[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), Qualitative Nursing Research. A Contemporary Dialogue, 2d ed (Thousand Oaks, CA: SAGE Publications, 1991) 127-145.

[86] As explored in Hardon, Hodgkin and Fresle, note 82.

[87] Hardon, Hodgkin and Fresle, note 82, 24.

[88] LS Whiting, “Semi-Structured Interviews: guidance for novice researchers” (2008) Nursing Standard 22.

[89] CA Moser & G Kalton, Survey Methods in Social Investigation, 2d ed (Franham, UK: Gower, 1985), 20-61.

[90] CA Moser & G Kalton, note 89.

[91] CA Moser & G Kalton, note 89, 79.

[92] National Disability Authority, Report of the Commission on the Status of People with Disabilities (1996), online: National Disability Authority <http://www.nda.ie/website/nda/cntmgmtnew.nsf/0/9007E317368ADA638025718D00372224/$File/strategy_for_equality_01.htm>.

[93] CRPD, note 17.

[94] A Potok, A Matter of Dignity: Changing the World of the Disabled, (Toronto: Bantam, 2003).

[95] KA Heyer, “Disability Lens on Sociolegal Research: Reading Rights of Inclusion from a Disability Studies Perspective” in DM Engel & FW Munger, Rights of Inclusion: Law and Identity in the Life Story of Americans with Disabilities (Chicago: University of Chicago Press, 2003), 261.

[96] LA Chappell, “Emergence of participatory methodology in learning difficulty research: Understanding the context.” (2000) 28 British Journal of Learning Disabilities, 38-43; J Porterm & P Lacey, “Researching Learning Difficulties” (London: SAGE Publications, 2005).

[97] M Oliver, “Changing the social relations of research production” (1992) 7:2 Disability, Handicap and Society 101-114.

[98] R Garbutt “Is there a place within academic journals for articles presented in an accessible format?” (2009) 24:3 Disability & Society 357-371; N Hodge, “Evaluating life world as an emancipatory methodology” (2008) 23:1 Disability & Society 29-40; M Priestley, P Waddington, & C Bessozi, “Towards an agenda for disability research in Europe: Learning from disabled people’s organizations” (2010) 25:6 Disability & Society 731–746.

[99] N Watson, “Researching the lives of disabled children and young people, with a focus on their perspectives” (2012) 26:3 Children & Society 192-202.

[100] S Scambler, “Exposing the limitations of disability theory: The case of juvenile batten disease” (2005) 3 Social Theory and Health 144–164.

[101] M Nind, Conducting qualitative research with people with learning, communication and other disabilities: Methodological challenges (2009), online: University of Southampton <http://eprints.soton.ac.uk/65065>; A Young, “Obtaining views on health care from people with learning disabilities and severe mental health problems” (2006) 34 British Journal of Learning Disabilities 11-19; Economic & Social Research Council National Centre for Research Methods, Conducting qualitative research with people with learning, communication and other disabilities: Methodological challenges (2008) online: Economic & Social Research Council <http://eprints.ncrm.ac.uk/491/1/MethodsReviewPaperNCRM-012.pdf>.

[102] L Townson, S Macauley, E Harkness, R Chapman, A Docherty, J Dias & N McBulty, “We are all in the same boat: Doing ‘people-led research’” (2004) 3