer
So there you have it. My plan, at least for the moment.
Unless, of course, you, dear reader, would care to throw some additional questions/issues on the subject into the mix. In which case, drop me a comment or an email and let me know over the next few days week.
In the meantime, stay tuned. And watch this space.
Have you heard about the campaign to 'End The "r" Word'?
Personally, I think it might be a little over the top. For the simple reason that it seems to attempt to paint the use of the word as "hate speech".
Don't get me wrong, I do have a big problem with people throwing around the word "retard", be it unintentionally and casually or in a mean-spirited way. Always have, ever since I was a child. Growing up with two severely challenged older sisters, I suppose that's not too surprising.
It's just that I tend to approach most things from a legal point of view. And coming from it that perspective, I find it a little over the top to attempt to label it "hate speech". Although it might well fit the Wikepedia definition, I have a little more trouble rounding it with the legal [Criminal Code] definition.
Public incitement of hatred 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.
Wilful promotion of hatred (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction
And although it may well fit within the definition of what has become commonly known as "hate speech" under sec. 13 of the Canadian Human Rights Act, I have a lot of problems (both from a legal and personal point of view) with that section.
That being said, I'm more than happy to point you in the direction of some rather cool opinion out there on the subject. From those who have the most right to object and tell all of us exactly how they think and feel on the subject.
But my own opinion on the campaign aside, it's hard to argue with the premise that the words we choose are an expression of our values and that much hurt and harm can be caused by using hurtful language. And whether or not we can stop the general public from throwing around the word as an insult, there can be no argument that it's high time the Nova Scotia government woke up and changed the centuries old wording of some of our provincial legislation.
For example, over the years, the wording of the Incompetent Persons Act (which is the legislation under which a person would apply for a guardianship order) has been more than enough to make a person's stomach churn. Fortunately, that legislation has been recently amended to remove the references to "lunatics", the "insane", "insane and dangerous persons" and one of my personal favourites, "dangerous idiot".
And although some might still take offence to the new and improved language in the Act which now uses the word "incompetent", it is a huge improvement. And, personal feelings aside, legally accurate. So perhaps we are getting there, slowly but surely.
In a similar, but much more far-reaching vein, United States Senator Barbara Mikulski is attempting to remove the words "mental retardation" and "mentally retarded" from that country's federal law books and have them replaced with “intellectual disability” and “individual with an intellectual disability”. This with a piece of legislation known as "Rosa's Law" which has an interesting bit of history behind it.
Rosa’s Law replicates a law recently adopted in Maryland. Senator Mikulski first heard about the state law from Rosa’s mother during a roundtable discussion about special education held in Edgewater, Maryland. Due to requirements in the Individuals with Disabilities Education Act (IDEA), each student who receives special education services at public schools has an individualized education program (IEP) that describes the student’s disability and the special education and services that child will receive. Rosa has an intellectual disability – Downs Syndrome – and so was designated as a student with “mental retardation” in her IEP, giving way to people at the school referring to Rosa as retarded. Senator Mikulski promised Rosa’s mother that if the bill became law in Maryland, she would take it to the floor of the United States Senate.
“This bill is driven by a passion for social justice and compassion for the human condition,” said Senator Mikulski, a senior member of the HELP Committee. “We’ve done a lot to come out of the dark ages of institutionalization and exclusion when it comes to people with intellectual disabilities. I urge my colleagues to join me to take a step further. The disability community deserves it. Rosa deserves it.”
“Mental retardation” and “mentally retarded” are terms commonly used in federal laws, including the Individual With Disabilities Education Act, the Higher Education Act, the Elementary and Secondary Education Act, also known as No Child Left Behind, and the Rehabilitation Act of 1973.
And just in case anyone out there really wonders why it matters, perhaps they should take a moment to listen to Rosa's brother. Out of the mouths of babes, indeed.
When Rosa’s Law was being considered by the Maryland General Assembly, Rosa’s 13-year-old brother, Nick, successfully testified on her behalf for a substitution of mentally retarded with intellectual disability. He explained, “Some people say they are just words, and it’s not going to make a difference if we just change the words. Some say we shouldn’t worry about the words, just the way we treat people. But when you think about it, what you call people is how you treat them! If we change the words, maybe it’ll be the start of a new attitude towards people with intellectual disabilities. They deserve it.”
And now, if you don't mind, I would like to leave you with one of my personal favourites. Short. Sweet. And to the point.
Good news ... TD Canada Trust has announced that the RDSP is now available.
And with Scotiabank expected to come on board in a mere few weeks (November 23, 2009), that brings to five the number of banks which will be offering the RDSP nationally.
With totals apparently nearing close to 20,000 accounts opened and nearly $40 million distributed through Canada Disability Savings Grants and Canada Disability Savings Bonds. Yep, that's right, I said $40 million distributed from the Federal Government to individuals with disabilities.
And, as Doug advises us at the RDSP Blog, the banks are now starting to become more streamlined around setting up the RDSP and receiving Federal Government contributions into the plan. Which is very good news, indeed.
Many of you I have never even met face to face, but I've searched you out every day. I've looked for you on the internet, on playgrounds and in grocery stores.
I've become an expert at identifying you. You are well worn. You are stronger than you ever wanted to be. Your words ring experience, experience you culled with your very heart and soul. You are compassionate beyond the expectations of this world. You are my "sisters."
Yes, you and I, my friend, are sisters in a sorority. A very elite sorority. We are special. Just like any other sorority, we were chosen to be members. Some of us were invited to join immediately, some not for months or even years. Some of us even tried to refuse membership, but to no avail.
We were initiated in neurologist's offices and NICU units, in obstetrician's offices, in emergency rooms, and during ultrasounds. We were initiated with sombre telephone calls, consultations, evaluations, blood tests, x-rays, MRI films, and heart surgeries.
All of us have one thing in common. One day things were fine. We were pregnant, or we had just given birth, or we were nursing our newborn, or we were playing with our toddler. Yes, one minute everything was fine. Then, whether it happened in an instant, as it often does, or over the course of a few weeks or months, our entire lives changed. Something wasn't quite right.
Then we found ourselves mothers of children with special needs. We are united, we sisters, regardless of the diversity of our children's special needs. Some of our children undergo chemotherapy. Some need respirators and ventilators. Some are unable to talk, some are unable to walk. Some eat through feeding tubes. Some live in a different world. We do not discriminate against those mothers whose children's needs are not as "special" as our child's. We have mutual respect and empathy for all the women who walk in our shoes.
We are knowledgeable. We have educated ourselves with whatever materials we could find. We know "the" specialists in the field. We know "the" neurologists, "the" hospitals, "the" wonder drugs, "the" treatments. We know "the" tests that need to be done, we know "the" degenerative and progressive diseases and we hold our breath while our children are tested for them. Without formal education, we could become board certified in neurology, endocrinology, and psychology.
We have taken on our insurance companies and school boards to get what our children need to survive, and to flourish. We have prevailed upon the state to include augmentative communication devices in special education classes and mainstream schools for our children with cerebral palsy. We have laboured to prove to insurance companies the medical necessity of gait trainers and other adaptive equipment for our children with spinal cord defects. We have sued municipalities to have our children properly classified so they could receive education and evaluation commensurate with their diagnosis. We have learned to deal with the rest of the world, even if that means walking away from it.
We have tolerated scorn in supermarkets during "tantrums" and gritted our teeth while discipline was advocated by the person behind us on line. We have tolerated inane suggestions and home remedies from well-meaning strangers. We have tolerated mothers of children without special needs complaining about chicken pox and ear infections. We have learned that many of our closest friends can't understand what it's like to be in our sorority, and don't even want to try.
We have our own personal copies of Emily Perl Kingsley's "Welcome to Holland" and Erma Bombeck's "The Special Mother". We keep them by our bedside and read and reread them during our toughest hours. We have coped with holidays. We have found ways to get our physically handicapped children to the neighbours front doors on Halloween, and we have found ways to help our deaf children from the words, "trick or treat." We have painted a canvas of lights and a blazing Yule log with our words for our blind children. We have pureed turkey on Thanksgiving. We have bought white chocolate bunnies for Easter. And all the while, we have tried to create a festive atmosphere for the rest of our family.
We've gotten up every morning since our journey began wondering how we'd make it through another day, and gone to bed every evening not sure how we did it. We've mourned the fact that we never got to relax and sip red wine in Italy. We've mourned the fact that our trip to Holland has required much more baggage than we ever imagined when we first visited the travel agent. And we've mourned because we left for the airport without most of the things we needed for the trip.
But we, sisters, we keep the faith always. We never stop believing. Our love for our special children and our belief in all that they will achieve in life knows no bounds. We dream of them and home runs. We visualize them running sprints and marathons. We dream of them planting vegetable seeds, riding horses and chopping down trees. We hear their angelic voices singing Christmas carols. We see their palettes smeared with watercolours, and their fingers flying over ivory keys in a concert hall. We are amazed at the grace of their pirouettes. We never, never stop believing in all they will accomplish as they pass through this world.
But in the meantime, my sisters, the most important thing we do, is hold tight to their little hands as together we special mothers and our special children, reach for the stars.
By Maureen K. Higgins (borrowed from Daisy's Cafe)
Update:That was easy. Survey complete. Now it's your turn.
Decima Research is conducting a research study on behalf of Human Resources and Skills Development Canada. This study is about programs and services that are offered to Canadians with disabilities. We are looking to survey people with disabilities, their legal guardian, or their caregiver.
We are asking for your help to find people who meet this criteria and who would be willing to participate in this study.
Please be assured that all information collected will be kept confidential and will be used only for the purposes of this research study. The results will be reported in aggregate form only and no person or organization will be identified. The survey will take about 10 minutes to complete.
Participants can conduct the survey using any of the following methods:
1) ONLINE: Please provide eligible participants will [this website]: . This link will take them directly to Decima's secure online survey site.
2) TELEPHONE: Please provide eligible participants with the following toll-free number to call: 1-888-288-0199. They can complete the survey immediately, or schedule an interview for a later date. Please ask them to reference study #47380.
3) TTY: Please provide eligible participants who have a hearing or speech impairment with the following email address: 47380@decima.com. They may contact us to arrange an interview date and time. We will then contact them via TTY through a Bell relay service operator at the time of their choosing.
Additionally, in a separate email I will send you a poster that you can use to help with recruitment. It has all the pertinent information on it, including a brief description of this study, the eligibility criteria, and the various ways participants can complete the survey.
For further information about this study, please contact:
Megan Tam Vice President 613-230-2200 ext. 3095
On behalf of HRSDC, thank you for your help on this important study.
It's one thing to discuss the big picture of how things should work in the world of special education. It can often be quite another thing to attempt to navigate through that maze on the ground.
I received a question last week asking about how to obtain an exemption from core French for a special needs child in Nova Scotia.
We have requested on several occasions that our son be exempted from French at school because of his disability (PDD-NOS/NLD). We have been told that the school is unable to exempt any student from French and that he will have to continue to take it even though there is no reasonable expectation that he will learn to use it. The school has offered an IPP (although it was never put in place, he currently draws pictures in French class) but we wanted him removed from French so that he could use those classes for organization and catch up (or maybe even some tutorial). We have been told there is no way around this although there are other children in the school who have been exempted from French. What is your take on this?
I ran into this last year with my oldest daughter. Ironically, she has always enjoyed French but I knew the time would come when it would be way over her head. Frankly, I was surprised that it took until Grade 8 before that occurred.
Also, somewhat ironically, although I had questioned the school about the possibility of a French exemption when she started Middle School, the thought never even entered my mind the night I wrote a note in the communication book complaining about the French homework she had brought home. Homework which involved translating whole sentences and which was way beyond her ability. Imagine my surprise to get a note home the next day saying that 'they' understood completely and would be applying for a French exemption for my daughter.
For those not so lucky, let's take a look at how the process of obtaining an exemption should works. Although, first, I should point out that "Core French" is only mandatory from Grades 4 through 9; after that it becomes an elective and the problem is effectively solved.
Much like we discussed in a previous post which set out the relationship between legislation, regulations and policy, the policies of any particular school must be in line with those of their school board. Which, in turn, must be in line with the Department of Education's policies in the relevant area.
As a parent being refused some accommodation, service or plan for your child, you will want want to follow this hierarchy from the top down in order to gather the information you need to make a sound argument. Meaning that first you would look to the Education Act to see if your situation is covered there. Whether or not it is, you would continue through a search of the both the Ministerial and Governor in Council Regulations made under the Act. Then you would continue to search the relevant Department of Education policies and finally your own school board policies.
