"Our Disability Welfare System Needs Rebuilding"

There's a good article by Andre Picard in Thursday's edition of the Globe and Mail on why all the the provinces need to amend their legislation to ensure that RDSP benefits are not clawed back.

And in words much better than mine:

Under federal legislation, a person with a disability can continue to benefit from other social programs - the Guaranteed Income Supplement, Old Age Security Pension and Canada Pension Plan - even if they withdraw funds from their RDSP.

However boring, the arcana of tax law do matter.

For the federal plan to really achieve its goal of lifting people with disabilities out of poverty, the provinces need to get on board, quickly.

Currently, recipients of social assistance who receive income from other sources (from employment or gifts) have their benefits clawed back. They can also be deemed ineligible for assistance based on their level of assets.

Clearly, it would be a perversity of public policy for provinces and territories to clawback funds set aside for people with disabilities by their families.

It would be equally perverse to say, as a matter of policy, that disabled people are ineligible for social assistance because they have assets in a RDSP.

Yet, to date, only British Columbia, Newfoundland and Yukon have exempted the RDSP as an asset and/or income.

What are the other eight provinces and two territories waiting for exactly?

How dare they consider pilfering money from the pockets of people with disabilities and their families?

. . .

People with severe disabilities who are unable to work - about 500,000 countrywide - receive social assistance payments in the range of $10,000 a year in most provinces.

Attempts to break free of this poverty trap usually result in benefits being clawed back, though there are some innovative programs in British Columbia, Manitoba and Newfoundland that allow people with disabilities to supplement their benefits without being penalized.

The RDSP is an attempt to further change that untenable and counterproductive situation.

Go read it all.

And then go find out what your particular province is doing to support, as opposed to undermine, this first small step in the necessary tear down and rebuild of the welfare system in Canada.

Are they continuing to pilfer money from the pockets of people with disabilities and their families? If so, how are they justifying their actions? And what are we going to do about it?

If They Can Do It In The Yukon ...

Apparently the Yukon has recently published a new version of their Social Assistance Regulations in which the RDSP (Registered Disability Savings Plan) has been exempted as an asset. It is also indicated that the RDSP will not be included in the calculation of liquid assets for an individual receiving social assistance.

And the Yukon Department of Health and Social Services has also indicated that they will not count the income from the RDSP when they determine benefit levels for someone on social assistance.

Which begs the question ...

If the Yukon and British Columbia can do it and if progress is being made in other provinces as well (in the form of a Private Member's Bill in Ontario, for example), what's up with Nova Scotia?

Your Immediate Attention Is Required

Update: The NSACL press conference scheduled for 10 am tomorrow morning is cancelled. The Association, Nichele Benn and her family wish to thank the Department of Community Services for their attentiveness to Nichele's needs. Nichele will remain in the community with her supports.

Please circulate this message. We apologize for any inconvenience but are so very happy for Nichele.

Received this missive through the email chain today and thought I better pass it on. Anyone local to Halifax, it would be much appreciated if you could attend.

As background, you might remember that we have discussed the various programs available under the Services for Persons with Disabilities program before. Sounds like this young woman might have been in the Alternative Family program.

You might also remember one of the initial posts on this blawg back in August of last year concerning the Province's announcement that they planned to spend $19million to RENOVATE an aging institution outside New Glasgow and to build 3 replacement group homes. At that time, I noted that this had more than a few groups concerned. My best guess is that this is part of the fallout.

Subject: Family needs support
Importance: High

There is a young woman who lives in the community with another family. She has lived with this family for over 5 years and there are extra supports provided to meet her needs. Community Services agree that she has made progress. She wants to stay there. Her own family wants her to stay there. The family she lives with wants her to stay. Her doctor has written to Community Services to say she should stay.

Community Services are opening the new institution in Lower Sackville next month. They have told the Mom that the young woman must move to the institution when it opens. They have told her, and repeated it today, that they will withdraw funding if she refuses the move.

NSACL is holding a press conference on Thursday at 10am, at the Delta Halifax, Baronet Room 6. (right beside Scotia Square).

I know this is short notice but time is of the essence. They need a show of support. Please try to attend and encourage others. Community Services intends to re-assess all people receiving support from the Services for Persons with Disabilities Program. Someone you love could be affected.

Speakers will include the Mom, People First, another family and a
lawyer.

Mary Rothman

Our Loss, Their Gain

Highly credible rumour has it that Mr. Justice Thomas Cromwell (currently of Nova Scotia Court of Appeal fame) is a front-runner for the next appointment to the Supreme Court of Canada.

Many moons ago (long before his judgeship days), His Lordship was my Civil Procedure Professor at Dalhousie Law School. He was a great prof (smart, funny and very down-to-earth and approachable) and from what I have seen and heard, an excellent judge as well.

Apparently, I'm not the only one to feel that way.

Lawyers and court watchers throughout Atlantic Canada like Justice Cromwell’s chances.

He is "a very able-bodied person," said Lorne Clarke, a retired chief justice of Nova Scotia Supreme Court. "He’s got a great academic record."

"When he’s on the bench, he’s a mensch," said Joel Pink, a prominent Halifax defence lawyer. "Essentially, he’s a gentleman first class. When you look at Ottawa, that’s essentially what you have, those types of individuals."

Wayne MacKay, a professor at Dalhousie law school, also lauded Justice Cromwell.
"I just think Tom is a person with the qualities required to be a Supreme Court judge: compassionate, very polite, moderate and balanced in his approach to things, so to me, he’d be an excellent choice."

"Cromwell is the best," said one Newfoundland lawyer who spoke on condition that his name not be used. "If I had an opinion on it, he would be the guy. There’s nobody in Newfoundland."

Justice Cromwell is bilingual, which is desirable, especially given that he would replace Justice Bastarache, who is bilingual. And he has experience at the top court, having worked there as an executive legal officer in the 1990s.

Justice Cromwell’s record of decisions shows he is a moderate, court watchers say. Mr. Harper might like to appoint someone more conservative.

"I think they’ll be looking for someone who is seen to share that agenda, or at least not to be antagonistic to that agenda," said Philip Girard, a professor at Dalhousie law school. "That’s a bit of a hard person to find in Atlantic Canada."

Were he to receive the next appointment to Canada's highest court, if would be a very happy and a very sad day, indeed. He would be very valuable addition to the SCC, no doubt about it. But he would be sadly missed from our Court of Appeal.

As one of my various jobs, I digest decisions from our courts and I can honestly say that I truly appreciate those written by Mr. Justice Cromwell. They are always well-written and logical and show a solid grasp of both the law and common sense.

And as an advocate in the field of special needs, I can tell you that no matter the bench, be it our Court of Appeal or the SCC, I would be happy to see any of our cases argued before this man. It would receive a very fair hearing. And that's really all you can ask for.

So, all the best to Justice Cromwell. Here's hoping you get that new appointment. And here's equally hoping that you don't.

This Just In ... Henson Trust Handbook Now Available Online

Which would be very good news, seeing as how we already know what a valuable and important tool the Henson Trust can be in planning for the future of individuals with disabilities. And how important it is that that such a trust be done exactly right in order for them to work.

Although prepared by Reena and with a definite slant towards the Ontario system, I have no doubt that it will still prove useful for those of us in the disability community in Nova Scotia. Just remember that the rules under the ODSP system as to allowable assets are different than in the Nova Scotia system. So take that part with a bit of a grain of salt and refer back to our previous discussion on the current Nova Scotia system in this regard.

Just to whet your appetite, a quick peek at the Table of Contents

Part 1:
How Henson Trusts can support people who receive ODSP
benefits 4
What is a trust? 4
When is it a good idea to provide fully for your loved one using a trust? 5
What kind of trust could help your relative? 5

Part 2:
Everything you need to know about ODSP 7
What is ODSP? 7
Who can get ODSP? 8
How does ODSP define disability? 8
How does ODSP decide how much money a person with disabilities will get? 8
Answers to common questions about ODSP 10

Part 3:
Setting up a Henson Trust 13
What to consider when you choose a trustee 13
What to include in the Henson Trust provisions 14
Answers to common questions about Henson Trusts 15

Part 4:
How to prepare for the future 20
Developing a financial plan 20
Building up your estate 22
Other things you can do to meet your relative’s needs 23
Answers to common questions about wills and estates 26

Part 5:
Is a Henson Trust a good choice for you? 29
Profiles of families considering a Henson Trust 31

Part 6:
Resources 32

Part 7:
Glossary

So what are you waiting for?

H/T to Dorothy Kitchen, Disability Rights Coalition

A 'Heads Up' ... New Limitation Period For Human Rights Act

I firmly believe that Human Rights Commissions have a valuable role to play in ensuring that individuals with special needs are not discriminated against. One example of this we have seen recently is in relation to a current human rights complaint in the Province with regard to the employment of individuals with special needs.

In that vein, it's important to realize that up until now there has been no legislated limitation period in which a human rights complaint must be brought in Nova Scotia. Meaning that although the Commission might consider the length of time it's been since the alleged discriminatory conduct occurred in deciding whether or not to proceed with the complaint, there was nothing within the legislation itself setting a specified time in which a complaint must be brought.

Until now, that is.

Starting today, June 30, 2008, a one-year limitation period will be in effect with respect to any complaints made to the Nova Scotia Human Rights Commission.

The amendment, which comes into force today, provides that any complaint must be made within "twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing". Although the Commission's Director does have the discretion to grant a complainant an additional period "of not more than twelve months to make a complaint if to do so would be in the public interest and, having regard to any prejudice to the complainant or the respondent, would be equitable", this will only be done in "exceptional circumstances" . Meaning most definitely don't count on it.

Just some usual information to be tucked away for future reference. So you won't have to file it later under the category of "Things I wish I had known".

Gone, Gone, Gone ... You've Been Gone Too Long

For awhile there, it seemed like we were talking about nothing but the new RDSP non-stop and it felt like time to give it a break. But I now realize that it may have been gone a little too long. So, perhaps an update of sorts is due.

For those of you saying "RDSP? What RDSP?", I refer you to the RDSP Fact Sheet courtesy of the RDSP Blog.

For the rest of you hearty souls, I can advise that regulations for the Registered Disability Savings Plan are expected to be finished and passed in late June. Yep, that's this June as in this month.

Apparently, financial institutions have been waiting for the Regulations to come out before they begin adapting and creating their systems for the RDSP. This reluctance on their part makes sense in a way, I suppose, in that they would likely be pretty unimpressed if they began setting up their systems and then had to redo the work as a result of amendments to the Regulations.

It's also been noted that the whole issue of the implementation of the RDSP should lead to a natural follow-up around the issue of how Trust funds, in general, are treated. Given that the RDSP surpasses trusts for flexibility and the amount of assets allowed within the plan, it should be a logical extension for provinces to grant trusts the same flexibility and treatment as the RDSP, right?

But the devil is, as always, in the details and in this case, the details are exactly how the various provinces will choose to treat the RDSP.

So what's up in that regard in Nova Scotia?

So glad you asked. Unfortunately, the answer appears to be ... not a lot.

You might recall from our previous (numerous) discussions around the Henson Trust that the Department of Community Services (DCS) appears to take the position that no trust (including the Henson Trust) is valid in Nova Scotia when it comes to protecting eligibility for government benefits as from their point of view the beneficiary of the trust has access to assets and thus will be ineligible for benefits. And although I and many others beg to differ from their view when it comes to the Henson Trust, it's correct that, as the legislation is currently worded, discretionary trusts will not protect your child's access to government benefits.

The problem with your typical garden-variety discretionary trust is created by a regulation passed pursuant to the Employment Support and Income Assistance Act which reads as follows:

58 Trust Money Where a sum of money is set aside in trust for an applicant or recipient or a spouse or dependent of an applicant or a recipient by a court or a person other than the applicant or recipient, assistance shall not be granted where it is feasible for the applicant or recipient to obtain support for himself or herself or his or her spouse or dependent child from the sum set aside.

So that's the current situation. And to the best of knowledge, the Department has not made any move to change this regulation. Or given any indication of how they plan to deal with the RSDP.

The RDSP, you see, is a creation of the federal government. So now the feds get to play the 'good guys' while the Provinces have to pony up to the table and allow for fair implementation of the program. And although many provinces have either already done so or have taken some good solid steps in that direction, alas, to date, Nova Scotia does not appear to be one of them.

'So what's up with that?' I ask.

No Longer Just 'Proposed'

The Personal Directives Act has arrived.

In all its glory, so to speak.

A Hearty Welcome To The Proposed 'Personal Directives Act'

Update: In an effort to add some clarity that I feel may have been sorely lacking in this post, I dug around and came across some more succint information at The Legal Information Society of Nova Scotia.

Q - Are there different types of advance health care directives?

A - There are two basic types of advance health care directives,
a proxy directive and an instructional directive.

In a proxy directive, you appoint a person as your proxy and give him or her authority to make health care decisions for you should you become unable to consent to treatment.

In an instructional directive, you set out your wishes for what health care measures you want to be taken for you should you become unable to express your wishes yourself.

You may combine both directives in your advance health care directive, or you may choose to have only one type of directive but not the other.

In Nova Scotia, the law deals only with proxy directives, under the Medical Consent Act. However, you may still provide instructions to direct or guide your proxy in making the proper health care decisions for you.

Bottom line, although "living wills", which are considered instructional directives, are not yet recognized at law in Nova Scotia (although this will likely change with the passing of the proposed Personal Directives Act) they can still be useful devices, as in most situations, I think you will find most healthcare professionals will attempt to follow your stated wishes.

~ ~ ~ ~ ~ ~

Although some Nova Scotians currently make use of 'advance care directives' or 'living wills' in an effort to appoint another person to make decisions on their behalf, give advance instructions or express their wishes on future personal care decisions, presently in Nova Scotia there is no specific legislation governing such documents. This is unfortunate, given that such documents allow individuals, while they are able, to express their personal autonomy in decisions that will affect them in the event of their incapacity.

Currently, the Powers of Attorney Act authorizes a person by execution of a Power of Attorney to authorize another person (the attorney) to manage their estate (property). A Power of Attorney is referred to as an enduring Power of Attorney if it contains a provision expressly stating that it may be exercised during the legal incapacity of the donor. However, the Powers of Attorney Act does not specifically provide for Powers of Attorney for personal care.

The only type of advance health care directive currently available in Nova Scotia is found in the Medical Consent Act. This legislation allows for a person to pre-authorize another person to give consent or direction respecting medical treatment in the event the person becomes incapable of giving consent. However, it does not provide for personal care decisions, other than medical ones, and does not provide for a person to give instructions and express their wishes about personal care decisions, including medical care.

Thus, other than medical care, there is no specific legislative authority to allow a person to appoint another person to make decisions on matters of personal care, for example, with respect to residence, care and services, and matters of comfort. Nor is there any specific legislative authority to allow a person to give advance instructions or express their wishes on future personal care decisions.

And for those who have not made an authorization pursuant to the Medical Consent Act, there is no provision in law that allows for a substitute decision maker for medical decisions for incapable persons outside of a hospital unless there is a court appointed guardian for medical care outside of a hospital.

Many stronlgy believe that other forms of advance health care directives should also be legal in Nova Scotia to better meet the needs of some people and point to the fact that advance health care directives in a variety of forms are available under laws in other provinces.

READ MORE

'It's Your School'

Following are two letters from David Barrett to keep you aware of a advocacy initiative going on in the Halifax Regional Municipality. The thing is, though, I see no reason to keep this great idea limited to the Halifax Board.

What if every school board in the Province had a representative to speak on behalf of special needs students?

Hello Everyone,

Just want to update you in regards to requesting that a position be created for a representative to speak on behalf of students with special needs on the Halifax Regional School Board. Things are moving along well. The Nova Scotia Utilities and Review Board has informed me that they are unable to make a decision of this magnitude. They were also kind enough to forward our e-mails along to the Minister of Education, Karen Casey.

I have also contacted members of the Lib and NDP parties to inform them of the importance of this position if our students are to receive an education appropriate to meeting their needs. I strongly encourage you to express your views and concerns to you local MLA.

The more communication emphasizing the importance of having a Students with Special Needs Representative on the Halifax Regional School Board that crosses their
computers/desks, the better. I am asking that you work with me and contact your
MLA to educate them about this important issue.

If you didn’t have a chance to express your support for this position the first time I made this appeal, there is still time. You can send you letter via email to the
Honourable Minister Karen Casey at: EDUCMIN@gov.ns.ca .

In closing, I would like to thank all of you for supporting our children when it comes to have meaningful programming,

David Barrett , Parent Advocate.
dbarrettl@hotmail.com

~ ~ ~ ~ ~ ~ ~

Dear Education Minister Karen Casey,

I am writing this e-mail in regards to am e-mail campaign I am presently leading. I have also made my MLA Berry Barnet aware of this campaign and who has shown his support and has agreed to speak to you in regards to this subject.

As a parent of a 14 year old special need student and a advocate for children and youth with special needs, who has worked diligently with the HRSB and government departments is regards to education of students with special needs. I find that policy and programming are not properly enforced or even in place in regards to the board it self and in order to fulfil the proper needs of all students to a successful and meaningful education there has to be changes made so that when policy and programming is designed in the HRSB that there is a representative around the table that dedicates to the issues of 20% of the HRSB's student population that are special needs.

Be it resolved that I hear by request for you, Karen Casey the Minister of Education to take a firm look at providing a seat on the HRSB and any other school board which has a special needs population of 15% or more to have a special needs representative.
There for all students within these boards would be evaluated equally when it came to programming and policies(not just the "normal" students).

Along with this I will be sending a copy of this e-mail and the letters of support to other education ministers and my MLA Barry Barnet. As of present I know that you have received approximately 35 e-mails in campaign regarding this issue, some of which were forwarded to you from the UARB board.

In closing I would like to thank you for this opportunity of making sure that our educational system provides a successful and meaningful education for all students, for this is the only goal in which will benefit the education system. I look forward to your response and I will continue correspondence with the other education ministers which I know will be questioning you in regards to this subject.

Thank-
You Parent Advocate,
David Barrett

So what we are going to do about it?



Following is a link to all of the school boards in the Province. Click on the link to your Board and let your thoughts be known. After all, if not you, than who?

Where Do You Turn?

Who do you go to if you suspect abuse of a loved one (or anyone else, for that matter) in a hospital, group home or residential care centre?

The Protection of Persons in Care Act came into force on October 1, 2007.** The legislation attempts to provide an extra safe guard from abuse for patients and residents 16 years of age and older who are receiving care in a Nova Scotia health facility (which includes hospitals, nursing homes, homes for special care or caring for persons with disabilities, group homes and residential centres) and requires health facility administrators and service providers (including staff and volunteers) to promptly report all allegations or instances of abuse.

Anyone else (that's you!) can report abuse by calling 1-800-225-7225.

You can find a few more things you need to know, such as the definition of the term "abuse" and exactly what comprises a "health care facility" here.

** Interesting side note. Although the Act was originally passed in 2004, it was not proclaimed (most Acts do not become effective until they are proclaimed) until October, 2007. Anyone else wondering what that three year delay was all about?

UN Convention on the Rights of Persons with Disabilities To Come Into Force

The following excerpts are from the April 16, 2008, NSACL newsletter:

On Thursday April 3, 2008, the UN Convention on the Rights of Persons with Disabilities received its 20th ratification! The Convention will come in to force 30 days following the 20th ratification (May 3, 2008).

Canada has still not ratified the Convention but we are hopeful that this momentum will encourage them to take action. The Canadian Association for Community Living continues to be in touch with the Government of Canada on this issue and will provide updated information as it is received.

Secretary-General Ban Ki-moon has welcomed the entry into force of the first international treaty on the human rights of persons with disabilities, after the required twentieth country ratified “It is a historic moment in our quest for realization of the universal human rights for ALL persons, creating a fully inclusive society for all,” Mr. Ban’s spokesperson Marie Okabe said in a statement celebrating the rapid progress of the Convention on the rights of Persons with Disabilities which was adopted in December 2006.

“The Convention will be a powerful tool to eradicate the obstacle faced by persons with disabilities,” she said, pointing to discrimination, segregation from society, economic marginalization, and lack of opportunities for participation in social, political and economic decision-making processes. Today’s ratification by Ecuador means that the Convention, along with an optional protocol that will allow individuals and groups to petition for relief, will be legally binding as of 3 May. Tunisia and Jordan also ratified the treaty earlier this week.

From my point of view, the real question is "Why Not"?

Why hasn't Canada ratified the Convention?

Do we have a particularly good reason? Or any reason at all?

Is it just not considered politically expedient at this time?

Is it even on the federal government's radar screen?

As I've noted before, the Convention is not binding on any country that has not ratified it. Ratifying the Convention means that the Minister of Foreign Affairs signs an "instrument of ratifiication" which certifies that the government of Canada ratifies the Convention. This "instrument" will then be deposited with the UN.

Although, once the Convention is ratified, the federal government will be obligated to bring its legislation in line with the Convention, this will not bind the provincial governments. Each provincial government is free to make its own decision in that regard. And, unfortunately many of the laws that affect the daily lives of people with disabilities are provincial laws.

However, first things first. It's time to contact Minister Bernier and request demand that Canada ratify the Convention.

'Sorry, You're A Liability' ... Important Human Rights Issue

Apparently some businesses in this great Province of ours are advising individuals with special needs and their families that their services as employees are not welcome. Wait, let me rephrase that, of course they would be welcome as employees ... provided they provide their own insurance coverage.

Sound strange?

A family in Pictou County has brought a complaint to the Human Rights Commission concerning the actions of two business, Sobeys and Blockbusters. According to the family they were advised by both of these fine corporate citizens that their son would have to provide his own insurance coverage if he wished to work in one of their stores. Without such additional insurance, he was considered a 'liability'. And as a side note, according to the family who, in good faith, made their best efforts to secure such coverage, such insurance doesn't even exist.

The Nova Scotia Human Rights Act prohibits discrimination in respect of employment on the basis of, among other things, physical or mental disability. The Commission will first work to see if some sort of mediated agreement or settlement can be reached between the parties. Failing that, a decision will be made as to whether to forward the complaint to a Board of Inquiry for a hearing.

I must admit that part of me fervently hopes that somehow this family was mistaken, that, as unlikely as it is, they misunderstood the comments of store employees to their enquiries. Not that I really believe that; it's just something I would like to wish to be true. As a lawyer, its very disquieting to think that such practices may be going on in Nova Scotia and, as a parent, it is sickening to consider the possibility.

At any rate, it's certainly an issue to keep an eye on.

I will update you on the complaint as more information becomes available. And if, by chance, your family or someone you know has experienced a similar situation, whether with these employers or others, I would strongly urge you to bring that information forward to the Human Rights Commission. If, indeed, this type of discrimination is being practiced in the Province, it's time to bring it to the light of day and put an immediate end to it.

Such discrimination, if it is occurring, might help to explain statistics like these. (Found on p. 8 of the link)