IX. Overview and Discussion of the Legal Options2017-03-03T21:30:19+00:00

The evidence from the informant interviews suggests that personal support networks can be a powerful context in which to provide supported decision-making. Although not every network engages in supported decision-making, some clearly do; indeed, some of the networks described by informants were based on incredibly thoughtful articulation of the principles of respect and support needed to enhance the focus person’s autonomy and agency. Moreover, there is an apparent power to the group approach. Again and again, informants talked about something different, something that is added, by having a group of caring individuals who could bring a range of perspectives, check each other’s biases and assumptions, and fill in for each other’s inevitable absences. Many spoke of the group approach as providing safety.

Arguably, there is something in this approach that we ought to take seriously. The question is what it would mean to do so. One option is to provide background supports for networks – for instance, through programs and organizations that help people bring together networks of care – and to recognize these supports in particular cases through existing law. Thus, the law could expressly recognize decision-making supports (including those provided by personal support networks) as legally required accommodation where the person relies on these supports to reach traditional legal capacity thresholds. Courts could also consider, on a case-by-case basis, the possibility of a personal support network arrangement providing a less restrictive alternative to guardianship under ss. 22(3) and 55(2) of the SDA. Another option would be to move beyond current instruments and create a supported decision-making regime that recognizes individual relationships of support and representation (as does British Columbia’s RAA). While this approach would not give particular status to networks, it would allow people to draw on their personal support networks and/or to create new ones by naming several representatives and requiring them to collaborate.

These options on their own, however, fall short when measured against the objectives of providing persons with meaningful participation in personal decision-making without any capacity requirement (thus providing an alternative to guardianship), while ensuring both adequate protection for vulnerable persons and clarity for third parties. Human rights accommodation and the alternative course of action provisions are unlikely to satisfy those wanting true alternatives to guardianship, as they don’t solve the third-party problem; in the absence of a law giving legal status to supporters, parents will continue to act as ‘informal’ guardians, with uneven access to services, and third parties will face uncertainty about who is the legally responsible party. A new decision-making law giving status to individual supporters would solve the third party issue; but it would make supported persons legally responsible for decisions that they might not have fully understood, thus failing to address one of the difficulties raised by critics of supported decision-making. 

So far, these options give personal support networks indirect support, without formalizing them in law. That is, where they are recognized (for instance as valid accommodation), it is because they are in effect providing necessary supports; neither the network, nor the ‘network approach’ to decision-making is given separate legal recognition or status. A second, and more radical, kind of approach would take the group form seriously, expressly recognizing ‘network’ supported decision-making through the tool of incorporation.

The fullest version of this approach would pair the tool of incorporation with a supported decision-making law. Together, these would make the network a legal person that is legally responsible for the decisions entered into by the corporation, thus addressing both the difficulty of making vulnerable persons legally responsible for complex decisions that they might not have fully understood, and the need for clarity for third parties. The new decision-making law would also need to set out standards and safeguards for supported decision-making. Although individual networks might set out safeguards such as principles for decision-making in their corporate documents and contracts with third parties, these are private instruments that are both ill-suited to reproducing all of the subtleties of a supported decision-making legal regime, and unable provide the necessary protection. (For instance, there would be no consistency across networks, and no oversight.)

While this option offers potential advantages with respect to protecting vulnerable decision-makers from legal responsibility, and clarity for third parties, these advantages are not unambiguous. For instance, it is not clear how much these apparent benefits would accrue in practice. With respect to third parties, quite simply, they may not care who is the legal person responsible for decisions, as long as they can clearly identify the party that is legally authorized to make a decision, thereby limiting their liability. And, inserting a corporate person into the process could potentially create greater complexity in that a third party would need confirmation of two legal relationships – (i) between a director representing a particular decision and the corporation, and (ii) between the corporation and the supported individual. Vesting the legal responsibility for decisions in a corporation, on the other hand, might bring with it both advantages and disadvantages. For some decisions – for instance, those relating to funding and the hiring of service workers – it might indeed provide useful protection. Informants indicated that in many cases parents are, in any event, acting as de facto decision-makers even though the legal responsibility lies with their son or daughter, and it might make sense to better align actual decision-making with legal responsibility. This could be achieved through a Microboard approach such as the one used in British Columbia. On the other hand, it is harder to see the benefits of removing legal responsibility for other kinds of personal decisions, such as those relating to medical care. (And, if there are concerns about personal risk taking in other areas, such as personal finance, there are other tools available such as trusts.)

Other factors discussed above, which are relevant to fully assessing an expanded incorporated network approach, include: the safety in group approaches to support; the complexity of incorporation; issues of formality versus flexibility; concerns that legalizing networks could undermine natural relationships; and symbolism. For instance, there is a tension between the formal structure of a corporation and the kind of flexibility and fluidity that many described as essential to an effective personal support network. Although many informants were keen for networks to receive greater recognition and support in law, they were also cautious, recognizing that formalizing a particular legal structure could have the effect of dampening creativity and entrenching forms and practices unhelpful to the real and changing ‘life’ of a network. There are also potential risks in placing legal responsibility for personal decisions in a corporation – namely, that the social ‘face’ of the person is a corporate entity.

This initial examination of personal support networks is not intended to be the basis for firm policy recommendations. Rather, it aims to provide some preliminary data about how personal support networks are working in practice, and to provide a road map for thinking about the options for recognizing networks, and the decision-making supports that they provide, in law. It assesses each of these options for their ability to address core concerns about protecting vulnerable decision-makers and providing clarity for third parties, focusing in particular on whether the most novel of the options – granting legal powers of representation to incorporated networks – contributes anything on this front. With respect to this final option it also sets out (i) how this could look in law, and (ii) the key factors that would need to be taken into account were it to be taken forward. It concludes that while the approach appears to hold promise, particularly for its ability to relieve vulnerable decision-makers of full legal responsibility, and to match that responsibility to the actual (group) locus of decision-making, further research would be required to more fully assess the possible contours and implications of the approach in light of the factors identified above. Indeed, future projects might build on this work, and could include: (i) empirical research that more comprehensively examines Vela Microboards in British Columbia to determine, for example, whether they are engaged in supported decision-making beyond service delivery, the extent to which incorporation is perceived as beneficial or burdensome, and whether any liability issues have ever arisen; (ii) research into the perspectives of government third parties, for instance, the experience in British Columbia of working with individuals with Microboards, on the one hand, and those with Representation Agreements, on the other; (iii) a canvassing of stakeholders representing other communities typically described as “vulnerable”, such as some older adults and persons with mental health concerns, to determine whether network approaches to decision-making are perceived as valuable beyond the developmental disabilities community; and (iv) theoretical research further assessing the compatibility of an approach that removes legal agency with theories of supported decision-making.

 

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