Adult Guardianship Representation in Nova Scotia [Part I]

Adult guardianship has been a very popular topic since this blawg first came into being. But the lay of the land has completely changed as of 12:01 a.m. on December 28, 2017.

Why is that, you ask?

Quite simply, at that time,  a new piece of legislation, the Adult Capacity and Decision-Making Act, came into force. This new legislation has significantly changed the scope, extent and meaning of guardianship in Nova Scotia.

How's that, you ask?

First off,  not only does the word "guardian" not appear in the legislation's title, but you won't find it or the tern "incompetent person" anywhere in the text of the legislation, either. Meaning that those of us who were guardians a mere few days ago were magically transformed into "representatives" on the morning of December 29th.

Although I believe that change in terminology is important (will anyone even know what you're talking about when you say you are someone's representative?), it is only the most inconsequential of the changes this legislation brings.

Although the  government engaged in a consultation process (both prior to and after drafting the new legislation), many felt the process was lacking and should have been more extensive, so as to reach all stakeholders (meaning all  the individuals working with and, more importantly, affected by the legislation).

I believe some of these concerns are legitimate. Personally, although heavily involved in the second round of consultation process (and that, really, only by accident), it troubles me to say that I saw very few positive changes come from that process.

I am only one of many who have publicly expressed their concerns with the new legislation; however, I must admit that I find it somewhat ironic that my concerns tend to be close to the polar opposite of those expressed by many others.

But before we go on to examine the new legislation (and my concerns) in more detail, I would like to take a look back.

Some Thoughts on the Proposed Adult Capacity and Decision-Making Act

As I have yet to make good on my promise to share my thoughts on Nova Scotia's proposed new adult guardianship legislation, the Adult Capacity and Decision-Making Act, while you wait, I humbly offer you my interview on CBC's Main Street Program.

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.

Let's Talk Landon Webb Guardianship, Part V

You might recall a post from back in February of this year, where I questioned whether or not that was a good time for a family to pursue legal guardianship, given what was on the horizon with the Landon Webb case. I know many of you are now well aware as to exactly how Landon's case ended.

For several years, in the presentations I have given around the Province, I have repeatedly called for a reform of the Incompetent Persons Act, noting that it is an "all or nothing, one size most definitely does not fit all" sort of deal. Apparently the court agreed.

[22] The Incompetent Persons Act takes an all or nothing approach. It allows for no nuance. It does not allow a court to tailor a guardianship order so that a person subject to that order can retain the ability to make decisions in respect of those areas in which they are capable.

Just to be clear, there were absolutely no surprises here with respect to the court's finding that the legislation, as written, is unconstitutional. Not only did Landon's parents acknowledge and agree that the Act was unconstitutional, but, from almost the beginning of this court challenge, the Department of Justice had taken the position that it would not oppose the constitutional challenge and was committed to reviewing the current Act with a view to improving it. As noted in the Webb decision, that was a "remarkable thing", as governments rarely concede that legislation is unconstitutional. In the words of the court, "It happens only where there is a clear and compelling case, such as this".

Leaving us with the question ... What now?

First, let's take a look at what did not happen; what the decision in the Webb case does not mean. To put it simply, all current guardianship orders under the Incompetent Persons Act remain valid and the decision regarding the constitutionality of the Incompetent Persons Act will not affect my current Guardianship Orders.

Now that we know what didn't happen, let's take a look at what did.

Yes, Landon successfully challenged the constitutionality of the Incompetent Persons Act. To put it simply, on June 28, 2016 (as expected) the court found certain provisions of the legislation unconstitutional, but granted one year for the Act to be updated.As noted above, all orders remain valid during this period.

The government tells us that it is currently researching and consulting, with a view to crafting a new law on substituted decision making. Which shouldn't be too difficult to do, considering the help they previously ignored were given. In fact, you might recall that the Law Reform Commission was kind enough to draft an entirely new piece of legislation for the government in 1995.

Be that as it may,this means that applications can still be brought under the current legislation until either a new law is brought in or the one-year time period has expired (which would be June 27, 2017).In addition, the process of review that always existed under the Incompetent Persons Act (contrary to what some would have you think) is still available.

Now for the really important part for your family:

Let's Talk Landon WebbGuardianship ~ Part IV

Long, long ago in a galaxy far, far away (in other words, before I had a child with a disability), I was involved with grassroots political lobbying for children in third world countries. Doing that work, I became very attached to a quote from Stephen Lewis, then Canada's Ambassador to the United Nations, to the effect that eventually the day would come would societies would be judged not by their industrial or economic output, but by how they treated their most vulnerable citizens.

I approach the issue of supported decision making as both a parent and a disability lawyer. I've read a fair bit of what Michael Bach, (Vice President of the CACL) and others have written on exactly how supported decision making would work. I found it fascinating. But, quite frankly, I also found some of it quite scary.

I was particularly struck by a response given to a statement made by the Ontario Select Committee on Mental Health and Addictions that the "right to autonomy must be balanced with the right to be well". Part of CACL's response to that statement was that there is no recognized right to be well in domestic or international law.

Is this the path we want to go down? Really?

At any rate, I beg to differ - Section 7 of the Canadian Charter of Rights and Freedoms guarantees all of us the right to "life, liberty and security of the person". I would have no trouble arguing that that includes a right to be well. I recall listening to an amazing presentation by Dr. Condoluci at a CACL Conference a few years back, where he spoke of research showing that cross-culturally parents want their children to be healthy, happy and have longevity. I rest my case. For now anyway.

Please understand. I love the concept of supported decision making. In the abstract. But my concern is exactly how we are to balance the right to autonomy (that you, I and everyone else demands and deserves) with the duty to protect where decision-making abilities are limited, needed supports are lacking or people are vulnerable to abuse or neglect.

I am the first to admit that there are huge problems with the other substitute decision making options available, particularly guardianship. You might just have been living under a rock if you haven't come to realize over the course of the last several months that Nova Scotia has what is likely the most archaic, restrictive guardianship system in the country.

Sadly, we currently have a system that labels individuals as competent or incompetent without recognizing that people can be competent in some matters and less so in others. It's a very blunt instrument that doesn't allow for supported decision making and reinforces the perception that people with intellectual disabilities don't have capacity. It's a winner take all, one size most definitely doesn't fit all, take it or leave it kind of system. Frankly, it leaves a LOT to be desired. I am happy to say that, fortunately, that should soon change ("soon" being a relative term, of course).

As I said, I approach the issue of supported decision making from the perspective of both a parent and a lawyer. And the real question for me is whether and how much it is acceptable for society to act to protect individuals with intellectual disabilities.

Is This the Right Time to Apply for Guardianship?

Picking up on our ongoing conversation about guardianship, I have little doubt that the law concerning adult guardianship in the Province is about to change. Landon Webb has challenged the constitutionality of the Incompetent Persons Act and, although no one can say for sure what the outcome will be, I believe it is highly likely that we will end up with a new piece of legislation governing adult guardianship. Which, actually, will most likely be a very good thing.

However, until either that new legislation materializes or the status quo is confirmed, a person might want to think carefully about when might be the best time to bring a guardianship application in their particular circumstances.

This is just my take, but, given the media play that Landon’s situation has received, I think that (with the exception of the clearest cases) there is a good chance that the courts could be a bit hesitant to grant an adult guardianship order until a decision is made in the Webb case.

In the case of a very low functioning adult, there is probably no reason to hesitate to bring such an application. However, when it comes to higher functioning adults, absent some sort of emergency reason to bring an application RIGHT NOW, it might be best to wait until we see how everything shakes out.

With respect to the Nova Scotia Legal Guardianship Kit, should the law change, it may well be necessary to make corresponding changes to the Guardianship Kit to comply with the new law. I can assure you, however, that should that occur, it is absolutely my intent to update the Guardianship Kit and continue to make it available as an option for families in the Province.

Let's Talk Landon Webb Guardianship ~ Part III

Does Nova Scotia's guardianship legislation needs a MAJOR overhaul? Absolutely.

Is it appropriate to throw out the baby with the bathwater and remove the option of guardianship completely from provincial law? While some in the disability community might respond in the affirmative to that question, you will find me on the side of those strongly shaking their heads, NO.

I'm not naive. I realize that many take the view that guardianship should never be a legal option because it “discriminates”against challenged individuals and takes away their right to make choices
for themselves.

In fact, the Canadian Association of Community Living (CACL) has characterized guardianship as "an ancient mechanism that was constructed without consulting people with disabilities" and takes the position that "supported decision-making" is not only preferable to guardianship, but given that "guardianship laws assume that some people do not have the capacity to make legally binding decisions" has invited us to "adopt a paradigm shift in which everyone has an equal legal capacity, without distinction based on disability."


What is Supported Decision Making (SDM)?
SDM means that a person can accept help in making decisions without relinquishing the right to make those decisions. With SDM, freedom of choice is never violated. The wisdom of a person’s choices is not challenged, allowing everyone the dignity of risk.

In theory, SDM helps a person to understand information and make decisions based on his or her own preferences. The feeling is that while guardianship laws theoretically protect people with disabilities from abuse, in practice they open the door to abuse. Some believe that guardianship facilitates institutionalization; the guardian can easily give consent even when the person opposes being institutionalized. One decision by the authorities and a person loses the right to decide where to live, loses the right to vote, the right to choose who to marry, the right to start a business. This results in living in a humiliating and degrading way.

We are told that the fact that others might view a decision as foolish or ill-advised doesn't mean a person in incompetent. The courts speak of the right to be KNOWINGLY foolish and the right to VOLUNTARILY assume risks; some case law speaks of the right to live life on the edge. Which is all well and good.

Let me say that I agree with a lot of the concerns set out above. In fact, speaking only as a parent, I love the concept of SDM in the abstract. My adult child being given that the information she needs to make responsible adult decisions.

What's not to love?

* In Part IV, I will explain my concerns with SDM in the real world.

Let's Talk Landon Webb Guardianship ~ Part II

I must admit that this was most definitely not what I had in mind for Part II of this series, as I had have no intention of making any further comment on Landon Webb's personal situation, However, comments such as the below from the editorial in yesterday's Chronicle Herald simply cannot go unanswered.

We are hopeful that the courts will rule that, no matter what Mr. Webb’s disability, he wants to live in society and should have the right to do so. No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community.

Really?

No one should be locked up because he or she is disabled or needs appropriate support in order to live successfully in the community?

I can see thousands of individuals with disabilities and their family members across the province shaking their heads in disbelief ... wondering why in the world this thought had not occurred to them, too.

At any rate, I sincerely hope both the Nova Scotia Human Rights Commission and Joe Q. Public can keep that concept in firmly in mind when the human rights complaint brought by three residents of Emerald Hall is heard later this year.

Yes, this is the very same human rights complaint where individuals had been forced to live in a psychiatric hospital for up to 13 years (with no end in sight) for the simple reason that the Department of Community Services either couldn't or wouldn't provide them with placement in the community.

The very same complaint where the investigation conducted on behalf of the Human Rights Commission found that “the existence of discrimination cannot be denied", yet, incredulously  the investigator recommended that the complaint be dismissed. That would have been the end of the matter had the complainants' lawyers not fought on and brought the matter before the Commission for a review, arguing successfully that it should go forward to a hearing.

News Flash #1: Individuals with disabilities who cannot live in the community without support need someone to provide them that support.

News Flash #2: Caregivers don't work for free - someone has to pay them a living wage.

And just who would that "someone" be? For the uninitiated, it would be the provincial government in the form of the Department of Community Service's Disability Support Program.

But what happens if you are forced to rely on a system where the wait list for residential placement currently sits at over 1000 people?

What are individuals with disabilities and their families to do when they want nothing more than to live in the community but simply can't move out of their family home, Emerald Hall or an institution because the Dept of Community Services won't provide the funding for the type of support the person
requires to be successful in the community?

Could there be anything the public could possibly do to help?

Oh, wait. I know. One really helpful move would be to bash an individual's family members for the continuation of institutions in Nova Scotia.

I have yet to meet anyone in the disability community who wants to see their family member housed in an institution. Have you?

* You might have noticed that the sarcasm was a bit thick in this post. That's something I generally work very hard to avoid, but sometimes a person simply has to use whatever tools are at their disposal to make people see that a spade really is a spade.

** Part III will, as promised, will examine take a look at the alternative being presented to guardianship at the moment - supported decision-making.

Let's Talk Landon Webb Guardianship ~ Part I

Oh, the irony.

Those who know me at all (or have been to any of my presentations) know how I feel about Nova Scotia's guardianship legislation, the Incompetent Persons Act. To call it old or out-of-date would be more than flattering and undeserved. In fact, antiquated would be a much better word.  I can say, without a shadow of a doubt, that nearly every other province in Canada does a better job than Nova Scotia with their guardianship legislation.

You see, although most other provinces provide for the appointment of a guardian of the person (to make personal care
decisions for the adult) and a guardian of the estate (to make financial decisions for the adult), in Nova Scotia full powers for both personal and financial decisions are given to the guardian, even if the adult is only in need of one type of decision-making assistance. It’s an all or nothing, one size most definitely does not fit all, take it or leave it kind of deal.

There's nothing new here; in fact, this is very old news. As far back as 1993, the Law Reform Commission of Nova Scotia publicly recognized that the Incompetent Persons Act was no longer appropriate and suggested that a new law be passed that would reflect certain fundamental principles, like

• not imposing guardianship simply because a person makes a decision that others do not understand or agree with;
• presuming everyone to be competent to make their own decisions unless it is proven they are not; 
• inquiring whether other less restrictive alternatives have been exhausted;
• focusing on the adult’s abilities, allowing them to participate in decision-making as fully as possible in as many areas as possible; and
• taking into account the wishes of the adult (with the court deciding how much weight, in the circumstances, should be given to those wishes).

Two years later the Law Reform Commission actually drafted a new proposed Adult Guardianship Act. The heavy lifting was done for the government of the day. The legislation had been drafted. Cue the applause.

However, instead of a new Act, in 2007 the legislation was amended to remove terms like “lunatics” and “insane persons” and replace them with the somewhat more politically correct “incompetent person”, which some might find, in and of itself,to be rather ironic.

And yet, that is not the irony I am referring to.

Guardianhip - A Middle Ground

I am pleased to say that one of the things returning to the practice of law has done is open up a lot more options for how I can be of benefit to the disability community. There is one particular option in this regard that I would like to highlight today.

If you've been reading this blawg for very long, then you are no doubt quite familiar with the Nova Scotia Legal Guardianship Kit.

The great thing about the Kit is that it gives families who have decided that guardianship is the best choice for their loved one the opportunity to obtain that peace of mind without incurring the high costs traditionally involved with retaining a lawyer. And it gives me a very good feeling to know that that option has been opened up to families for whom finances might otherwise be a barrier.

However, I realize that many continue to struggle with taking that plunge into the legal world, with taking on the commitment of preparing their own documents and appearing in court on their own without the services of a lawyer. I am happy to say that there is now another option I can offer for families in such a position.

In addition to the "either/or" options of retaining a lawyer or bringing a guardianship application on your own, I can now offer you a third option. In fact, some families have already successfully taken advantage of this third option. It combines the very best of the previous options in that allows you to save a significant amount of money while still having the services of a lawyer in reserve, so to speak, to use only as and if you need them.

What I am talking about is purchasing the NS Legal Guardianship Kit, doing the costly time and labour-intensive work of preparing the documents yourself (with the assistance of the Kit) and then hiring me on what we call a "limited scope representation", meaning using (and paying for) my services only if and when you feel you need them.

For some families that has meant preparing the documents themselves, but then having me review them before they are filed so they can walk into court confident that they have provided all the information the court requires to understand why guardianship is in the best interests of their family member.

For others, it might mean having me appear in court upon their behalf after they have completed the required paperwork.

And then there are those that fear that they might run into a few questions or concerns along the way as they are preparing the documents and need someone to run such potential issues by.

The beauty of this option is that the possibilities of just how much legal assistance (and in what areas and combinations) a family might require to complement the NS Legal Guardianship Kit are practically endless. It truly is individualized service, individualized to the particular needs of your family.

Perhaps it's time to coin a new acronym. ILS - Individualized Legal Services.

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 Best Laid Plans

I was really looking forward to doing a one-day workshop in Bedford in October - October 19th, to be
precise. I say "was" because at the moment it's not looking so good.

You see, there's this great parent advocate in Bedford who offered to host the presentation. Last year, we put on a half-day workshop, but this year she agreed to host the whole shebang:

• Understanding the Legal Options to Support an Adult with an Intellectual Disability;
• Protecting Your Child's Financial Future;
• Government Money Most Families Leave on the Table

We have repeatedly asked people to pre-register with Jocelyn but .... alas, this has not been happening.

So, please, anyone who is interested in attending, do pre-register with Jocelyn

jocelyntingley@gmail.com

And for anyone who wasn't planning on attending but now thinks maybe they should (because you really should*, you know) .... well, you know the drill.

* Of course, it's entirely possible that I could be biased,but, speaking as one family member to another family member, this is information you really need to know.

Those Lazy Hazy Crazy Days of Summer

Wow - my apologies! May 27th - it's hard to believe I've went this long without posting.

But (as usual) I do have a few excuses. Let's see ... where to begin?

• In early June, my husband and I were successful in obtaining guardianship of our oldest daughter. Not only is that, obviously, a significant event for our family but it had added import for me. You see, I've always been quite confident that the a family could use the Nova Scotia Legal Guardianship Kit to successfully apply for guardianship of a high-functioning adult. But now I have proof.
  
  The sample affidavits for a high-functioning adult in the Kit were based on my own daughter, who  at the time was only 16. When the time actually came to apply for guardianship of her (3 years later), I realized that I had to update those affidavits because she had made some significant progress in those three years. And yet, in spite of that progress, the Kit was still more than adequate to found a successful court application.
  
  Can the NS Legal Guardianship Kit be successfully used to obtain guardianship of a high-functioning adult?
  
  
  
  
  
  
  
  
  
  YES. YES IT CAN.
  
  

• In the middle of June, my daughters and I headed out to Manitoba for my niece's wedding. And to meet my brand new now two-year-old grand-niece.  Did we have a nice trip, you ask? Yes, yes we did. A lovely three-week trip it was.

• Ever a sucker for punishment, less than a week after our return home, I wrote rewrote the Bar Admission Examination. And, just for the record, an examination that took one day and was open book when I first wrote it, 20 + years ago is now a two-day exam. And, most definitely, NOT open book.
  
  That's right, I took the first, make that the second, step in that leap of faith we discussed last year. We won't receive our marks for a few months but I must say I do find the whole thing rather exciting. 

So there you have it. A brief synopsis of the first part of my summer.

But never fear, now that I'm back, we will start getting some content moving again on ye olde blawg.

In fact, I already have some ideas floating around my noggin, from discrimination regarding service animals to the right and ability of persons with intellectual disabilities to marry to the import (and importance) of confidentiality agreements when litigation (including human rights matters) is settled.

So stay tuned. I will be here. Unless, of course, this @%$!! heat completely does me in.

And I slowly m-e-l-t ... a-w-a-y ...

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.

Mark Start Your Calenders Engines

As you're no doubt aware, I have been offering presentations on various legal-related disability issues for a few years now.

It all started when, as I was in the process of creating the Nova Scotia Legal Guardianship Kit, it quickly became painfully obvious how few families really understood the differences between guardianship, powers of attorney and personal directives.

The need that I had identified (and which led to the creation of the Guardianship Kit) was so much greater than *just* being unable afford a lawyer in order to commence a guardianship application. There wasn't just a cost issue, there was a true information deficit.

Many years ago, someone explained to me that "there's what you know, there's what you don't know and there's what you don't know you don't know." I pondered that for a while and soon cam to realize how true it is. I also came to realize that, sadly, it's what you don't know that you don't know that is the real killer.

For example, lawyers are not taught everything there is too know about the law - it would be physically impossible to fit that much information into our little pea brains. What we are taught, beyond some basics, is where and how to find the answers to legal questions. In other words, we're taught the legal research skills needed to find the answers to those things we don't already know.

All of which is all fine and good, but what happens if a lawyer (or anyone else, for that matter) misses a potential issue? Just who is going to research the answer to a question that they don't even realize exists?

"But what does this have to do with my presentations?" you ask.

Well, I realized that not only did families need information about the different legal options available to support an adult with an intellectual disability but there was a host of other things they needed to know about - things that, in many cases, they didn't even know existed.

Two examples? The Henson Trust and the RDSP. The Henson Trust, by the way, is a particularly good example because for far too many families, no one even realizes there is an issue until the parents have died and it is too late.

And that, my friends, is what led me to the creation of the two other presentations I offer; namely, "Protecting Your Child's Financial Future" and "Government Money Most Families Leave on the Table".

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~  ~

All this to explain to you why I am so pleased to be offering, for the first time ever, all three presentations together in a one-day workshop this Saturday, Feb. 9th, in Truro.  

The event is being sponsored by Parents Supporting Parents and pre-registration is required by emailing parentssupportingparents@;live.ca or phoning 641-2020. There is a minimum donation of $5 per person to Bright Skies Day Camp for Kids with Special Needs (which, by the way, I thought was a very nice touch) and you can get more information by visiting my FaceBook page.

But the reason I am so happy to be offering all three presentations in one workshop is because there is a fair bit overlap between the topics - for example, the Henson Trust comes up in both the "Government Money Most Families Leave on the Table" and the "Understanding the Legal Options Available to Support an Adult with an Intellectual Disability" presentations and the subject of guardianship comes up in both  "Protecting Your Child's Financial Future" and "Government Money Most Families Leave on the Table", all of which can be more than a little confusing for audience members when a related yet unfamiliar topic arises during a presentation but I only have time to explain it in a very limited way.

And all this takes me to my next question - "Will I see you there?".

I hope so.

Five Minutes of Fame (Literally)

UPDATE: So how come no one has ever pointed out this mistake I've been consistently making? Apparently left = right and right = left. And the sidebar ... that's on the RIGHT-HAND side of the page. Sorry.

A big thank-you to CTV Morning Live for having me on the show this morning. I really appreciated the opportunity to discuss why guardianship (and other options) can be such an important issue for so many families.

If you're new here and have more questions, please scroll to the bottom of the page and click on the Guardianship label in the sidebar to the left. That should give you access to all the posts I have written on the subject.

You will also find labels like "Powers of Attorney" and "Personal Directives" that you might like to check out, too.

If you're interested in my upcoming presentation on Saturday, December 8th, click on the "Upcoming Presentations" tab at the top of the page.

And please feel free to stick around - hopefully, you will find valuable information in both past and future posts.

For Whom The Bell Tolls

Very interesting situation going on in Minnesota at the moment - apparently, the law there as it now stands provides that persons subject to a guardianship order retain the right to vote unless a judge explicitly takes it away.

Some are trying to get that changed to provide that a person subject to guardianship cannot vote unless a judge orders otherwise. They fear that the votes of some persons with disabilities are being manipulated. The article refers to "guardianship voting" - I'm not sure exactly what that means but they also speak about group home workers taking their "charges" to vote and possibly influencing their votes - although I have to wonder how many of those group home residents are actually subject to guardianship. My guess is that most aren't.

In Nova Scotia (which easily has the most archaic guardianship system in the country), many rights are automatically taken away from a person subject to a guardianship order, including the right to vote.

Although I think I know what my readership will say, what do you think?

Should people who have been declared incompetent still be allowed to vote? If so, what (if any) measures should be put in place to ensure that their votes aren't being illegally manipulated?

Moving On

Just a reminder that I will be giving two presentations in Clare this Saturday, March 31st . The first will be on the Henson Trust and the second is entitled "Supported Decision Making and Legal Guardianship in Nova Scotia".

The event is graciously being hosted by the Clare ACL and wil be held at L'Atelier de Clare,
# 7711, Hwy 1, Church Point from 1:00 - 3:00 pm.

Next week, I take on the task of preparing guardianship papers for my own daughter. And then, then we will get back to some more posting here.

Always lots of stuff a'happening.