FAQs

Please note that new legislation with respect to guardianship (now representation) in Nova Scotia came into force in December, 2017 (the "Adult Capacity and Decision Making Act").

This new legislation significantly changed the landscape with respect to the legal options available to assist adults with intellectual disabilities in Nova Scotia. Guardianship is no more, having been replaced by "representation", a much more finely tuned instrument and much more significant than a change of name only.

I am currently in the process of updating this page to reflect the new reality, but with a busy practice it might take a little while. Feel free to contact me directly if you have any questions.
mmclegalservices.ca


1.  What is Guardianship Representation?
In law, "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 individual 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 require a guardian are as varied as are their abilities to make their own decisions.

But 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 lives 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 individual 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 as just one thing to consider, what happens if your adult child is considered mentally incapable of giving such consent?

2.  Why Guardianship?

Given the above, there are four particular reasons why you might want to consider guardianship.

1.  The Privacy Act and the Personal Information Protection and the Electronic Documents Act. New federal legislation has created a trend towards the formalization of authority to appoint persons to make decisions for children with intellectual disabilities who have obtained the age of majority.  The Privacy Act applies to institutions, such as government institutions and hospitals, whereas the Personal Information Protection and Electronic Documents Act applies to individuals, such as individual medical practitioners. Both Acts address the privacy of records, such as medical records and provide stiff penalties for providing access to such records without clear authority. The keystone to providing access to medical information is consent. If the patient is incapable of providing such consent, then the medical practitioner must assure himself that the person providing consent has the lawful authority to do so.
2. Guardianship also allows one to direct the placement of an adult child in a care facility and allows one to be involved in the ongoing care decisions with respect to such placement.
3. The Registered Disability Savings Plan (RDSP)
   Initially, if an individual was over the age of 18 they must open RDSP in their own name. But if an individual was over the age of 18 but not considered legally competent neither that individual nor their parent nor anyone else (with certain limited exceptions) could open RDSP for that person  - - > one of those exceptions is a person who has guardianship. However, that situation has now changed courtesy of the 2012 Federal Budget (at least until 2016).
4. Control of the “estate” of the adult
Although there may be few assets at first,when the surviving parent dies, it is not uncommon that funds are left for the care of the child, sometimes (hopefully) in discretionary trusts and, in some cases, in the form of homes or properties, that are designated for the care and continued living of the adult child with an intellectual disability. In these circumstances, guardians play a crucial role in administering the “estates” of their charges, to ensure that the beneficiaries who have an intellectual disability are receiving the extra care and amenities for which their parents provided. 

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And yet you can't help but think of how hard you and others have worked to foster and encourage independence in your loved one with a disability.  Why, now, would you take that independence away with a a guardianship order? Might I suggest that this does not have to be an all or nothing proposition.  Although it is true that, from a legal point of view, the effect of an order made under the Incompetent Persons Act here), this does not mean that you need to exercise all those rights all of the time. As guardian of a person who is very low-functioning, you might well find yourself exercising the majority of these rights all the time.  But for the guardian of a higher-functioning adult, I see a guardianship order more like as an insurance policy.  You may hope that you never have to use it.  But you are awfully happy that you had the foresight to put it in place should the occasion arise when you need it. The way I see it is that you, as the person’s parent and proposed guardian, either have your child’s best interests at heart. Or you don’t. And whether or not you have guardianship isn’t going to change your intentions. What having guardianship will do is make it easier to carry those intentions (good or bad) out.

 

3.  My Child is Mentally Challenged.  Don't I Remain Her Guardian When She Becomes an Adult? 

No, you don't.  In Nova Scotia, every individual age 19 years and over is considered to be competent (until proven otherwise) and, without court-ordered guardianship, legally you will have no more say or control over their lives than you would any other adult. 

4.  It is Possible to Have Two Individuals Be Joint Guardians? 

Yes, it is definitely possible to have two individuals (such as the mother and the father of the incompetent person or a parent and an older sibling) share guardianship as long as both guardians are over the age of 19 years. 

* 5.  If I'm Applying For Guardianship, Do I Really Have to Serve My The Other Parent Even if I Had Sole Custody/They Haven't Seen Or Supported The Young Adult For Years? 

First of all, notice I said "had sole custody", not "have sole custody" - for the simple fact that while you may have had sole custody, once the young adult turns 19, nobody has custody. And the answer to the question is a resounding Yes. Civil Procedure Rule 71.04 (2) requires that, unless the court otherwise orders, a copy of the Notice of Application (the court document that commences a guardianship application) must be delivered to "a parent, spouse, and adult child of the person other than the applicant".  Sorry, folks, no getting around that, not unless you can convince the court otherwise. Which, I imagine, would be saved for circumstances where, despite reasonable efforts, the other parent cannot be located. 

6.  What Are The Effects of a Guardianship Order? 

In Nova Scotia, an order for guardianship made pursuant to the Incompetent Persons Act restricts the following rights: • the right to deal with property; • the right to vote in an election; • the right to be a juror; • the right to consent to or refuse medical treatment; • the right to start a civil action or to defend one; and • the right to marry or divorce. 

7.   Isn't a Power of Attorney Just as Good as Guardianship? You can read about the potential issues concerning the use of Powers of Attorney here and here. 

8.  Can I Have my Son or Daughter Sign a Personal Directive Instead of Applying for Guardianship? 

You will find a discussion concerning the use of Personal Directives here. 

9.   If I Have Guardianship, Can I Pass That Guardianship on to Another Individual Through My Will?

No. Unlike like the situation in some other provinces, the Nova Scotia legislation does not provide any way for the guardianship of an adult to automatically continue following the death of the guardian. Legally, the only available solution would be for another individual to essentially start from scratch and apply to the court to be appointed as guardian just as the initial guardian had. However, you can read more on this subject here.

10. Is a Guardianship Order Made Under the Guardianship Act? 

In Nova Scotia, the guardianship of minors (individuals under the age of 19 years) is dealt with in the Guardianship Act. Guardianship of adults (those individuals age 19 and older) is dealt with under the Incompetent Persons Act. 

11.  How Do I Obtain a Guardianship Order? 

In Nova Scotia, you essentially have 3 options as to how to proceed with a guardianship application: .
• Hire a lawyer -although highly recommended, this can be a very expensive proposition for many families.
• Apply for Legal Aid - mentioning the “poverty law initiative” should, hopefully, open the door to Legal Aid agreeing to take on a guardianship application. You could also consider having the child made the client if the family fails to qualify financially. But beware - in order for the child to be the client, he or she must be found capable enough to instruct a lawyer and willing to tell the lawyer that this is what he or she wants.
• Go it alone.

12.  What is The Nova Scotia Legal Guardianship Kit? 

Should you decide to "go it alone", the Nova Scotia Legal Guardianship Kit will provide you with the 15 precedent documents which you could, possibly, be required to file with the Nova Scotia Supreme Court in the course of a guardianship application - the exact number will vary depending on whether one or two individuals are applying for guardianship. But, more importantly, the Nova Scotia Legal Guardianship Kit will also provide you with the information you need to properly fill out and tailor those documents (including examples) so as to accurately represent your unique situation. In addition, the Nova Scotia Legal Guardianship Kit will walk you through the process to be followed in filing the documents and the actual court appearance, itself.  It will also set out your ongoing duties and responsibilities as a guardian. 

But, first, a few very important points: The Nova Scotia Legal Guardianship Kit was created to be used in the Province of Nova Scotia.  And only in the Province of Nova Scotia.  Guardianship laws vary across the provinces, meaning that what 'works' here will not work elsewhere.  The precedents (the documents which you will modify and then file with the court) are based on the Nova Scotia Civil Procedure Rules and are not intended for use in any other province.

In situations involving young adults with disabilities who tend not to have many assets of their own, the necessary documentation is provided to file a personal bond with two sureties. However, in situations where the incompetent person has a significant estate (such as, for example, where the family member of a senior citizen is seeking guardianship due to incompetency caused by dementia), the person(s) seeking guardianship would be required to purchase a bond from an insurance company, in which case there would be no need for the sureties. For this reason, you Kit contains the information required to proceed in both situations where the adult has few assets and situations where there is a substantial estate.

As noted above, the Nova Scotia Legal Guardianship Kit is intended to be used in situations involving uncontested guardianship applications. Although the Nova Scotia Legal Guardianship Kit was not created to deal with the situation where anyone (including the person who is to be declared incompetent) contests the guardianship, if cost is a significant factor, it might well make sense to purchase the Kit and draft all the required paperwork prior to meeting with and retaining a lawyer.

The discerning reader will also have noted the court appearance referenced above. Applying for the guardianship of an adult in Nova Scotia involves one court appearance - take heart, up until a year ago, it involved two such appearances.  Some individuals will not at all be comfortable with the idea of appearing in court.  The Nova Scotia Legal Guardianship Kit is not for these individuals. 

The most challenging part of the paperwork will be drafting the affidavits [a form of written evidence which will set out, in paragraph summary form, the story of your child's life and their current level of functioning (in the case of parents applying for guardianship of their disabled child) or the applicant(s) relationship to the incompetent person and the evidence of that incompetence, in other cases] required from the person(s) applying for guardianship and the two doctors who will support your application.  If you feel comfortable and confident that you can do this (with the support and examples given in the Kit) and make one court appearance in front of a judge who has already been provided with copies of the paperwork you have completed, the Nova Scotia Legal Guardianship Kit could be for you. 

One final comment - should you feel that the Nova Scotia Legal Guardianship Kit will be useful to you, I would strongly suggest that you not purchase the Kit too far in advance of the time you plan to make the application.  For example, if your child is currently 16 years old, you would be well advised to wait to purchase the Kit until a few months before your child's 19th birthday. That reason for this is that is is possible that some portion of the Civil Procedures Rules or some aspect of court procedure could change in the intervening time, requiring the Nova Scotia Legal Guardianship Kit to be updated.  By waiting until closer to the time you plan on making the application (perhaps purchasing the Nova Scotia Legal Guardianship Kit two or three months in advance of that date) you will know you are receiving the most up-to-date version of the Nova Scotia Legal Guardianship Kit. 

So to summarize: There is no guarantee that you will ever be successful in getting guardianship on your own. For that matter, there is no guarantee you will be successful even with the services of a lawyer. The reason for this is that your ultimate success will be determined, in large part by how high-functioning the young adult is and whether or not anyone decides to contest your application. 

And if, after commencing this process, you come to find out that the application will be contested (either by the young adult or someone else), you may well have passed the usefulness of the Nova Scotia Legal Guardianship Kit and I would strongly recommend that, at a minimum, you consult with a lawyer before deciding how to proceed. 

  

* You can find answers to more guardianship questions (and even ask your own) 

More questions about guardianship? Drop me a line and I will try to include the answers here.