[1] M Bach & L Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (2010), 6, online: Law Commission of Ontario <http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner>.
[2] Representation Agreement Act, RSBC 1996, c 405 (RAA).
[3] NA Kohn, JA Blumenthal, AT Campbell, “Supported Decision-making: A Viable Alternative to Guardianship?” (2013) 117:4, Penn State Law Review 1113.
[4] Vulnerable Persons Living with a Mental Disability Act, CCSM c V90.
[5] Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2.
[6] The legislation also cites other factors for the judge to consider.
[7] RAA, note 2, S 7(1)(c) and (2.1).
[8] Adult Guardianship and Trusteeship Act, note 5, s 17(2)(a).
[9] Health Care Consent Act, 1996, SO 1996, c 2.
[10] Substitute Decisions Act, 1992, SO 1992, c 30.
[11] Mental Health Act, RSO 1990, c m.7.
[12] Law Commission of Ontario, Persons with Disabilities: Final Report – September 2012 (2012), online: Law Commission of Ontario <http://www.lco-cdo.org/en/disabilities-final-report>.
[13] Law Commission of Ontario, A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (2012), online: Law Commission of Ontario <http://www.lco-cdo.org/older-adults-final-report.pdf>.
[14] Law Commission of Ontario, Introducing the Framework: A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice (2012), online: Law Commission of Ontario < http://www.lco-cdo.org/en/older-adults-final-report-framework>; Law Commission of Ontario, Introducing the Framework, Persons with Disabilities: Final Report” (2012), online: Law Commission of Ontario <http://www.lco-cdo.org/en/disabilities-final-report>.
[15] Law Commission of Ontario, note 14.
[16] Law Commission of Ontario, Funded Research Papers: Legal Capacity, Decision-making and Guardianship (2013), online: Law Commission of Ontario <http://lco-cdo.org/en/capacity-guardianship-call-for-papers>.
[17] UN General Assembly, Convention on the Rights of Persons with Disabilities (CRPD), resolution/adopted by the General Assembly, 24 January 2007, A/RES/61/106.
[18] UN General Assembly, note 17, Article 1.
[19] UN General Assembly, note 17, Article 19.
[20] UN General Assembly, note 17, Article 12. Emphasis added.
[21] RAA, note 2.
[22] Justice Marion Allan and Laura Watts, Study Paper on A Comparative Analysis of Adult Guardianship Laws in BC, New Zealand and Ontario, Canadian Centre for Elder Law, October 2006, 7 (Comparative Study Paper, Oct 2006) (Allan and Watts).
[23] Patients Property Act, RSBC 1996, c 349.
[24] Allan and Watts, note 22, 10-11.
[25] Allan and Watts, note 22, 10-11.
[26] Allan and Watts, note 22, 8.
[27] Allan and Watts, note 22, 7.
[28] RAA, note 2.
[29] UN General Assembly, note 17, Article 1.
[30] See for example, Adult Guardianship Act, RSBC 1996, c 6, s 3; RAA, note 2, s 3; Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 3; Decision-Making Support and Protection to Adults Act, SY 2003, c 21, s 3; Adult Guardianship and Trusteeship Act, note 5, s 2; Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3, s 3; Vulnerable Persons Living with a Mental Disability Act, note 4, Preamble; The Health Care Directives Act, CCSM c H27, s 4; Substitute Decisions Act, note 10, s 2; Code civil du Québec, LRQ, c C-1991, s 154; Health Care Consent Act, note 9, Schedule A, s 4(2); Consent to Treatment and Health Care Directives Act, RSPEI 1998, c C-17.2, s 3; Hospitals Act, RSNS 1989, c 208, s 52; Advance Health Care Directives Act, SNL 1995, c A-4.1, s 7; Guardianship and Trusteeship Act, SNWT 1994, c 29, s 1.1; Guardianship and Trusteeship Act, SNWT (Nu.) 1994, c 29, s 1.1.
[31] Mental Disability Advocacy Center, Legal Capacity in Europe: A call to action to the EU and governments, 9, online: <http://mdac.info/sites/mdac.info/files/legal_capacity_in_europe.pdf.>.
[32] Mental Disability Advocacy Centre, Supported decision-making: An alternative to guardianship at 3, online: <http://mdac.info/en/resources/supported-decision-making-alternative-guardianship>.
[33] Mental Disability Advocacy Centre, note 32 (emphasis theirs).
[34] Mental Disability Advocacy Centre, note 32, 7.
[35] United Nations, Backgrounder: Disability Treaty Closes a Gap in Protecting Human Rights (2008), online: UN Enable <http://www.un.org/disabilities/default.asp?id=476>.
[36] CRPD, note 17.
[37] BC Adult Abuse and Neglect Prevention Collaborative, Vulnerable Adults and Capability Issues in BC: Provincial Strategy Document (2009),17, online: Canadian Centre for Elder Law <http://www.bcli.org/sites/defaults/files/Vanguard_%2816May09%29.pdf>.
[38] BC Adult Abuse and Neglect Prevention Collaborative, note 37.
[39] BC Adult Abuse and Neglect Prevention Collaborative, note 37.
[40] RAA, note 2.
[41] RAA, note 2.
[42] RAA, note 2, s 7(1).
[43] RAA, note 2, s 7(1).
[44] RAA, note 2, s 7(2). Re the exclusions in subsection c, consent to abortion or electroconvulsive therapy is permitted only with a written recommendation by the treating physician and another doctor, and consent to psychosurgery and a number of other treatments may never be provided by a representative.
[45] RAA, note 2, s 16(1).
[46] RAA, note 2, s 20.
[47] RAA, note 2, s 34(2).
[48] RAA, note 2, s 30.
[49] Yukon Decision-Making Support and Protection to Adults Act, note 30.
[50] Yukon Decision-Making Support and Protection to Adults Act, note 30, Part 1, s 4.
[51] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 5(1).
[52] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 8.
[53] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 11.
[54] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 9(1).
[55] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 12.
[56] Yukon Decision-Making Support and Protection to Adults Act, note 30, s 15.
[57] Adult Guardianship and Trusteeship Act, note 5.
[58] Adult Guardianship and Trusteeship Act, note 5, s 4.
[59] Adult Guardianship and Trusteeship Act, note 5, s 4.
[60] Adult Guardianship and Trusteeship Act, note 5, s 13(4)(a).
[61] Adult Guardianship and Trusteeship Act, note 5, s 13(5).
[62] Adult Guardianship and Trusteeship Act, note 5, s 13(4)(c).
[63] Adult Guardianship and Trusteeship Act, note 5, s 17(1).
[64] Adult Guardianship and Trusteeship Act, note 5, s 10(1).
[65] Adult Guardianship and Trusteeship Act, note 5, s 86.
[66] Adult Guardianship and Trusteeship Act, note 5, ss 102-104.
[67]The Adult Guardianship and Co-decision-making Act, note 30.
[68] The Adult Guardianship and Co-decision-making Act, note 30, s 15.
[69] The Adult Guardianship and Co-decision-making Act, note 30, s 17(2).
[70] The Adult Guardianship and Co-decision-making Act, note 30, ss 6-7.
[71] The Adult Guardianship and Co-decision-making Act, note 30, s 12.
[72] A hearing is not required if the court orders that a hearing is not required – for example, where all parties consent.
[73] The Adult Guardianship and Co-decision-making Act, note 30, s 33.
[74] The Adult Guardianship and Co-decision-making Act, note 30, s 39.
[75] The Vulnerable Persons Living with a Mental Disability Act, note 4.
[76] The Vulnerable Persons Living with a Mental Disability Act, note 4, s 6(1).
[77] The Vulnerable Persons Living with a Mental Disability Act, note 4, preamble.
[78] The Vulnerable Persons Living with a Mental Disability Act, note 4, s 1.
[79] The Vulnerable Persons Living with a Mental Disability Act, note 4, s 6(2).
[80] We offered participants and host organizations the option of holding a focus group involving multiple experiential experts. Although the host organizations initially suggested a focus group approach, in the end all experiential experts preferred a one-on-one interview.
[81] P Gill, K Stewart, E Treasure & B Chadwick, “Methods of data collection in qualitative research: interviews and focus groups” (2008) 204:6 British Dental Journal.
[82] A Hardon, C Hodgkin & D Fresle, How to Investigate the Use of Medicines by Consumers (2004), 24, online: World Health Organization <http://apps.who.int/medicinedocs/pdf/s6169e.pdf> (Hardon, Hodgkin and Fresle).
[83] Hardon, Hodgkin and Fresle, note 82.
[84] For example, the researcher has conducted research and/or given research presentations in each of the jurisdictions.
[85] J Morse,“Strategies for sampling” in J Morse (Ed)