"Limited Scope" Legal Services Now Available in Nova Scotia

The Nova Scotia Barristers' Society has recently announced that "limited scope" legal services will now be allowed in Nova Scotia.

"Things just got easier for Nova Scotians who want to retain a lawyer for just a portion of a legal matter. Although many lawyers already provide “limited scope legal services,” new clarity and direction in the legal profession’s rules of conduct should improve public access to a broader range of these services."

This means that lawyers in the Province will now be allowed to represent a client for only part of a matter, without the expectation that they are acting generally in the matter or are the solicitor of record.

This so-called ‘unbundling’ of legal services has become fairly common in other parts of Canada and in the US, particularly as lawyers now often find themselves competing with online legal document service providers.

But it's good news for the public because if offers more possibilities for that large segment of the population who doesn’t qualify for Legal Aid and is simply unable to afford the cost of hiring a lawyer to represent them throughout an entire matter. And, as you might recall that, when it came to the issue of applying for guardianship of an adult family member, it was exactly this same situation that motivated me to create the Nova Scotia Legal Guardianship Kit.

The new rules will now allow lawyers and clients to agree on exactly what legal services the lawyer will provide, meaning that the lawyer might be hired just to prepare affidavits or other documents, for example, while the client acts alone in court or the lawyer might attend court only to examine or cross-examine a witness, while the client handles the rest of the matter.

As I said, this really should be a win-win situation for the public, offering access to the legal system to a group of people that have become more and more marginalized, while lawyers are held to the same standard of competence for that portion of the matter they agree to undertake as is always required in any situation of legal representation.

Of course, good communication will be crucial as both parties need to be completely clear and on the same page as to who, exactly, is responsible for doing what, exactly. So should you find yourself considering proceeding in such a manner, please ensure (for your own protection and to avoid any possible misunderstanding) that it is clearly specified, in writing, exactly what the lawyer is agreeing to do and what you, as the client, are responsible for doing yourself.

And as for me, speaking both personally and professionally, I must say that I find this whole concept of "unbundling" very exciting as I look forward to the next phase of my life.

Political Success????

Update: I see Jim Morton, MLA for Kings North is to be making an announcement at 11:00 tomorrow this morning (Monday) at the Flowercart on behalf of the Minister of Community Services. 

Whazzup, you ask?  "Expanded support for Persons with Disabilities in Nova Scotia", they say. We shall see ... we shall see ...

Is it actually possible?  Possible to successfully advocate with our politicians and see positive change - direct positive results?Ask me that question a few weeks ago and, depending on my mood, I might have spouted the party line ("Never doubt that a small group committed people can change the world.  Indeed, it's the only thing that has.") or you might have gotten a more cynical response.


Ask me today and ... you will get guarded optimism.  Tinged with a bit of excitement. 

You might recall my recent blawg beg post, asking for your support by writing to your MLAs and the Minister of Community Services to request that the provincial government deal with one aspect of the "gap year" families face when their children reach the age of 18.  An "adult", according to the feds.  Still a minor, according to the Province.

At any rate, I was informed by my MLA, Ramona Jennex, today that even though there has been no media coverage (and nothing apparent on a review of the gov't website), there is  indeed a line in the budget to address the gap year issue.  Now who cool would that be?

Notice I say "would that be" ... because when it comes to politics, even seeing isn't necessarily always believing.  Forgive us if, as a population, the disability community, as a whole, tends to be a little sceptical of all things political. 

Please don't get me wrong, it's not that I doubt Ramona's word for one minute (and she did say she pushed and pestered until she saw the budget line with her own eyes), but first said budget will need to be passed into law.  Which, of course, shouldn't be an issue in a majority gov't situation.  Then, as Ramona pointed out, the Department of Community Services will need to figure out exactly HOW they will implement this change - will there be some procedure put in place whereby people will have to apply for this extra funding, etc.

So, yes, guarded optimism would best describe it at the moment.  Okay, maybe, more accurately, guarded but very optimistic.

And although I think Ramona (and yes, perhaps even, the Minister of Community Services) deserve a well-earned pat on the back, perhaps it's best if we wait to pat ourselves on the back until we actually see the change in effect on the ground.

Still, who ever said that a small group of committed people can't change the world, even if it is only one small step at a time?

Blawg Bleg - Gap Year for Young Adults with Special Needs

I would like to request your assistance with my current project du jour.

Our kids who are eligible for the Disability Tax Credit receive a Disability Supplement on the monthly Child Tax Benefit cheque. This can be quite significant - in my case, both my daughters get the Supplement and it doubles the amount of our monthly cheque. But when they turn 18 (which my oldest does in March) they lose the Child Tax Benefit (including the Disability Supplement) and the Province doesn't kick in with Social Assistance benefits until the person turns 19.

I have been dealing with my MLA (Ramona Jennex) on this issue, who has been dealing with the Minister of Community Services on my behalf. Apparently the Minister if aware of the issue but hasn't yet figured our what (if anything) to do about it. So Ramona asked me to write a letter directly to the Minister setting out specifically what I wanted to see happen which she would then hand-deliver. You can find a copy of that letter below the jump.

I haven't heard anything back yet and I think it would be really good if the Minister had letters coming at her from all over the Province on this issue so she could see it's not an isolated thing, but it has a big impact on a lot of families. So I am asking you to please take a few minutes to write to both your MLA and the Minister expressing your concern with this matter. For many families, that lost income can make a big difference over the course of a year.

Although actual written (typed) letters are known to be much more effective than email, if writing an email is all you can do, even that is better than nothing. I believe we can get this issue dealt with if we make it clear we are serious about it. So please take a few minutes and type or write something up to send your MLA and the Minister. You can use the same letter to both (perhaps direct the letter to the Minister and copy it to the MLA) and work off my attached letter, if you wish, but please don't just copy my letter and send it on because we know it takes actual individual letters to have political impact and form letters just don't cut it.

If you're not sure who your MLA is you can go to this page and find out by selecting your electoral district from the drop down menu. Then click on the MLA Information link under the name of your MLA and you will be taken to a page with the MLA's contact information.

This page will give you the contact information for the Minister of Community Services.

Even if your child is over the age of 19 and this no longer directly applies to your family, I would still ask for your assistance. The more letters we get moving, the better chance we will to with deal with this issue. And the way I see it is we have a lot of things that need changing but we can only do it one issue at a time.

Good News on RDSP Front

I just moseyed over to the RDSP blog and came across some good news.

Apparently the most recent Federal budget dealt with the RDSP. Who knew?

First:

In recognition that families of children with disabilities may not be able to contribute regularly to their Registered Disability Savings Plan (RDSP), Budget 2010 proposes to allow a 10-year carry forward of Canada Disability Savings Grant (CDSG) and Canadian Disability Savings Bond (CDSB) entitlements. In event of delays of opening a RDSP as a result of the complex guardianship processes that are in place in some provinces, the proposed carry forward will preserve a
beneficiary’s entitlement to CDSGs and CDSBs so that they are available when a plan is opened.

Then:

In the Budget, the government is also encouraging all provinces to look at introducing more streamlined alternative processes to formal guardianship arrangements, such as those in place in British Columbia.

And finally:

To provide parents more flexibility in ensuring that their savings may be used to support a disabled child, when they are no longer able to support the child, Budget 2010 proposes to allow a deceased individual’s RRSP or RRIF proceeds to be transferred, on a tax-free basis, to the RDSP of a financially dependent infirm child or grandchild.

The rollover provisions not only offer a way to provide for a disabled family member after you're gone, but can also involve a potentially large tax saving - instead of the entire amount in an individual's RRSP or RRIF becoming taxable income the year they die, the funds can now be passed into an RDSP, with no tax payable. And when the funds are eventually withdrawn from the RDSP, they will be taxable in the hands of the beneficiary, at the beneficiary’s tax rate. You can get more information abut this at the RDSP blog.

Although as an aside, I might just note that although the RRSP rollover is certainly a step in the right direction, I, for one, would really like to see the federal government allow the rollover of RESPs into RDSPs for our kids.

The second change is the ability to carry forward entitlements for the Canada Disability Savings Grant and Bond for up to 10 years. Which means that someone opening a plan now will be able to claim the Grant for both 2008 and 2009.

Most of us are, unfortunately, pretty familiar with the issue around guardianship and the RDSP. And well aware that because the laws governing legal representation are provincial, unlike BC, families in Nova Scotia do not have the benefit of Representation Agreements.

And although PLAN has proposed various short term solutions to the federal government to deal with this issue, the feds apparently prefer for it to "be done right" and wait for the provinces and territories to make the necessary legislative reforms. The new carry forward rules will at least mean that people will not be penalized while we await movement on that issue.

For each province to implement something resembling British Columbia's Representation Agreement does appear to be the best option. As noted on the RDSP blog, people with disabilities, families, seniors and others who have used Representation Agreements certainly seem to report positive experiences with these Agreements.

And as also noted on the RDSP blog, Canada's recent ratification of the UN Convention on the Rights of People with Disabilities should provide an added incentives for provinces to take another look at the Representation Agreement.

And, so, it marches on.

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.