I'm Not Sure Those Words Mean What You Think They Mean ...

I will definitely have more to say about the Province's proposed new adult guardianship legislation, Adult Capacity and Decision-Making Act, over the next few weeks, but for now I just want to point out what happens when Ministers of the Crown might not have a complete grasp on all the complex legal issues they are responsible for.

Two comments made recently by Justice Minister Mark Furey with respect to the proposed legislation have me a little concerned.

Although the Minister is certainly correct when he states that our current legislation, the Incompetent Persons Act takes an “all or nothing” approach, giving complete control to a guardian for all aspects of a person’s decision-making and I agree that the new legislation is "more progressive”, my concern is that his comment immediately following; namely, that the new Act includes a “presumption of capacity”, could definitely be misleading to some.

Although, unlike the proposed legislation, the Incompetent Persons Act does not clearly state that "an adult is presumed to have capacity, unless the contrary is clearly", this has always been the state of the law at common law. "Common law" simply means judge-made law and it is very bit as valid as legislation, unless some piece of legislation overrides it.

This means that even though our current legislation doesn't explicitly state it, everyone over the age of 19 years in this Province is already presumed to have capacity (or be competent) and for the past several hundred years, an applicant (a person seeking to be appointed as guardian) must prove that an adult is not competent before a guardianship order will be granted.

My second issue with the Minister's comments is that "experts would asses the adult’s capacity to make decisions and the court would determine whether the person applying to be a representative is suitable".

Again, although, perhaps, not technically wrong, it most certainly implies (at least on my reading) that

• the expert will assess and decide the adult's capacity; and
• the court will decide if the applicant is a suitable representative (aka "guardian").

The problem is with that first bullet, as it will be the court that determines whether or not a person has capacity, not any expert. We currently need evidence from two medical doctors stating that the adult is incompetent and unable to manage their affairs. Under the new legislation, there will only be one professional assessing the adult's capacity; however, the court is and will remain the final arbiter and, as always, is free to accept some, all or none of an expert's opinion evidence.

And thus my concern with how legal information is sometimes filtered through government officials to the general public. I will share some of my concerns with the proposed legislation, itself, in a later blawg post.