A Change in Substance; Not Just Form

I came across an interesting article in Disability Scoop recently. 

"Most adults with disabilities in Maine who are assigned legal guardians to take charge of
their affairs are not represented by lawyers to protect their interests during the process, according to a new report that calls for reforms in the guardianship system.

Although an American publication, this was the exact situation in Nova Scotia under the former Guardianship Act. However, that legislation was repealed in 2018 and replaced by the Adult Capacity and Decision-Making Act.

This was much more than a few tweaks and a change in title*. 

The ACDMA completely overhauled our adult guardianship legislation. I have written a lot over the years about our former system but would draw your attention in particular to this post. From where I sit , this was (for the most part) a change in the right direction. 

Perhaps one of the most impactful changes was the fact that if there is any question as to the adult's level of capacity, Legal Aid will now serve those documents on the adult and explain what it all means. This gives the adult the chance to fight the application with legal counsel if they wish. 

Although under the former legislations the adult was provided with a copy of the guardianship documents, there was no mechanism in place to assist that person in understanding what they meant. Hand them over and go merrily on your way. 

Many of the other changes referenced below from the Disability Scoop article are also included in Nova Scotia's new legislation.

Maine’s probate code was rewritten in 2019, in part to better enshrine the rights of adults with disabilities. The code now instructs probate courts to consider less-restrictive alternatives — including something called supported decision-making — before granting guardianship ... 

The probate code also includes stronger language that says guardians must promote self-determination and involve individuals in decision-making and created a mechanism for individuals to file grievances.

* As fitting such significant changes to both the process and end result, Nova Scotia's former adult guardianship regime has been abolished and replaced by a "representation" regime under the ACDMA. 

Representation: Vulnerability Just Ahead?

The following is an excerpt from a recent email to a doctor explaining why Representation can be so crucial for higher-functioning individuals. Please pay particular attention to the last paragraph:

The legislation defines “capacity” as “the ability, with or without support, to

• understand information relevant to making a decision; and

• appreciate the reasonably foreseeable consequences of making or not making a decision including, for greater certainty, the reasonably foreseeable consequences of the decision to be made.

In my experience, it is often the second component that is the real sticking point. The simplest example is, perhaps, a child’s ball rolling across the road. Although the child can show his want/need to retrieve the ball at any cost, none of us would allow him to simply run into the road because we understand what the child cannot; namely, the very real risk (and potentially severe consequences) of being hit by a vehicle.

A more apropos example might be a challenged young adult meeting (and perhaps developing a form of relationship with) an individual in the community or elsewhere, who then asks our young adult to go somewhere or do something with them. Given that executive functioning deficits cut through every aspect of a person’s life, the issue becomes the young adult’s ability to think through the potential consequences of the decision he must now make. If, for example, the other individual is a stranger or you and I would see that what that person is proposing is illegal or potentially unwise or even dangerous, [unless a legal Representative has been appointed], no one would have the ability to intervene.

I see it much less as us imposing our value judgement as to what might constitute a “good" decision in the circumstances as recognizing that, whatever any one of us might ultimately decide, we at least have the ability to (if we choose) think forward as to potential consequences; whereas, adults in [this] situation simply do not (and likely will never) have this same ability.

Legal Representation in Nova Scotia: A Treatise [Part i

We ended last year by taking a look at the history of adult guardianship in Nova Scotia and a very quick overview of the new legislation. You will recall that in October of 2017, I also gave an interview to CBC as to my thoughts on the (then) proposed legislation. We will now take a closer look at the Adult Capacity and Decision-Making Act, its requirements and what it all means for families.

By the end of this month, I will have (hopefully successfully) completed my first application for legal representation under the Adult Capacity and Decision-Making Act. And I must tell you that the paperwork required is definitely more complex  then before.

As many of you know my plan was is to modify the Nova Scotia Legal Guardianship Kit so that it complies with the new legislation in order to ensure families continue to have access to a cost-effective way to apply for guardianship representation.

If, by chance, you feel that you picked up on some ambiguity in that last sentence, you are correct.

First, a confession of sorts. I have learned three things over the past year:

• it will take more than a few (or even several) tweaks to turn the Nova Scotia Legal Guardianship Kit into the Nova Scotia Adult Representation Kit; 
• a completely new self-help Kit is required to comply with the new legislation; and
• I honestly don't know how long  it will take to create and test-drive (or if it is even possible to create, for that matter) a new useful Kit.

Although it pains me to say this, I remain committed to helping families approach the legal representation process without incurring the cost of a lawyer if at all possible (or, at the very least, in a way that costs can be minimized).

But let's put that issue aside for now and look at some of the changes made to the process of obtaining guardianship representation in Nova Scotia.

________________________________________________________

As an aside, just in case you were wondering, a treatise 
is defined as:

a systematic exposition or argument in writing including a methodical discussion of the facts and principles involved and conclusions reached

______________________________________________________

Shall we begin?

Mea Very Culpa ... Estate Planning

You know it's bad when ...

Even I can't believe that I have only posted once since February. And this after promising to post on Nova Scotia's new guardianship representation legislation for the past seven months.

Hence: Mea Very Culpa

When it comes to the promised post(s) about the new Adult Capacity and Decision-Making Act, in my defence, there's a fair bit to digest there and the fact that takes time is somewhat problematic, especially when you have actual client files demanding your attention. That being said, I am working on a representation application at the moment and once I have walked through the process myself, I will be in a much better position to pass on what you need to know.

I'm happy to say that I have done a fair bit of work on the new Nova Scotia  Legal Representation Kit, but that, too, will benefit from having actual practical experience with the new legislation to work from.

In the interim, to appease the masses and remind you that proper "estate planning" involves more than just a Will, I offer you this quick reference estate planning chart courtesy of the Legal Information Society of Nova Scotia (a highly-recommended resource lovingly known as LISNS).