NS Family Fights for Future of Son with Disabilities

This video is making its way around FB with good reason.

It is heartbreaking and a true rendition of what is happening in Nova Scotia right now, particularly to those with more severe challenges, such as Brendon.

'Ensuring the Future of Your Child with Special Needs'

We have discussed various aspects of future planning for our children and other family member with special needs and I know from my presentations that this is a HUGE issue for families around the Province. As well it should be.

As luck would have it, I came across a great video the a few weeks ago, entitled "Ensuring the Future of Your Child with Special Needs". Upfront warning: the video is lengthy BUT I highly recommend watching the whole thing - it will be well worth your time.

Although American, I would say it is at least 80% straight on accurate for families here in Nova Scotia. And, best of all, the presenters (there are three of them) all have children with special needs, in addition to the professional expertise (a lawyer and a financial planner) they bring to the table. This means that they often speak as parents and when they do - trust me, you WILL relate.

"Unfortunately, doing nothing is an action of its own because eventually the future 

becomes the present ... If we have not planned for that eventuality, it will come 

either way and we will have less time to do something meaningful about it."

~ Keith Coldwell, Failure to Plan

Given that the video is quite lengthy, I though it might be useful to break it down into a Table of Contents, if you will. So here goes:

1. Introduction
2. Set Up
3. Greatest Hindrance to Parents Getting Started
4. First Steps (14:15)
5. Five Steps to Plan:

• Letter of Intent 
• Special Needs Trust
• Advance Directives 
• Guardianship 

     6.  The Importance of Communication

If you are a regular reader of the blawg, you will likely be familiar with some of these terms but perhaps not all.

Mea Culpa

My apologies for going so long without posting ... 51 days to be exact, but who's
counting, right?

As usual, excuses abound - I am happy to say that I have been busy work-wise, which is a very good thing when it comes time to pay the bills. That being said, I am, of course, always happy to consult with anyone who has a disability-related issue involving themselves or a family member.

So. I have come here today to apologize for the 51 days lengthy time between posts and to commit to doing better. I would really like to get this blawg on a consistent schedule and start blogging on a weekly basis.

My absence has not been for lack of material, believe me; I have quite a selection saved that I would like to blog about. Some get stale and out of date, of course, but I have enough blawg fodder to keep me going for a while.

There's one post in particular that I am really looking forward to working on - a couple of weeks back, I stumbled upon an EXCELLENT video on future planning for a family member with special needs. It's American, so not 100% on point, of course, but the vast majority of it should be very useful for Nova Scotian families. It's going to take some work on my part, though - I watched the entire very lengthy video once (actually it's more like I was riveted to it) but I will need to go through it again in order to break it down and discuss the issues in a meaningful way.

All right, then. You have my promise to get back to this blogging thing on a much more regular basis. Please feel free to hold me accountable - if you don't, who will?

A Gift ... From Ken Pope

I have been meaning to pass this on for a little while now - a Gift that dropped in my inbox last week.  And it seemed the perfect Gift to REGIFT!

So here you go ... Happy (Belated) New Year!

A New Year's  Resolution Booster Jan 15th - Jan 31st  2014

I know how difficult resolutions can be. I know we  say we will take the time to get our affairs in order... we resolve to...and time slips away. I would like to help you with that. Here is a $200 gift. Please take  this gift, take some time and schedule  an appointment.  Let's resolve to finding solutions and creating Peace of Mind All the Best for the New Year. Ken Pope $200 Towards Peace of Mind!       Schedule Appointment Now! For anyone who's not familiar with Mr. Pope ... let's just say you should be. You might recall that I've spoken about him on numerous occasions over the years. Please note that even though Mr. Pope is located in Ontario, he is licensed to practice across the country.

Kenneth C. Pope, Barrister and
Solicitor, started his practice in 1980,
in Ottawa, Ontario and travels nation
 wide to meet with clients and present 
seminars on Disabilities and Estate
Planning issues.

Ken is a Henson Trust specialist, 
helping provide peace of mind for 
families with a family member with 
disabilities or special needs.                

A Primer on ... Guardianship

While collecting links for that last post, I came across an interesting collection (the majority of them new) of legal websites that actually discuss adult guardianship in Nova Scotia.

That was quite surprising given that the last time I checked (admittedly maybe six to twelve months ago), there appeared to be a distinct lack of helpful sites on the subject. Lots to be found on child guardianship in Nova Scoita, to be sure; but not so much on adult guardianship.

At any rate, nice person that I am, I thought I might share these sites with you. So here goes:

• Guardianship of Adults (Legal Information Society of Nova Scotia) -
  It's nice to see that the Legal Information Society of Nova Scotia has finally completed the adult guardianship section on their site. The page answers the most basic burning questions, such as:

What is guardianship? 

Who is an incompetent person? 

Who can be a guardian? 

How is a guardian appointed? 

Are there protections if the guardian fails in their duties? 

What are the responsibilities of a guardian? 

What is included in an inventory? 

How does a guardianship end? 

What does a guardianship application cost? 

Are their alternatives to guardianship? 

It also provides a list of places where one can go to get more information on the subject. Given that online information is only as good as its source I would highly recommend the Legal Information Society of Nova Scotia's site.

• How to File a Guardianship Application in Supreme Court of Nova Scotia - This page (part of the Courts of Nova Scotia site) had been previously lacking, only setting out a small bit of basic information. But I see that they have now expanded the page to actually set out the entire process, step-by-step, in making a guardianship application.

• Guardianship of Adults (Taylor MacLellan Cochrane)- A word of caution with this one: although I included it because it sets out a lot of important and related information in an easy-to-read manner, it is a little out of date.

Meaning it would be best to tread carefully (and carry a big stick) through the material under the heading "Court Hearings" on p.4 (you will see it refers to there being two separate court hearings (this is no longer the case  - basically, we just start with the "second hearing" - there is no "first hearing" anymore) and amount set out as "Lawyer's Fees" on p. 6 (fees have obviously increased significantly since the making of this document).

However, other than those two things, it looks like it would be well worth your time.

Note to Taylor MacLellan Cochrane: You really need to update the material on your website.

So lots of good information there, to be sure, if you have the desire need to learn more about how guardianship works in this Province.

Of course, there is another great source of information available online on guardianship in Nova Scotia made available by yours truly. I just wouldn't want you to forget. '-)

Decisions About Health and Personal Care: What does it take to be legally capable?

For those interested concerned with issues around "consent" (and that should be all of us), might I suggest the recent presentation given by Professor Sheila Wildeman, a law professor at the Schullich School of Law (aka Dalhousie Law School).

Prof. Wildeman has a deep understanding of the issues involved under the Incompetent Persons Act and other relevant legislation in Nova Scotia. Beginning with the now well-known story of Jenny Hatch (the young American woman with Down Syndrome who successfully fought her parents' guardianship application), Professor Wildeman goes on to examine the current state of the law surrounding "legal capacity" in Nova Scotia in regards to guardianship and health and personal care decisions.

But she doesn't just offer a useful tour through the current state of the law - Professor Wildeman does an excellent job of setting out the fundamental values that are at stake here and explaining the differences between substitute decision-making regimes (such as guardianship) and supported decision-making (one of the newest buzz terms in the disability community).

Yes, the lecture is lengthy but I highly recommend it for anyone who wants to get a real grasp on these issues. Because, really, without a firm grasp on these issues, how we can expect to advocate effectively for ourselves and our loved ones?





On a related note, I present to you ARCH's analysis of the recent Supreme Court of Canada decision in Cuthbertson v. Rasouli, 2013 SCC 53.

In Cuthberton, the SCC was asked to examine the process that the law requires when an incapable person is unable to provide consent or refusal in situations involving life support.  Decided under Ontario's Health Care Consent Act, the Court concluded that “treatment” under this Act extended to withdrawal of life support, contrary to the arguments of the doctors.

The Pros and Cons Power of Guardianship

I've written extensively in the past about the various options open to parents to manage their legal relationship with their adult challenged children.

For some families, a power of attorney and personal directive might be the answer. For other families, it won't. For some families, guardianship will be the only sensible option.

I've also written on some of the reasons why guardianship can be such a useful tool in the right circumstances -  for everything from

• being involved with the adult's medical care and having access to their medical records 

• to managing their assets (finances)  

• to the control it gives in dealing with third parties, such as various government departments and agencies on the adult's behalf.

Although all of the above obviously have great potential to be important in your adult child's life, today I would like to take a closer look at the last item listed above; namely, the control guardianship gives in dealing with third parties, such as various government agencies and departments.

Whether dealing with the Canada Revenue Agency around income tax or issues around the Disability Tax Credit, various financial institutions or financial planners as you manage your child's RDSP or Nova Scotia's own Department of Community Services (DCS) in regard to issues of "work placement" or "placement" of your adult child in a residential care facility, guardianship can be a very useful tool.

But guardianship can be particularly useful with regard to that latter item (dealing with DCS). Not only does having guardianship allow you to direct where your child lives and works, but it will allow you to be involved in ongoing care decisions with respect to such placements.

It's no secret that guardianship has, on more than one occasion, proven very valuable for parents who were initially refused access to information and records concerning their adult child who was living in a residential care facility. Both administrators and social workers often consider concerned parents to be nothing more than “busy bodies”.

However, once a guardianship order is obtained, such parents generally find that both  home administrators and social workers stop trying to do an end run around them. Sometimes, being granted access to information and records is enough. Other times, however, concerned parents with guardianship might decide to move their child to a different living situation where the child will be happier and their ongoing interest and involvement are appreciated and encouraged.

A very powerful tool, no?

And yet, the saga continues.

Guardianship ... In a Nutshell??

I have been getting a fair number of private emails on the guardianship issue recently, which is fine but which has also got me thinking (always a dangerous proposition) ... so I've decided that I might share a bit of what is fast starting to become my "standard answer".

I'm not sure how familiar you are with all the ins and outs of the guardianship issue but just ... it might well be a fair bit more challenging to get guardianship of the [higher functioning daughter] then it would be for your other daughter. I'm not suggesting that your one child doesn't require guardianship or that you shouldn't apply for it, just that obtaining guardianship (with or without the services of a lawyer) could be a fair bit trickier when it comes to our higher functioning kids.

Fist, I might suggest you read my posts regarding guardianship on my blawg (if you haven't already) ...

My other suggestion would be that you consider attending one of my presentations on the issues of guardianship, powers of attorney, personal directives and Henson Trusts (and if you are not familiar with Henson Trusts that is something you really need to know about when it comes to leaving any money for your daughters, in your Will or in any other form). I have been giving these for various disability organizations recently and you might find attending one of these free sessions helpful in clarifying your and your children's situation, including whether guardianship is the best option for both children or whether there might be some other legal tool available to accomplish what you need.

The next presentation I am giving is for the HACL (Halifax Ass. of Community Living) on January 29th at 1:00 in Halifax at the Keshen Goodman Library. They tend to run around 2 hours with me talking for about 1 1/2 hours and about 1/2 hour for questions. If you can't make that presentation, but are interested, I could let you know when I get a date for another one.

All that being said, if you are really comfortable that guardianship is what you want and need, I can offer you the Nova Scotia Legal Guardianship Kit, which I created to help parents, such as yourself, to obtain guardianship of their challenged children without having to incur the costs of retaining a lawyer. The cost of retaining a lawyer to bring a guardianship application can be very prohibitive for most families (I am hearing a range of $3,000 - $6,000) which is why I created the Kit. In many cases (especially those where the child is very low functioning), I believe it is something that parents could do on their own (if they are so inclined) if they had the necessary background knowledge.

The Kit provides all the precedent documents you would need to file with the Court, along with an explanation of what each document is and how to fill it out (giving as many different examples as possible) as well as explaining the how (process) and why of obtaining guardianship and what a person's obligations are once they have been granted guardianship. I am currently offering a hard copy of the Kit for $315 (which includes $15 shipping anywhere in the Province) and hope to eventually get set up so parents can download an electronic version, which will sell for $250.

I should mention that one other option that might be open to you (as opposed to either hiring a private lawyer or going it alone with the help of the Legal Guardianship Kit) is retaining a Legal Aid lawyer. You, personally, may or may not qualify financially for Legal Aid, but one possible way around that could be to have your child made the client. In your case, and I am thinking of your daughter with Aspergers - if she was agreeable to you obtaining guardianship and was considered competent enough to instruct a lawyer (and it's not a real high standard of competency to instruct a lawyer), that might be an option to consider. Then again, as long as you would be going to court to apply for guardianship of one child, you might feel that you might as well just do both. I go into a little more detail about the Legal Aid option in my presentations which is another reason that I would really recommend that you consider attending one.

....

PS As an aside, I feel you are very smart to try to move on whatever you decide to do as soon as quickly as possible now that your children are 19. I know some parents feel that there is no urgency as it is unlikely that anything bad would really happen or could go wrong, but I have seen two situations recently - one in which the parents were very happy that had applied for guardianship as soon as their daughter turned 19 when later that year they were dealing with Community Services on the issue of placement and one where the parents did not move quickly for guardianship and a total nightmare situation developed in which a family of very shady characters essentially took their son away from them and obtaining guardianship and protecting their son turned into a full-blown court battle - that have really driven home for me how important the issue really is.

And with regard to the question of the necessity of guardianship in order to open a RDSP …

Hard Copy Version of Nova Scotia Legal Guardianship Kit Now Available

Although I am still unable to offer the Nova Scotia Legal Guardianship Kit in the format I eventually intend (downloadable from a website), I am pleased to say that I am currently offering a hard copy version for sale.

Should you choose to order a hard copy version, the Nova Scotia Legal Guardianship Kit will come to you neatly and professionally organized in a sturdy binder and with exactly the same content as what will eventually be available online.

Want to learn more?

Future Planning for Your Child with Disabilities - Part I

When one starts seriously considering the options available for parents who don't have anyone to succeed them in caring for their child with a disability, it qiuckly becomes obvious that we are talking about some very big shoes to fill.

And since future planning (whether or not you have anyone to succeed you) can cover a range of topics, from guardianship to life insurance, Henson Wills and RDSPs, I have decided to break the subject up into a series of posts.

In this first post, we will look at issues of future planning surrounding the guardianship of an adult child with a disability.


Guardianship
The issue of future planning around the guardianship of an adult child is not one faced solely by the parent who has no one else to succeed them in caring for their child. In fact, if there truly was not one individual available who was willing to act as a successor to a parent, the guardianship issue really becomes moot. The chips will indeed fall where they may. But because the above request was what got me thinking around this issue, I have decided to include this discussion here.

If you have (or plan to) obtain guardianship of your disabled child, you might want to consider what will happen in that regard following your death.

Although, generally speaking, a guardianship will be terminated when the guardian dies, there are certain exceptions to consider:

1. If co-guardians have been appointed, the guardianship will continue under the surviving guardian.
2. If the court has appointed an "alternate" guardian, the alternate automatically takes over when the guardian dies and guardianship continues.

This leaves a parent with two possible alternatives in regards to long-term planning and guardianship; namely, to apply either with a co-guardian or an alternate guardian.*

Although co-guardians are often spouses, an older sibling might make a good alternate guardian, provided they are of the age of majority at the time of the original guardianship application. Proceeding in such a manner would give the older sibling additional time to mature while the parent acts as guardian but would then allow the sibling to step in at a later date when the parent dies.

Of course, an alternate guardian need not be a sibling of the incompetent person and a co-guardian need not be a spouse; either could, theoretically, be any other individual with some relationship to the incompetent adult.

If neither a co-guardian or alternate guardian has been appointed, the guardianship will terminate when the guardian dies, leaving the incompetent person without a guardian. And contrary to what some might think, no government agency will automatically step in to fill this void.

Unlike Nova Scotia, the guardianship legislation in Saskatchewan allows a guardian to nominate a successor in their Will and when the guardian dies, the nominee will assume the role of guardian without further court order. Provision is made that the nominee must immediately notify the Public Trustee of the guardian's passing and then apply to court within 6 months for confirmation of their appointment as guardian.

That approach is much preferable to the situation here in Nova Scotia where the legislation does not provide any way for the guardianship of an adult to automatically continue following the death of the guardian. 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 parent had.

However, if a parent with guardianship of their adult child was trying to plan ahead for their child's care after their passing, I might just make make the following suggestion. Please understand that I have no solid legal basis for what I am about to propose but I simply can't see any downside to proceeding this way and there's always a possibility it might just be beneficial.

The first thing I would suggest is that the parent find another individual who they feel would make a good guardian to their child in the event of their passing. Approach this individual and obtain their consent and commitment to apply to the court for guardianship of the adult child should the parent pass away.

Then (and this is the part of my proposal that has no support from the Incompetent Persons Act or anywhere else) I would suggest that the guardian include a clause in their Will setting out that on such and such a date they were appointed as guardian of their son or daughter and then identifying the other individual whom, upon their passing, they would wish to have appointed as guardian in their place. Such a clause would also include, in some detail perhaps, why, in their opinion, this named person would make a good guardian for their child.

Now, as I said, in Nova Scotia, there is no legal authority for the guardian of an adult to appoint another guardian in their Will, unlike the situation where a parent can appoint a guardian for their minor child after their passing. And, of course, even in the situation of the minor child, the court would always have the power to over-ride the parent's wishes and appoint another individual as guardian should someone contest the parent's nomination.

But I still can't see any downside to the guardian of the adult including such a provision in their Will, which the person whom they so named could then attach as an exhibit to their affidavit when they apply for guardianship. The named individual would still be required to go through the process of applying for guardianship, just as the initial guardian had, but, although the court is is no way bound to follow the wishes of the previous guardian, it might just be one more factor to tip the scale in favour of the court appointing this other individual as the new guardian. And, if nothing else, you can at least rest a little easier knowing that someone you trust has agreed to apply to be appointed as guardian of your adult child.

Just remember, though, that were a person to go to their lawyer with instructions that their Will be changed to include such a clause, they would no doubt immediately be advised that they had no power to nominate a successor guardian. In which case, the person would respond that yes, they were aware of that fact but thought it might just be worth the extra effort of advising the court of their thoughts on who would make a suitable successor guardian for their child.

The idea being that if the parent/guardian shows that they have given some considerable thought as to whom might make a good guardian for their adult child, the court might just give at least a little weight to their opinion on the matter.

Bringing The Baby Home .. At Long Last

For what it's worth (and in the disability community it's worth is certainly debatable), the Personal Directives Act comes into force today.

The "much awaited" regulations can be found here.
[Also for what they're worth.]

Health Minister Maureen MacDonald said the new legislation goes beyond instructions for health care.

She said people will be able to assign someone to make sure their wishes for personal needs such as recreation and hygiene are followed.

"It means that people, and particularly, I imagine, people who are older or persons with disabilities, with perhaps some kind of a condition that has a degenerative element, would have the security of knowing that how they wish to be treated will be respected."

And that, right there, would appear to be the critical thing.

For a person with a degenerative condition, this legislation could be very useful. And for seniors planning ahead, much as one would have a Power of Attorney as part of an estate plan, so too would it make sense to have some form of personal directive, both for health care and other issues.

Enter the Personal Directives Act.

Meaning it's probably a good piece of legislation. For what it is.

As long as no one confuses it with what it's not. As some surely will.

That being said, if you're looking for information as to exactly how the process works under the Act ...

As of Thursday, forms will be available through the Justice Department website or through Service Nova Scotia offices, said Health Department spokesman Ryan Van Horne.

There will be two forms, one to appoint a delegate and the other to outline details of expected care and treatment. A booklet explaining the act also will be available.

"The Personal Directives Act covers a wide range of things, including personal-care decisions," Van Horne said.

"For example, if you are admitted to a nursing home and you are a vegetarian, you could ensure that you get a vegetarian diet or that you got fresh air for an hour a day."

Well, let's hope the legislation is good for a little more than just maintaining your vegetarian diet in long-term care.

Which, of course, it is. I just couldn't resist the snark, it seeming like such a strange example to give.

And as to why exactly it's taken so long to actually become law, welcome to politics in Nova Scotia.

The act was passed in May 2008 after it was introduced by Cecil Clarke, who was then the justice minister in the Conservative government. MacDonald couldn’t say why it has taken almost two years for the act to take effect, but she said regulations had to be written and staff in health-care settings and elsewhere had to be trained in the new rules.

Van Horne said officials had hoped to bring the act into force last fall but it got sidelined by the H1N1 crisis.

Yeah, those regulations. They are, after all, both lengthy and substantial.

Well, we can, I suppose, chalk at least one thing up for our beleagured NDP government.

Practical Applications - The Irony of the Personal Directives Act

Facing significant potential problems with the use of a Power of Attorney for many individuals with disabilities, we now turn to the Nova Scotia's new Personal Directives Act, which we initially discussed here.

Might it be useful for our community?

Unfortunately, I'm afraid not.

The first major problem that needs to be pointed out is that the legislation is not yet proclaimed in force. Meaning that, from a legal point of view, it doesn't actually exist. A giant legal tease if you will - it's here. But it isn't. Now you see it. Now you don't.

And no, I have no inside knowledge as to when (or even if) it will be proclaimed. Perhaps something to contact your MLA about should you feel the need to put an end to the shenanigans.

Putting aside that little inconvenience, the question remains - is a "personal directive" a possibility that could be used to avoid guardianship?

The as-yet-unproclaimed legislation would allow a "person with capacity" to make a personal directive setting out instructions or an expression of their values, beliefs and wishes about future personal-care decisions to be made on their behalf and authorizing one or more persons to "act as delegate" to make decisions concerning their personal care on their behalf.

"Personal care” is defined as including, but not being limited to, "health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services and any other personal matter that is prescribed by the regulations". Those would be the regulations which are not yet in existence. Seeing as how the legislation itself remains in some sort of legal purgatory.

Putting that litle issue aside (yet again), I'm afraid I'm to be the bearer of two more pieces of bad news.

First, although the Personal Directive Act allows for combining a personal directive with an enduring power of attorney in a single document [sec. 23], a personal directive does not and cannot apply to financial issues. The situation remains that the only way to nominate a person to act on another's behalf in regard to financial matters in Nova Scotia (outside of guardianship) is through the use of a Power of Attorney.

The second difficulty, at least indirectly, involves the level of competency required in order for a person to execute a valid personal directive.

For the purposes of the Personal Directives Act, "capacity" is defined as "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision". [sec. 2(a)]

Turning our attention to our previous discussion on capacity in the context of Powers of Attorney, you might recall this statement:

Capacity and incapacity (and competency and incompetency) are legal concepts. And they are task specific. For example, the minimum level of competency required for a person to execute a valid Will (which we call testamentary capacity) is lower than that required for many other legal acts. In the context of making a Will, what is essential is whether the person has the ability to understand the information relevant to making the pertinent decision and the ability to appreciate the reasonably foreseeable consequences of that decision (or lack of decision).

So although I hesitate to commit to an opinion on this issue at the moment, it certainly would appear, based on the wording of the legislation, that the standard of competency required to execute a personal directive is very similar to that required in order to execute a valid Will.

And given that at least a segment of the population with intellectual challenges who would not have the higher level of competency required to enter into a contract, for example, could likely still execute a valid Will, the legislation would appear to provide an avenue for those individuals to nominate a person to make personal care decisions for them.

Good news, says you.

Maybe, says I.

There's just for one little problem. Caused by sections 9 and 12 of the Act.

9 A personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.

12 (1) A personal directive has no effect (a) in respect of a personal-care decision, whenever the maker has capacity; (b) on the maker's death; (c) when the personal directive is revoked by a maker who has capacity and makes the revocation in writing, executed in the same way as the personal directive; or (d) on a determination by the court that the personal directive ceases to have effect.

We now find that our although our hypothetically challenged person may have the capacity to execute a valid personal directive (if they have "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision"), their personal directive will only go into effect when they lack the capacity to make a personal care decision. And, just to put a cherry on it, their personal directive will have no effect whenever they have such capacity. Which capacity, we've already ascertained, they must clearly have had in order to execute a personal directive in the first place.

Leaving us, I would suggest, with a perfectly valid personal directive which will, unfortunately, remain useless (despite its validity) unless and until the maker becomes (even) more incapacitated.

Oh, the irony.

It kind of reminds me of having a Personal Directives Act (which, I must say, will be a very useful and much-needed piece of legislation for very many individuals) that isn't. For the moment, anyway.

Guardianship Precedents ... A Work in Progress

Kathleen, in comments, notes that she was granted legal guardianship of her severely developmentally delayed son in late November.

I had decided to be my own lawyer, which meant learning about all the paper work, making sure it was all filled out properly, and going to court. The court appearance was almost anti-climactic - the judge had been given all the paper work a week prior, so he called us up first, smiled, said, everything looks fine to me, I'll write you up the guardianship order and you can pick it up this afternoon. Wow! It cost us the court charges which was about $135 and my time.

So, you might wonder why we chose this route. First,this way, there is no ambivalence about who his guardian is. Disagreements may arise around medical procedures; when and if he ever goes into a "group home" we will still have some input into his life; if we want to get him a passport; dealing with Revenue Canada; etc. But most importantly, as he does not understand implications of his actions, or anything to do with legal, financial, or other issues, we his parents, who know him better than anyone, figure that we are in the best position to make decisions on his behalf as we have his best interests at heart.

For some time now, I have been mulling over the idea of creating some sort of guardianship kit for parents of adult children with disabilities. My thinking being that it would be much like those Legal Will kits that you hear advertised on the TV and radio.

With that idea in mind (and Kathleen and her husband as willing 'guinea pigs', so to speak), we have proven that it can, indeed, be done. Not for $5,000 or $6,000 in legal fees and not as a long and complicated process (as so many claim) but as a relatively parent-friendly experience. Sure, Kathleen had a little help from her friends, but don't we all need that?

I have previously set out (and now updated) the process to be followed and the documents required for a guardianship application, the one change that has occurred since that post first being written is that Nova Scotia's new Civil Procedure Rules require only one court appearance (as opposed to the previous two appearances). Which should also make it significantly more parent-friendly.

So now that I've proven to myself that it can be done (with a bit of one-on-one coaching), it's time to get down to work on a package of precedent documents.

And although the project may take a while to complete, life being what it is (and I have yet to decide in what format and in what manner such a package will be made available ), rest assured, it most definitely is on my to-do list.

If I can find a way to make it workable, I will.

The Need to Reform the Law of Guardianship

Many have a problem with the whole concept of guardianship. It's too intrusive. It doesn't recognize the rights of the disabled person to make choices in their own lives. It's expensive, complicated and takes a long time.

In fact, over a decade ago, the Nova Scotia Law Reform Commission advocated for dramatic change to this Proince's gaurdianship law, noting problems with the law's

• offensive language;
• all or nothing approach;
• emphasis on property;
• lack of monitoring of guardians;
• lack of respect and autonomy; and
• Charter violations

And to a large extent, I agree with these concerns.

As we discussed previously, the assessment of "competency" under our law is also an all-or-nothing evaluation. People are labelled as "competent" or "incompetent", without recognizing that people may be "competent" in some decision-making areas and not in others. As well, people may be "incompetent" only some of the time. There are, of course, some examples of people who are totally unable to decide, such as a person in a permanent coma, but this is quite rare and most decision-making limitations are partial.

In view of the principles of autonomy, respect and equality, this all-or-nothing approach leaves a lot to be desired. And it's important to realize that not all provinces have taken the all-or-nothing approach to guardianship that Nova Scotia has.

Under the Canadian Charter of Rights and Freedoms, all adults have "the right to life, liberty and security of the person". The appointment of a guardian results in the loss of our fundamental rights and freedoms, particularly the right to liberty. This means that the Charter gives people the right to the least restrictive alternative when there may be a denial of their freedoms, such as when a guardianship application occurs.

The Charter requires some basic procedural safeguards which should include the following:

• a fair and impartial hearing during which the person is entitled to full legal rights including the right to be notified of an application and hearing;
• the right to be represented at the hearing;
• the right to be heard at the hearing;
• the right to an interpreter;
• the right to call, examine and cross-examine witnesses;
• the right to review documents that are submitted to the court;
• the right to secure an adjournment of proceedings;
• the right to be informed of the outcome and the reasons for a decision; and
• the right to an appeal.

It's important to recognize that although many of these safeguards are currently available under the Incompetent Persons Act, it is often extremely difficult for a person subject to a guardianship application to make use of them for a number of reasons such as lack of knowledge about the legal system, a lack of support and assistance, as well as an inadequacy of financial assistance to hire a lawyer.

Also, adults should have the right to "procedural fairness" before having a guardian appointed. The inadequacy of procedural safeguards can be an area of concern with the way in which the Incompetent Persons Act is applied.

An adult may have difficulty opposing a guardianship application, because the proceedings are often seem as complex, intimidating and expensive (although I question whether this perception is always accurate, but more on that in another post).

Hearings themselves may also be lacking in terms of procedural fairness. The adult is usually not present or represented by a lawyer. Medical evidence is often accepted without question, and medical practitioners are also absent from court.

Once a guardian has been appointed, the adult will have difficulty challenging the order by way of appeal or by seeking to revoke the guardianship order. Where a person no longer has control over his or her affairs, he or she may also lose the right to start a legal action and the "ability" to instruct and pay for a lawyer.

In a later post, we will look both at some of the other options available to guardianship that aren't currently available in Nova Scotia as well as what the Law Reform Commission, itself, proposed for a new Adult Guardianship Act in 1995.

We will also tackle that concern of just how expensive, complex and time-consuming a guardianship action is.

'But I Still Don't Agree With Gaurdianship ...

You've read the various reasons why I might recommend you consider guardianship for your adult child with a significant mental disability. And what I've had to say about how and why other less restrictive options might be limited or inapplicable. And yet you still don't agree with guardianship (from a philosophical point of view). And not only that, but you're not so sure your adult child would legally qualify for it anyway.

Which would leave you (and them) exactly where?

It's true. The effect of an order made under the Incompetent Persons Act does severely restrict the rights of the person who is the subject of the order. Most guardianship orders restrict the following rights:

• the right to deal with her or his 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.

Legally, it is, indeed, an all-or-nothing approach.

Unfortunately, the Act does not allow for the separate appointment of a guardian of the person and a guardian of the estate. And there are usually no limits to the guardianship order so that most guardians have full powers to make most, if not all, decisions for the adult.

BUT.

Other than enduring powers of attorney (POA) and personal care directives (with their many limitations, not the least of which is the issue of the capacity to enter into one), what other options are there in Nova Scotia?

Sure, British Columbia has legislation allowing everyone (even if they can't manage their own affairs) 19 years of age and over to make a document called a "Representation Agreement", which permits a person to create a legal Plan giving authority to someone else when a person needs assistance managing their affairs. Which can cover financial and legal matters AND health and personal care matters. But there's nothing comparable in Nova Scotia.

And although I most wholeheartedly agree that the law of guardianship needs reforming in Nova Scotia (and will post more on that very topic later), the bottom line is that at the moment it's all we have in Nova Scotia.

And consider this, after you hold a POA and a personal care directive in your hands, haven't you effectively taken away just as much power and rights from your adult child as if by guardianship?

But no, you respond. I don't have to exercise all those rights all of the time. I can let him do what he is able and only step in where necessary.

Indeed. Same as with guardianship.

Because from a practical point of view, nobody is going to know that a person has a guardian unless they are explicitly told. Meaning that if your son or daughter walks into a polling station with their voter registration card that came in the mail, is anybody really going to know that they have a guardian? And that that means they cannot vote? Or are they just going to smile, direct them to the proper booth and explain how to fill in, fold and return the card?

Under the Nova Scotia Civil Procedure Rules, a person "who is not capable of managing their affairs", must start, defend, contest and respond to a civil proceeding by either a named litigation guardian or a guardian under the Guardianship Act (which applies to children) or the Incompetent Persons Act. So I can't see how having a guardian appointed really takes away too many rights there.

Since marriage is considered a civil contract a person for whom a guardian has been appointed cannot marry since they will not be considered capable of entering into a contact. Although that would be equally true of everyone considered legally incompetent, whether or not a guardian has been appointed.

However, when you consider the fact that every province in Canada, including Nova Scotia, allows for teenage marriage, provided there is parental, guardian or court consent, I have to question why a person who has a guardian appointed could not marry as long as they had their guardian's or the court's consent. And if you have been allowed to marry then ... yeah, you're going to be allowed to get divorced.

And when it comes to medical treatment, if you're the guardian then doesn't that mean that if you consider it appropriate you can allow the person make their own decision about whether or not to accept a particular medical treatment?

I'm just saying ...

... And I Probably Couldn't Get It Anyway'

I've heard a few parents comment that they probably couldn't get guardianship of their adult child because the child was too high functioning. I've given this matter some considerable thought and from what I've seen I am rapidly coming to the conclusion that as long as you have two doctors willing to back you up, you most likely will be successful in getting guardianship even if your child is fairly high-functioning.

I expect to be in the same position myself in a few years with my oldest daughter. She is very verbal and very capable of making her wishes known but as far as I'm concerned (and as her neurologist agrees) the problem is that she doesn't and won't have the ability to manage her money, keep herself safe and live as independently as she would like.

And I don't think it can ever really hurt to try for guardianship if, in your opinion as the parent looking out for your child's best interests, it is is warranted. If you can get two doctors onside and as long as no one heads to court to object, I think chances are good you will be successful. And, if you're not, I don't see how you're really in any worse position than you were before.

And even if you have only one doctor who advises you that you are well-advised to seek guardianship (it seems like it often often happens that while a specialist might agree, your family doctor won't or it might be that your child only sees one doctor), that doesn't mean it's a hopeless proposition.

Sometimes a family doctor will 'change their tune', so to speak, if they are presented with a copy of the specialist physician's completed affidavit and will then agree to provide their own. Even though they initially refused.

Or, if not, you could always explain the situation to the one doctor you do have onside and ask if they could refer you to another doctor who might be willing to assist. Of course, that new doctor would have to meet with you and your child in order to do an assessment. But that likely wouldn't involve much (if any) more than one visit.

I was actually surprised by the response of our pediatric neurologist when I first broached the subject with him, asking if he would, when the time came, be willing to support me in an application for guardianship of my child. Yes, he would. But then he added, much to my surprise, that, in his view, guardianship applications are a colossal waste of time and money when it comes to young adults who very severely challenged because "no one is going to do anything without checking with Mom and Dad first". But that, in the case of young adults like my daughter, who will be so much more involved and active in the community, these are the ones for whom guardianship is essential to keep them safe.

And although I might well disagree with his assessment in the case of those who are very severely challenged, I most certainly do agree that we need something in place to protect our higher functioning children. And, at the moment, the only option on the table is guardianship.

I do think the one thing to be careful about with a high-functioning individual, though, is to how you present the guardianship application to them. To make sure you present it so they will see it as something positive ("your parents will always be here to help you with those things you find difficult") as opposed to something negative ("you're not able to do this, I won't allow you do do that") and thus be less likely to voice objections to the idea.

Practical Applications: Limitations on Powers of Attorney

Continuing our discussion of the issues involved in a person with a disability executing a Power of Attorney (POA) in favour of the parent instead of the parent having to go through the guardianship process, I offer a few more thoughts on the limitations of a POA.

First of all, as was mentioned in passing before, it must be remembered that if a person is capable of granting a legally valid POA, they are equally capable of revoking it. Which means that you, as the parent, need to be beware that down the road, your child would be allowed to legally change his mind and revoke the POA. As long as you recognize and are prepared for that possibility, then it's okay.

BUT. Big BUT here, before you think you are comfortable with that possibility, that either it wouldn't happen or you would be able to sit down and convince your child not to do this, consider this.

Our adult children who are relatively high functioning, who might be able to get away with signing a POA, are also the ones at the most risk of being taken advantage of others. Because they are higher functioning, they will be out in the more community more, involved in some form of work and leisure activities, and they could be a prime target for unscrupulous individuals who want to take advantage of them. Who could, perhaps, convince them that their parents are interfering with their Independence, are treating them like a child and not an adult, and that they are more than capable of handling their own life and business. And if that person happens to be of the opposite sex, you can throw a dose of hormones into the mix. Which raises the risk of your POA being revoked and your adult child "managing his affairs" with the help of a not quite so honest 'friend'.

Secondly, since a POA only covers financial matters, if a person were to go this route, they need to consider whether they child should sign some form of personal directive, as well. [See this discussion as to the distinction between what is authorized under a POA as opposed to a personal care directive. And you can find the Personal Directives Act here.] This would allow the parent to make decisions for their child around issues of medical and personal care. Although keep in mind, that the same standard of competency as would be required to execute a POA (whatever that might ultimately be) would also be required to execute a valid personal directive.

My last thought (for today anyway) on the possible limitations of a POA, involve the Registered Disability Savings Plan (RDSP). If one of the reasons you want a POA in order to open a RDSP for your adult son or daughter, remember this. Since this wouldn't be a guardianship situation, that means the RDSP will be opened in the name of the adult child. Which raises the question of whether a person holding a POA can just walk into a financial institution and open a RDSP on behalf of another. Perhaps they can.

Although I would hope that a financial institution might require a bit more than that. Like actually wanting to see (or at least speak with) the person with the disability. Which, if that were required, would be fine as long as the disabled person appeared high functioning enough to not cause the bank any concerns. But if they come across as too challenged, a savvy bank rep is likely going to question both their competency to open the RDSP and the validity of your POA.

As I said, I'm not sure how much of an issue this might actually be in practice. Particularly as I hear some anecdotes of how some financial institutions are handling (or not handling) the process of opening RDSPs. Still, I think it's something to keep in mind.

That being said, I would be remiss not to point out that the whole issue of the need for guardianship around RDSPs is being looked at by both the federal government and PLAN with the intent of to eventually come up with a solution that would allow parents to be plan-holders for their adult non-contractually-competent children. And that, in the interim, at least some banks are accepting the argument that if the person has assigned the parent to be his representative for dealing with the Canada Revenue Agency (a process easily done), that will qualify as "a guardian, tutor, or curator of the beneficiary, or an individual who is legally authorized to act for the beneficiary". Which, it appears that at least some Canada Revenue Agency representatives appear willing to accept this situation for the moment.

None of which the lawyerly part of me would recommend. That some banks are willing to fudge the rules at the moment and that the Canada Revenue Agency appears willing to turn a blind eye to that just doesn't inspire confidence in me. Even though I do believe that the Canada Revenue Agency is committed to the RDSP and making it work and are most likely acting in good faith in what they are doing, it still makes me nervous. But then again, I could be just a little anal. It's most likely the lawyer part of me.

~ With thanks to Audrey, who inspired much of this post with her comments ~

Practical Applications - The Standard of Competency Required for a Power of Attorney

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.

READ MORE

Beating An [Almost] Dead Horse

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

1. What options, other than guardianship, are available in Nova Scotia to transfer or support the decision-making power of an adult with a disability
2. What rights, exactly, are "taken away" from the person with a disability if guardianship is granted and what are the practical effects of this
3. In the case of higher functioning adults, whether guardianship is
• a legally-available option; or
• even necessary
4. 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
5. What other provinces have done around the issue of guardianship for persons with disabilities
6. 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.

An Absolute *Must Read*

The good people at PLAN have just come out with a new bulletin entitled "Making Sound Decisions". And YOU, dear reader, absolutely, MUST read it.

No, I don't think I'm usually this pushy but in this case, I believe I must be.

The PLAN Bulletin does an excellent job of covering the waterfront on many of the issues we've been discussing recently, such as guardianship, supported decision-making and powers of attorney, particularly in the context of the usefulness of RDSPs for the disability community.

So, just in case you're not quite ready to take a peek, let me whet your appetite:

• A Delicate Balancing Act ~ looks at the transfer of autonomy and control from parents to their children over time and how we all need support when it comes to making important decisions in our lives
• From Coast to Coast: A Patchwork of Rules ~ discusses the different 'tools' available across the country to "support" a person in their decision-making (including a Cross Country Scan which clearly shows in chart form what is available in each province)
• Maria's Dilemma: Choosing A Trustee ~ sets out the dilemma faced (and decisions made) by one mother as she set up discretionary trusts in her Will for her three children
• Power of Attorney for Property ~ explains what, exactly, powers of attorney are, the criteria for setting one up and the authorities and duties of the attorney appointed, among other issues
• The Representation Agreement: A Model for Canada ~ explains what Representation Agreements (unfortunately currently only available in British Columbia and the Yukon) are and how to use them
• Making Sound Decisions with Support - sets out one family's positive experience with a Representation Agreement
• Guardianship: A Last Resort ~ explains the concept of guardianship as well as when and where it might be needed and sets out three myths about guardianship (one being that parents automatically continue as legal guardians when their sons and daughters with intellectual impairments become adults) and PLAN's reservations on the issue of guardianship
• Setting A New Direction ~ takes a look at the United Nations Conventions on the Rights of Persons with Disabilities [which, by the way, Canada has still not ratified]
• Managing A RDSP: Time for Guardianship Reform? ~ looks at both the provincial and federal legislative changes which could be made so that guardianship would no longer be required in order for a parent to open a RDSP for a disabled adult who is not considered legally competent; and
• The RDSP: A Great Opportunity Just Out of Reach ~ sets out the thinking of one family who chose to forgo the financial opportunities inherent in a RDSP if it meant obtaining guardianship of their adult son

So thanks again to Jack and Doug and all the good people at PLAN who worked at putting this Bulletin together. It should prove invaluable for many families to have all this information available in one place.

Bravo Zulu, guys.