Thank you, Madam Speaker. This is a report on the review of Bill 3, Guardianship and Trusteeship Act.
Madam Speaker, the Standing Committee on Legislation has completed its review of Bill 3, Guardianship and Trusteeship Act. The committee held public hearings in May 1994 in Fort Smith, Iqaluit and Yellowknife. The standing committee did not receive many presentations on this bill, however, the four presentations that were made were from contrasting perspectives.
Background
The Department of Social Services provided the following background material to the standing committee for consideration.
History And Development Of Guardianship And Trusteeship Legislation In The Northwest Territories
The need for a legal mechanism to protect "dependent adults" was identified in the early 1980s. In 1980, Alberta proclaimed their Dependent Adults Act. In 1993, it was decided that the Alberta act would be used as a model for legislation in the territories.
In October 1988, the draft bill, Dependent Adults Act, for the Northwest Territories was finalized and distributed to organizations throughout the territories requesting feedback and criticism. The results were the development of a complete redraft. The initial concerns raised about the draft legislation were due to progressive developments in guardianship legislation throughout Canada. New legislation had been proclaimed in Ontario, Saskatchewan and Nova Scotia. The Fram Commission in Ontario had three years of public hearings to discuss and recommend the best type of legislation for adult dependents.
In April 1989, the Department of Social Services began the redraft of the Dependent Adults Bill (NWT) which was to incorporate the suggestions received during the 1988 consultative process. The bill was substantially changed in focus due to ongoing consultations and in particular, the Fram Commission Report (Ontario) which was released in the latter part of 1988.
Consultations brought forth numerous recommendations leading to changes in the final bill. Primary recommendations which lead to changes were:
- define the age for an adult as 18 years;
- allow a "friend" to act as a guardian rather than a family member;
- allow the "represented person" to choose the person they want as a guardian when the person is capable of making the choice;
- give legal validity to a person's prior wishes or decisions made when competent;
- state that guardian must reside in the NWT;
- develop a section ensuring language rights;
- in defining "spouse" give recognition to "common-law" unions;
- the public guardian to be the guardian of last resort only when no family person or friend is available or willing to act;
- reports for the court may be prepared by persons other than a doctor, for example, psychologist or a person appointed by the public guardian; - give the court wide discretionary powers so decision-making can be limited to some and not all areas of a person's life;
- provide a section of the act for the protection of abused elders and/or disabled persons;
- change the test for incapability from a finding of mental incompetency to a finding of inability to understand consequences of personal decision-making;
- abolish the phrase "dependent adult" and change the name of the act;
- have a provision for an alternate guardian;
- have a provision for temporary orders;
- encourage the represented person to be involved in decision-making with the guardian;
- provide safeguards if the guardian is not fulfilling his or her duties;
- provide for the review of a guardianship order which is flexible within a defined time frame rather than on a specific date;
- include provision for discharging a guardian who is unsatisfactory;
- ensure the person applying for guardianship has had personal, positive knowledge of and friendly contact with the person to be represented;
- provide for the appointment of a public guardian.
All of the recommendations listed previous have been incorporated in Bill 3, Guardianship and Trusteeship Act.
Public Input
The standing committee received submissions from Anne Crawford, Lynn Hirshman, the Yellowknife Association of Community Living and the Avens Seniors Centre. The opinions expressed by the presenters ranged from complete support of the proposed legislation to eliminating the legislation in its entirety. To illustrate the polarity of views regarding this bill, the following quotes from presentations made before the committee are provided:
"It is the Yellowknife Association for Community Living's position that the current proposed legislation of Guardianship and Trusteeship Act, Bill 3, is not what the Government of the Northwest Territories should be considering at this time. Should this bill pass, people with mental handicaps will be at high risk of losing their self-determination, independence and dignity." Yellowknife Association for Community Living, May 1994.
"I think I would have to challenge the community living people in the sense that a mentally handicapped individual is not incompetent. You can have a disability, you can be mute and yet quite capable of making life decisions. I think that it is very important to keep in mind that in most cases, those people would not require the use of this act because their decision-making capabilities are not threatened. They may not be able to perform functions of daily living, but their mind is quite capable. The clients I see that fall under this act are those who are incompetent. They are mentally incompetent. They don't know where they are when they are on a street corner. They don't know if they have just come out of the bathroom or if they are in their house 50 years ago. They are the ones who need the protection that this act would allow. The clients who have a handicap are not incompetent and should never be reflected that because you have a handicap you fall under this act." Kathy Praamsma, Avens Senior Centre.
"I think that any legislation in this area, dealing with people with mental handicap or with or without mental capacity, runs a lot of serious risks and I can think of three. Legislation, firstly, sometimes can be inflexible so that the people who are affected by it do not have the opportunity and the flexibility to respond in appropriate ways to unique circumstances. Secondly, if something is permitted by legislation, then there is a perception that this is the only thing that can be done. For example, if we have to have legislation passed that says their hair may be cut by barbers, then eventually, it would be interpreted by many people as meaning that only barbers can cut hair. That is not what the legislation intended, but there is that natural tendency to interpret legislation that way." Allistar Gunsun, Manitoba Association for Community Living.
Interjurisdictional Review
The Law Reform Commission of Saskatchewan points out:
"Guardianship legislation is not a substitute for effective social programs to provide services and financial assistance to persons who cannot care for themselves. Rather, it provides a legal status in cases in which formal recognition of the relationship of guardian and ward is required to ensure that adequate care and protection are provided."
Rarely is the legal issue that of determining whether a person is mentally disabled and how that term is to be defined. The legal inquiry is usually more specific. It is concerned with whether the disability is such to prevent the person from understanding the nature and consequences of the subject matter in issue.
The most important legal principle in this area is that there is no such concept as total legal incapacity arising from mental disability. Incapacity in one area does not necessarily imply incapacity in another. As was stated in the report of the Ontario enquiry on mental competency, "Incompetence is not to be understood in any global sense, but rather as reflecting incapacities with respect to specific decisions or areas of decisions".
Mental disability may often affect a person's capability to exercise certain legal rights but not others. Persons who have been declared by a court to be mentally incompetent or mentally incapable of managing their own affairs, may still have the legal capacity in many other areas, such as capacity to marry or to make a will.
The appointment of a personal guardian seeks to ensure that the ward will receive the required care and protection. It does so by placing a duty on the guardian to act in the best interests of the ward, and by investing the guardian with the powers that are necessary to discharge that duty. Clear and well-reasoned criteria for the appointment of a guardian must be provided and the powers and duties of a guardian must be clearly defined.
Most provinces in Canada do not allow for partial or limited guardianship. The legislation adopts an all-or-nothing approach, with mental competence and incompetence being viewed as mutually exclusive absolutes. It fails to recognize that individuals may need the assistance of a guardian in certain areas of their lives and not in others. For example, an individual may be incapable of giving valid consent to medical treatment, but still be capable of deciding where to live and with whom. Without the flexibility of limited guardianship, the law is imposing protective overkill and is unable to respond to the philosophy of the least restrictive alternative.
Three provinces, Alberta, Saskatchewan and Ontario have revised their adult guardianship legislation to allow for limited guardianship. Alberta was the first province to adopt a radically different approach to guardianship with the introduction of its Dependent Adults Act. The most important feature of this act is its implementation of the concept of limited guardianship. The legislation as originally enacted, drew a distinction between plenary and partial guardians. An order for plenary for full guardianship could be made only if the court was satisfied that partial guardianship would be insufficient to meet the needs of the dependent adult.
The Dependent Adults Act of Alberta recognizes that to the extent that the dependent adult is capable of making his or her own decisions and of taking care of himself or herself, he or she should be given the opportunity to do so. This is reinforced by the requirement that guardians exercise their power of authority in the least restrictive manner possible. The NWT Guardianship and Trusteeship Act borrows heavily off the Alberta legislation in this area.
Another significant aspect of the Alberta Legislation is its criteria for determining whether a guardian ought to be appointed. It requires the court to be satisfied that the individual is repeatedly or continuously unable to care for himself or herself and to make reasonable judgements with respect to matters relating to his or her person. Attention is focused not on whether the person falls within a specified diagnostic category, but rather on the ability to take care of oneself and to make decisions affecting one's personal welfare.
Most jurisdictions in Canada require that the application for guardianship be accompanied by affidavits from at least two medical practitioners. These affidavits must contain more than a statement of opinion that the individual in question is mentally incapable of managing his or her affairs. They must provide details of the facts on which this opinion is based. This enables the court to determine whether the opinion is founded upon sufficient grounds. In practice, the medical affidavit is often divided into the following four sections:
a)an initial statement of the physician's qualifications;
b)details of the physician's contact and involvement with the individual and any treatment administered;
c)the physician's diagnosis of the individual's condition;
d)the physician's conclusion, prognosis and opinion, if any, as to the individual's capacity to manage his or her own affairs.
A study was undertaken in Alberta in the late 1980s that identified the skills and abilities that should be assessed in guardianship proceedings and the methods and techniques that should be employed in that assessment. The study's recommendations and assessment instruments are now used extensively in guardianship proceedings in Alberta. The study emphasized the importance of assessing mental competency with the tests that are appropriate to the person's own environment. For example, when someone has been living in a restrictive environment, such as an institution for the mentally retarded, many of the skills considered necessary to appear competent may not have been actively encouraged and, in fact, may have been discouraged.
Once an assessment has been completed, the court must then be satisfied that a guardianship order would be in the best interests and would result in substantial benefit to that person. The court tends to rely heavily on functional assessments in determining whether these criteria are satisfied. These assessments and the court's attention are focused on the specific areas in which the guardian may be granted power and authority. The court would grant the guardian only those powers that are necessary to make or assist in making reasonable judgements. Therefore, the court must look into each of the legislation's specified areas and determine which, if any, are areas in which the adult is unable to make reasonable judgements and would substantially benefit by interference.
In Alberta, the public guardian's office issued a policy directive which states that a test of substantial benefit must be applied to each area of guardianship requested, and that guardianship should be viewed as a last resort. See Appendix A.
Review Results
The committee, during it's review, explored all the concerns expressed by the public. It is the committee's opinion that the proposed legislation addresses most of the concerns in one manner or another. However, the committee, with the agreement of the Minister, wants to see an amendment to the legislation that would give preferential consideration to family members becoming the appointed guardian.
Although this legislation will require constant monitoring for effectiveness, the committee feels that it is one of the most progressive pieces of legislation of its kind in Canada at this time. Therefore, on September 9, 1994, the committee passed a motion that this bill was ready for consideration in committee of the whole.
Motion To Receive Committee Report 6-12(6) And Move To Committee Of The Whole, Carried
Madam Speaker, that concludes the report of the Standing Committee on Legislation on Bill 3. Therefore, I move, seconded by the honourable Member for Deh Cho, that the report of the Standing Committee on Legislation on Bill 3, Guardianship and Trusteeship Act be received by the Assembly and moved into committee of the whole.