II. Background2017-04-04T15:09:52+00:00

A. Rationale for Research

1. The Law Commission of Ontario Project on Legal Capacity, Decision-making and Guardianship

In 2012 the Law Commission of Ontario (LCO) commenced a two to three year law reform project on legal capacity, decision-making and guardianship in Ontario. The law reform inquiry considers the existing legal framework that applies to circumstances where adults may have challenges that impact on their ability to make decisions, including the experiences of people with cognitive, intellectual, mental health or other disabilities. The LCO project explores current mechanisms and standards for assessing capacity, legal processes and legislation concerning the designation of substitute decision-makers, and the regime governing powers of attorneys in Ontario, including provisions concerning advance planning. The project will examine Ontario legislation such as the Health Care Consent Act[9], the Substitute Decisions Act[10] and the Mental Health Act[11]. In undertaking this inquiry the LCO project applies its recently developed A Framework for the Law as it Affects Persons with Disabilities[12] and A Framework for the Law as it Affects Older Adults[13], with the goal of considering the issues in a manner that recognizes the experiences of, and the barriers negotiated by, both people with diverse disabilities and older adults, including the evolving experiences of people with disabilities as they age.

The principles of both of the LCO Frameworks emphasize the importance of understanding the “implementation gap between the law as drafted and the law as applied.”[14] The Frameworks also endorse a “person-centred approach” that considers how people experience the law, given their unique and evolving abilities and disabilities, and the different ways systemic barriers connected to identity and privilege impact on access and experience.[15] This research initiative on supported decision-making, which explores the lived experience of supported decision-making by talking to both experiential and professional experts, seeks to apply both these principles.

This research initiative on supported decision-making was commissioned as part of the LCO project on legal capacity, decision-making and guardianship. In total six research papers were commissioned. The full list of researchers and topics can be found on the Legal Capacity, Decision-making and Guardianship project webpage.[16]

 

2. The International Context: UN Convention on the Rights of Persons with Disabilities

The Convention on the Rights of Persons with Disabilities (CRPD),[17] adopted by the United Nations on December 13, 2006, and ratified by Canada on March 11, 2010, signaled the creation of a comprehensive international human rights treaty focused specifically on promoting, protecting, and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all people with disabilities, and promoting respect for their inherent dignity.[18]

The CRPD not only promotes human rights equality and non-discrimination, but requires that party states create a framework ensuring accessibility for, and independence of, people with disabilities. The sections of Article 9 dealing with physical accessibility have been largely adopted in Canada’s provincial and federal human rights acts and codes. One clause in particular, section 2(f) of Article 9, which requires ensuring people with disabilities access to their personal information, is an issue with implications for Canadian supported decision-making legislation.

Article 19 of the CRPD focuses on ensuring people with disabilities have the ability to live independently and be included in the community. It reads:

States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.[19]

Based on the guiding principles of dignity and freedom, the Convention seeks to protect a person’s right to have the opportunity to choose where they live, with whom they live, which community services and recreational activities they take part in, and make other fundamental life decisions. For the most part, the clauses of Article 19 have since been included in Canadian supported decision-making legislation to assure a supportive decision-maker’s ability to assist the supported adult with these types of decisions and assure their independence.

a. Article 12 of the CRPD

Upon originally signing the treaty in 2007, Canada declared reservations with respect to the Convention’s Article 12, which requires equal recognition of people with disabilities before the law. The language of the article encompasses mental capacity and decision-making rights. It states:

Article 12 – Equal recognition before the law

States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

States Parties shall take appropriate measures to provide access by persons with disabilities to support they may require in exercising their legal capacity.

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.[20]

In effect, the article requires that all people, regardless of disability, be accorded the right to make their own decisions, and be provided the support required to exercise their decision-making autonomy. Canada anticipated that this section could be interpreted in a manner that required the elimination of substitute decision-making. As a result, it reserved the right to continue the use of substitute decision-making arrangements in appropriate circumstances and subject to their existing regulations and safeguards.

The recent passage of the CRPD, ratified by Canada in March 2010, has thus increased the attention on the BC approach to supported decision-making. The Convention prioritizes the promotion and protection of the dignity and respect of persons with disabilities, including the removal of barriers that impede on the full and effective participation in society. The language of the CRPD raises the question of whether the notion of guardianship is fundamentally and inherently a form of discrimination based on intellectual or mental disability, and highlights the need to consider alternative approaches that allow people with cognitive and other challenges to participate, and take leadership, in decisions that impact their lives.

3. The Canadian Context: A Brief History of Supported Decision-making in Canada

Canada is internationally recognized for its leadership in implementing supported decision-making legislation. Many Canadian jurisdictions have enacted legislation that recognizes supported decision-making in a variety of forms, with the British Columbian Representation Agreement Act[21] being one of the first in the world to address supported decision-making in a self-contained statute, outside of a guardianship context. For that reason, the law is considered to create a pioneering model for supported decision-making. The Act took effect in 2000.

The British Columbia model allows a person to designate a supported decision-maker by agreement, formalizing the ability of a trusted individual to assist another adult in making basic decisions. The legislation is designed to allow any person who meets the capacity threshold to enter into a representation agreement; in other words, the legislation does not reference disability, a factor which has been identified as a strength of the legislation:

… many disability rights activists view [the Act] as “normalizing” insofar as it neither singles out nor excludes [people with disabilities] as a group. For many members of the disability rights community, part of the advantage of representation agreements is that they are not disability-specific, and they do not marginalize persons with challenges. They are broad documents that any adult can use in order to nominate a substitute [or supportive] decision-maker and to make their wishes known. An empowerment and normalization theory underlies representation agreements.[22]

In British Columbia (and some other jurisdictions), these agreements are made privately between the parties, and require no involvement of the courts, being initiated by the adult needing support. The Representation Agreement Act allows an adult to appoint substitute or supported decision-makers provided the adult can meet the capacity standards set out in the legislation. The Act imposes lower capacity standards than appear in other statutes, standards that can be met by adults who would not likely meet the capacity requirements to create other personal planning documents, such as powers of attorney.

The creation of the Representation Agreement Act owes much to the advocacy of community organizations who sought legal recognition for existing helpers who provide crucial support to adults with disabilities, and an alternative to the existing guardianship regime. The guardianship model in British Columbia (under the Patients Property Act)[23] requires a legal determination that a person lacks capacity in order for a decision-maker, called a Committee, to be legally recognized (as a substitute decision-maker). The Act does not recognize supported decision-making. This committeeship process instigates an often intrusive evaluation of the adult’s capacity, and results in a loss of decision-making rights.

Since the Representation Agreement Act became law in British Columbia, Alberta (2008), Saskatchewan (2001), and the Yukon (2003) have all adopted their own styles of supported decision-making legislation. Manitoba legislation also references supported decision-making (since 1993). Each of these jurisdictions has approached the issue from a unique direction: some provinces, like British Columbia, emphasize the preservation of independence by allowing vulnerable adults to enter into representation agreements privately; other jurisdictions prioritize the safety of vulnerable adults and require judicial or quasi-judicial intervention before an appointed supported or substitute decision-maker can be named and legally recognized.

While there are nuances between jurisdictions, the principles underlying the legislation remain consistent. Supported decision-making legislation seeks to provide adults with a framework, complete with regulatory safeguards, through which to choose and rely on the assistance of a trusted individual for making certain categories of decisions, providing vulnerable adults and their families and friends with the resources necessary to preserve dignity, autonomy and the right to self-determination.

a. Ideological Tensions in British Columbia around the Representation Agreement Regime

It has been argued that the Representation Agreement Act created a schism between the disability community and the legal community, with seniors’ groups being caught in between.[24] A number of the key advocates from the developmental disabilities community strongly pushed for the abolition of powers of attorney. Madam Justice Marion Allan and Laura Watts explore this schism in a Study Paper published by the Canadian Centre for Elder Law in 2006.[25] They characterized representation agreements as a legislative outflow of the disability movement at the time, noting “the central focus was on incapacity as a disability or challenge, rather than on incapacity as a seniors’ rights issue”.[26] They identify a tension emerging as a function of the then new and controversial push towards a less formal, and less protective, approach to advance planning and decision-making, with undefined concepts of capacity. They write:

There is no question that BC’s disability advocates were pivotal in the campaign for the development of proxy-style representation agreements in the 1990s. The disability community sought an empowering, normalizing tool that would enable adults with challenges to make their own decisions to the greatest extent possible. Accordingly, advocates pressed for an extremely low threshold of capacity necessary to make section 7 representation agreements, sometimes referred to as “standard” or “limited” agreements. However, the legal and health care communities were reluctant to rely on a planning document with such a low, undefined and nebulous capacity threshold. As a result, certain higher-level decisions were placed in a separate class of section 9 representation agreement provisions, sometimes referred to as “enhanced” or “general” agreements. These section representation agreement provisions require a higher, although still undefined and nebulous, level of capacity. They also require the assistance of a lawyer.

Although the Representation Agreement Act came into force in 2000, it remains a contentious document, often criticized for its vague drafting.[27]

The wording of the Representation Agreement Act spells out a conception of capacity to appoint a representative very different from the more traditional threshold for appointing an attorney. The statutory language for the test of capacity to make a standard-form representation agreement is as follows:

Test of incapability for standard provisions

8  (1) An adult may make a representation agreement consisting of one or more of the standard provisions authorized by section 7 even though the adult is incapable of

(a) making a contract,
(b) managing his or her health care, personal care or legal matters, or
(c) the routine management of his or her financial affairs.

(2) In deciding whether an adult is incapable of making a representation agreement consisting of one or more of the standard provisions authorized by section 7, or of changing or revoking any of those provisions, all relevant factors must be considered, for example:

(a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions;

(b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;

(c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;

(d) whether the adult has a relationship with the representative that is characterized by trust.[28]

This very explicit list of functional capacities to make a representation agreement caused joy and relief to some supporters of the regime, and trepidation and rejection by others.

The consultation period around the legislation was lengthy, but many from the legal community felt that their experiences around the practicalities of legal decision-making were not well understood. The conflict seemed to centre between the hope of empowerment for persons with disabilities to organize their affairs on the one side, and the concrete concern that any system which is put into place legislatively must be usable, and understandable, to the both the legal community and the users of the legislation. The Representation Agreement Act, as drafted, contained very unclear language, and was based on a concept of capacity that was novel in law.

For the supporters of the new system, moving to a functional capacity test that enumerates such subjective terms as “feelings of approval” or a relationship “characterized by trust” bring the legislative system into the circles of support and the reality of engaging with some members of the community of persons with intellectual disabilities. For critics, these terms are unquantifiable, easy to say but nearly impossible to interpret in reality, and represent such a “low” level of capacity that representation agreements might put people with capacity challenges at greater risk of abuse.

In many ways, this was one of the first legal conversations taking an entirely new approach to issues of substitute decision-making—and the dialogue occurred in a period of well-developed and passionate disabilities advocacy. At the time, however, the legal community and the seniors’ rights community was not yet as engaged in the discussion in British Columbia. It is likely now, particularly in light of the passage on the Convention on the Rights of Persons with Disabilities[29] (Art. 12) that these concepts of more fluid and modern understandings of capacity and social vulnerability would raise far fewer eyebrows in 2014, than they did in the early 1990s, when many of these concepts were still under early development. Indeed, criticism for the functional test of capacity at the foundation of the Representation Agreement Act appears to have generally quieted down, as the principles of Art. 12 of the CRPD have become more commonly accepted, and as other Canadian jurisdictions have moved to embed a supportive decision-making regime of their own.

B. Key Concepts

1. What is Supported Decision-making?

a. The Difference Between Supported Decision-making and Guardianship

Mary has a twenty-year-old son named Chris. Friends describe Chris as lighthearted, generous and easy to get along with. Chris has a developmental disability and Mary is worried that someone may try to take advantage of his good nature. In the past, a door to door sales person had approached Chris and convinced him to hand over a signed cheque without Chris fully understanding the consequences of that action. 

Chris and Mary discuss good money sense and conclude it would be best if Chris discussed large expenditures with Mary and she helped him with this financial decision-making. She does not acquire veto power, but Chris agrees to contact her when appropriate, to get her input, and the Credit Union agrees to notify Mary if Chris seeks to withdraw more than $500 from his account on a single day. Given that Mary is already named as a representative in Chris’s representation agreement, and the credit union knows Chris and Mary well, the financial institution agrees to this arrangement. Chris is happy that he still has control over his finances and feels more secure knowing that he is less likely to be taken advantage now. 

Supported decision-making is often considered an alternative to substitute decision-making, and in particular to guardianship. Guardianship is a form of substitute decision-making where an individual’s legal right to make all or some of their personal, health care or financial decisions is removed, and a separate person, sometimes but not always a family member, is given the legal authority to make decisions on the adult’s behalf. The guardian becomes empowered to make significant decisions on behalf of the adult, and communicate directly with individuals such as physicians, lawyers, teachers, social workers, landlords, and staff at financial institutions regarding decision-making and implementation of decisions. Guardians also acquire access to an adult’s personal information.

Each province and territory in Canada has legislation governing guardianship in place. Although there is variety in terms of legal processes and key factors, such as the opportunity for the adult to have input in the choice of guardian and the development of the plan for guardianship, many of the principles underlying guardianship are consistent across Canada. In particular, in guardianship and heath care consent law there is a presumption of mental capacity.[30]

Guardianship and other substitute decision-making systems ostensibly exist to assist people unable to make their own decisions—for example, a person in a coma at the extreme, but more commonly people with cognitive issues or dementias. The legislation exists to protect individuals liable to injure themselves or undermine their assets as a result of compromised decision-making. These laws also purport to protect vulnerable adults from being taken advantage of by individuals or institutions that do not have the adult’s best interests at heart. The statutes are protectionist in orientation.

However, in the interests of protection, guardianship also strips people with disabilities of fundamental rights, and can result in their complete exclusion from decision-making in relation to their own lives. Guardianship can also be a tool for controlling an adult and her assets, and misuse and abuse of guardianship authority is not uncommon.[31] Supported decision-making provides a less intrusive legal alternative to guardianship. The model maintains some protection for a vulnerable adult while honouring an individual’s right to choose who participates in making decisions about issues that impact them, and reinforces the right to be part of that decision-making process as well.

b. Principles and Values underlying Supported Decision-making

Elliot is the supported decision-maker for his much younger brother, Max, who has a foetal alcohol spectrum disorder. In the past, Max’s parents, their grandmother, and their aunt were the supported decision-makers in Max’s life. Over the years, other people were brought into Max’s circle of decision-making, such as a favorite school teacher and a soccer coach Max worked with for many years. When the Representation Agreement Act came into effect Max’s informal and undocumented supported decision-making circle was formalized through a representation agreement. When Elliot became an adult he too became a supportive decision-maker for his brother. Max’s supportive decision-makers all cared deeply for him and sometimes got together as a group to talk with Max about decisions he was thinking about.

Over the years Max and Elliot’s parents passed away and soon Elliot found himself the only supportive decision-maker in his brother’s life, with no one to consult with about Max’s life, other than Max himself. Everyone else in Max’s life was essentially paid to support Max through community organization programming. Elliot also found that no one in his own social circles understood or had any personal experience with supported decision-making. He felt quite isolated in understanding how best to support his brother.

When Elliot spoke to Max’s health care providers, financial institution staff and educators, he found everyone expected, and pressured, him to make decisions for—not with—Max. People would call him into meetings about Max without even notifying Max about an issue. Elliot found it increasingly difficult to make decisions with, not for, Max, in spite of his own good intentions.

The Mental Disability Advocacy Centre (MDAC) articulates the following principles as being at the heart of supported decision-making:

  • The person retains their full legal capacity;
  • The person himself/herself makes the decision. The role of supporters is to assist this person to reaching his/her own decisions;
  • There is a relationship of trust between the person making the decision and the supporters;
  • Such a system must be borne of the free agreement of the adult and the supporter(s);
  • There is usually a supporting group or network around the person making the decision;
  • The role of supporters is to assist the person making the decision to communicate his/her intentions to others and help him/her understand the choices at hand;
  • Supporters are usually unpaid and could include friends, family, and/or members of the community.[32]

Although conceptually and legally supported decision-making is often characterized as an alternative to guardianship (and we must appreciate the impact of guardianship on individual autonomy to understand some of the strengths of a supported decision-making approach), strictly appreciating supported decision-making in terms of this contrast ignores some of the key principles underlying supported decision making ideology. MDAC explains that “autonomous decision-making and supported decision-making are [not] necessarily contradictory.” They argue “that these models can actually be used in together… highlight[ing] that interdependence is a normal method of decision-making for everyone.”[33] As they explain in more detail:

Everybody needs support from others in making important as well as less important decisions concerning different areas of life. Indeed this is obvious; we all need the knowledge and expertise of people around us because we do not have all the talents and skills which are relevant to make every kind of decision possible in life… The type and amount of assistance which we all, as individuals, need when making decisions and choices can be different, but in reality we all make choices and decisions based on the supported decision-making model.[34]

In this sense decision-making is an inherently social activity, and some form of supported decision-making is the norm. Treating supported decision-making as an option required because of disability pathologizes the decision-making processes of people with disabilities and is potentially an inherently discriminatory perspective on decision-making. The need for additional support in order for people with certain disabilities to participate in decision-making is not necessarily or exclusively a function of a lack of ability. Rather, the need for support or assistance results of systemic barriers to inclusion people with disabilities face; they require supports to surmount challenges associated with discrimination. As is written in the CRPD, which is grounded in a social model of disability,[35] “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.”[36]

Canadian legislation uses various terminology to denote the supportive decision-maker, such as representative, supportive decision-maker, co-decision maker and associate decision-maker. These distinctions are explored in section II.C of this paper.

2. What is Capacity?

Indira is a 56-year old woman with capacity challenges pursuant to early onset-dementia. Indira’s doctor informs her that while her mental capacity is mildly impaired and fluctuating now, it will likely deteriorate significantly in the short-term. Indira is surrounded by family and friends, but each has their own idea of what Indira should do and why.  

Indira wants to make a supported decision-making agreement naming her adult sons Anil and Rafique as her supporters. She wants to make her own decisions for as long as possible, although the supported decision-making regime will not allow for decision-making in respect of the more sophisticated financial arrangements that will assuredly be needed in her situation. Her daughter, Lakhi, wants her mother to get a power of attorney made quickly—one which would continue past any incapacity her mother seems sure to experience very soon. In contrast, her husband does not want to put any documents in place. He believes that it is disrespectful to his wife, family and culture to create a power of attorney or supportive decision-making authorization; the family has always made decisions as a group—picking certain family members to make decisions is against their family culture. 

The family agrees to go Indira’s lawyer, Ms. Price, for advice on what to do. The lawyer advises that supportive decision-making documents will be of short-lived use in Indira’s case. Ms. Price notes with concern that Indira may not have the capacity to make powers of attorney right now, and that guardianship will be costly and take away Indira’s current legal rights to make decisions, labeling her “incapable”. However, the lawyer advises, doing nothing is a recipe for problems and may result in the Public Guardian and Trustee becoming eventually involved if no financial decision-making system is established.

At its core, capacity (also known as capability) is about decision-making.[37] Although grounded in medical and other information about a person, capacity is a legal concept. As we have written elsewhere:

Definitions of capacity vary across jurisdiction and have evolved over the years. The key to many recently revised definitions is the notion that a capable adult must be able to understand information, evaluate data, and appreciate the consequences of decisions. In this sense capability is about a person’s decision-making process, and it is neutral as to the outcome of that process.[38]

As noted above, definitions vary in terms of whether a determination is global (also called plenary), or decision-specific.[39] A finding of incapability may, for example, be limited to financial matters or to particular personal care decisions. The table below summarizes capacity definitions and standards found in the five Canadian jurisdictions which reference supported decision-making in legislation. Each of the statutes discussed in the following table is discussed in greater detail in section C of this paper.

TABLE 1—DEFINITIONS AND STANDARDS OF CAPACITY IN SUPPORTED DECISION-MAKING LEGISLATION IN CANADA

British Columbia

Representation Agreement Act

Section 8

(1) An adult may make a representation agreement… even though the adult is incapable of:

(a) making a contract,
(b) managing his or her health care, personal care or legal matters, or
(c) the routine management of his or her financial affairs.

Capacity is determined by taking into account all relevant factors, including whether the adult:

(a) Communicated a desire to have a supported decision-maker
(b) Demonstrated choice and preference, or express approval or disapproval
(c) Awareness that making representation agreement will affect them
(d) Has a relationship with the proposed supported decision-maker that is characterized by trust.

Capacity is presumed unless proven otherwise (section 3).

Yukon

Decision Making Support and Protection to Adults Act

Part 1, Sch A

An adult may enter into a supported decision-making agreement if they understand the nature and effect of the agreement (section 6).

Capacity (called capability) is presumed unless proven otherwise (section 3).

Alberta

Adult Guardianship and Trusteeship Act

An adult is considered ‘capable’ to authorize a supported decision-maker if they understand the nature and effect of a supported decision-making authorization (section 4(1)).

Capacity is defined as the ability to understand the information that is relevant to the decision, and to appreciate the reasonably foreseeable consequences of making a decision, or of not making a decision (section 1(d))

Capacity is presumed unless proven otherwise (section 2).

Saskatchewan

The Adult Guardianship and Co-decision-making Act

Capacity is determined by assessing the vulnerable adult’s ability to both:

Understand information relevant to making a decision, and

Appreciate the reasonably foreseeable consequences of making a decision, or of not making a decision (decision 2(d)).

Capacity is presumed unless the contrary is demonstrated (section 3).

Manitoba

Vulnerable Persons Living with a Mental Disability Act

Part 4

Capacity is presumed unless proven otherwise (Preamble).

There is no definition or standard for entering supported decision relationships but rather an assumption that all vulnerable adults living with a mental disability benefit from support and that this should be encouraged.

C. Supported Decision-making Legislation in Canada

Five jurisdictions in Canada currently address supported decision-making in legislation: British Columbia, Yukon, Alberta, Saskatchewan and, to a very limited degree, Manitoba. Although some of the guiding principles, where articulated in the legislation, are consistent, the details of the regimes are quite varied. This section of this paper provides a comparative summary of the five approaches, including a narrative description of each section and a comparative table.

1. British Columbia – Representation Agreement Act

The supportive decision-maker is called a representative.

British Columbia’s Representation Agreement Act[40] is considered to be pioneering legislation in the area of supported decision-making. It is the first self-contained supported decision-making legislation that specifically addresses the appointment, duties, and oversight of supportive decision-makers (known as “representatives” in the Act), as well as the mental capacity required of adults in order to enter into a formal supported decision-making relationship.

The Act arguably approaches the issue in a less intrusive way than other jurisdictions. While some other provinces create complex judicial structures to ensure proper execution, appointment, and assessments, British Columbia’s approach is to allow the vulnerable person and their chosen representative to do much of the work themselves without governmental intrusion. For example, capacity to enter into a representative agreement is not determined by a formalistic legal test, but rather a subjective examination of a vulnerable person’s wishes along with a presumption of capacity.[41] Likewise, a representation agreement does not require approval from a court. Rather, parties are only required to properly draft and execute the agreement.

The legislation allows an adult to designate a supportive or substitute decision-maker, stating that “an adult may authorize his or her representative to help the adult make decisions, or to make decisions on behalf of the adult.”[42] The powers granted to representatives can be quite broad, and allow the representative to assist in a wide range of the vulnerable person’s daily living activities—including nearly all decisions about physical care and routine financial affairs. The Act notes decisions regarding any of any of the following matters may be included:

(a) the adult’s personal care;

(b) routine management of the adult’s financial affairs, including, subject to the regulations,
(i)  payment of bills,
(ii)  receipt and deposit of pension and other income,
(iii)  purchases of food, accommodation and other services necessary for personal care, and
(iv)  the making of investments;

(c) major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act, but not including the kinds of health care prescribed under section 34 (2) (f) of that Act;

(d) obtaining legal services for the adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the adult’s behalf.[43]

The representative may “accept a facility care proposal under the Health Care (Consent) and Care Facility (Admission) Act for the adult’s admission to a care facility, but only if the facility is:

(a) a family care home,
(b) a group home for the mentally handicapped, or
(c) a mental health boarding home.[44]

The Act notes the following exclusion:

A representative may not be authorized under this section:

(a) to help make, or to make on the adult’s behalf, a decision to refuse health care necessary to preserve life, or

(b) despite the objection of the adult, to physically restrain, move or manage the adult, or authorize another person to do these things.

The legislation requires representatives to act honestly, in good faith, and with the care, skill, and diligence of a reasonably prudent person.[45]

Oversight takes the form of a “monitor”, which is an individual named in the representation agreement to ensure that the representative is acting honestly, in good faith, and with the care, skill, and diligence of a reasonably prudent person.[46] The monitor may visit and speak with the represented adult at any time and inquire about the assistance they are receiving. If, as a result of their monitoring, the monitor has reason to believe the representative is serving inappropriately, the monitor may require the representative to produce documents justifying his or her actions, and to report regularly to the monitor. If all other steps have failed, the monitor must inform the Public Guardian and Trustee, who will investigate the issues.

Under the Act, representation agreements appear before court only when a representative applies to the court for directions about the interpretation of a provision in the agreement,[47] or where the Public Guardian and Trustee pursues an objection by a party.[48] Otherwise, a representation agreement under the Act remains an entirely private contract.

 

2. Yukon – Decision-Making Support and Protection to Adults Act

The supportive decision-maker is called an associate decision-maker.

Unlike the legislation in British Columbia, the Yukon Decision-Making Support and Protection to Adults Act[49] is not a stand-alone statute for supported decision-making. Instead, it regulates the appointment of associate decision-makers, representatives, and guardians in a single statute, and distinguishes the roles, duties, and responsibilities of each kind of decision-maker.

The purpose of Part 1 of the Act (Supported Decision-making Agreements) is described in the Act as:

(a) to enable trusted friends and relatives to help adults who do not need guardianship and are substantially able to manage their affairs, but whose ability to make or communicate decisions with respect to some or all of those affairs is impaired; and

(b) to give persons providing support to adults under paragraph (a) legal status to be with the adult and participate in discussions with others when the adult is making decisions or attempting to obtain information.[50]

The role of associate decision-makers is similar to that of representatives under the British Columbia model. The statute characterizes the role as being to assist a vulnerable adult by obtaining and explaining relevant information to them, as well as helping them make and express decisions in a manner that communicates the vulnerable adult’s wishes.[51]

The Act outlines the requirements for appointing an associate decision-maker with a supported decision-making agreement. As in British Columbia, a court order is not necessary to appoint an associate decision-maker. The statute requires the agreement must be properly executed and witnessed.[52] Once a decision has been made with the help of an associate decision-maker, the Act deems that that decision shall be recognized as being the adult’s decision, unless a court determines the presence of fraud, misrepresentation, and undue influence.[53] The agreement must detail both the types of decisions within the scope of authority of the associate decision-maker and the types of decisions excluded from the authority.[54]

As compared with the Representation Agreement Act, the Yukon Act does not set out the types of decisions that may be covered by a supported decision-making agreement. If disagreement or concerns arise from the associate decision-making agreement, the Yukon Act does not create oversight procedures like that of BC’s legislation. Although the Act is intended to protect vulnerable adults from undue influence by associate decision-makers, it does not specify the means by which relief can be obtained or the role monitored. Conversely, an associate decision-maker may apply to the Supreme Court to have an associate decision-making agreement voided where the vulnerable adult enters into a decision without consulting with the associate decision-maker in relation to a type of decision covered by the agreement.[55]

The Act also establishes the framework for designating “representatives” and “guardians”. Like the associate decision-maker, the representative derives authority from a voluntary agreement. However, the representative is a substitute, not a supported decision-maker. There appears to be a slight difference in the potential scope of authority: the decisions that may be covered by a representative agreement are set out in the Act, and include decisions prescribed by the regulations with respect to matters of a non-financial nature that relate to the adult’s person, including where and with whom the adult is to reside; and managing the financial affairs of the adult prescribed by the regulations.[56] The potential scope of authority is quite broad and similar to the BC Representation Agreement Act regime, though does not extend to health care decisions.

Appointing a representative is done in the same way as an associate decision-maker, requiring only proper form and execution.

3. Alberta – Adult Guardianship and Trusteeship Act

The supportive decision-maker is called a supporter.

As is the case with the Yukon legislation, the Adult Guardianship and Trusteeship Act[57] outlines a three-tiered approach to supported and substitute decision-making in an integrated statute. The Act allows any adult who understands the nature and effect of a supported decision-making authorization to appoint a supporter.[58] It also allows the court to appoint a “co-decision maker” or a guardian where necessary.

On the face of the statute, the role of an Albertan supporter is identical to that of a representative in British Columbia and an associate decision-maker in the Yukon: the supporter is authorized to access, collect, obtain, or assist the appointing adult in accessing, collecting, or obtaining information relevant to making a decision. Supporters are also responsible for assisting the adult in understanding the information, and making decisions with that information. The supporter may communicate on behalf of the adult, or assist him or her in communicating decisions to other people.[59]

As in British Columbia and the Yukon, only form and proper execution is required to create a supported decision-making authorization. Afterwards, the supported-decision-maker is required to act in the adult’s best interests, and act diligently and in good faith.

A co-decision-maker, by comparison, may be appointed by the court under the same statute to assist an adult in circumstances where the following four conditions are met:

(i) the adult’s capacity to make decisions about the personal matters that are to be referred to in the order is significantly impaired,

(ii) the adult would have the capacity to make decisions about the personal matters that are to be referred to in the order if the adult were provided with appropriate guidance and support,

(iii) less intrusive and less restrictive alternative measures than the appointment of a co‑decision‑maker for providing assistance to the adult in making decisions about the personal matters that are to be referred to in the order, including the making of a supported decision‑making authorization, have been considered or implemented and would not likely be or have not been effective to meet the needs of the adult, and

(iv) it is in the adult’s best interests to make the order. [60]

The criteria to be considered in assessing best interests are set out in the Act.[61] In order to make the appointment the court must be satisfied that the adult consents to both the proposed co-decision-maker and to the order itself.[62] The appointment of a co-decision-maker nullifies any existing supported decision-making authorization, replacing it instead with the resulting court order. Both supported decision-making authorizations and co-decision-making orders may only apply to personal matters, and thus do not apply to decision-making regarding financial matters—in this sense the potential scope of authority is more limited than that of a representative under the BC regime for supported decision-making. However, the meaning of personal matters appears to capture health care decisions, for the Act states that the order must set out the personal matters to be covered by the order and may include any of the following:

(a) the adult’s health care;

(b) where, with whom and under what conditions the adult is to live, either permanently or temporarily, or temporarily;

(c) the persons with whom the adult may associate;

(d) the adult’s participation in social activities;

(e) the adult’s participation in any educational, vocational or other training;

(f) the adult’s employment;

(g) the carrying on of any legal proceeding that does not relate primarily to the financial matters of the adult;

(h) any other personal matter the Court considers necessary.[63]

If the co-decision-maker does not act in good faith, the adult may bring an action against him or her in court.[64] Unique to the Albertan statute, the Act contains a specific section outlining a range of offences that may be committed by co-decision makers, guardians, and trustees, including fines up to $10,000. These offences include causing mental or physical harm to the vulnerable adult, and causing damage or loss of property of the vulnerable adult.[65]

Also unique to the Albertan Act is a framework for determining capacity. Capacity is determined by a capacity assessor, who conducts a court-ordered assessment if capacity is at issue in an application.[66]  The assessor must determine whether or not the adult understands the information that is relevant to making a decision, and whether or not the adult is capable of appreciating the reasonably foreseeable consequences of a decision (or a failure to make a decision). If the adult does not have the capacity to make decisions about personal matters, the court may appoint a guardian to fully take over decision-making responsibilities.

 

4. Saskatchewan – The Adult Guardianship and Co-decision-making Act

The supportive decision-maker is called a co-decision-maker.

Unlike the other provincial statutes previously discussed, The Adult Guardianship and Co-decision-making Act[67] addresses supported decision-making through the court system. While British Columbia, Alberta, and the Yukon allow adults to enter into supported decision-making agreements as private individuals, in Saskatchewan a co-decision-maker derives her authority by a court appointment, following an application and hearing. It is not clear on the face of the legislation whether the adult whose decision-making autonomy is at issue may be the applicant; it appears rather that the wishes of the adult are but one of many factors that should be considered by the court, applying a best interests test. The court must specify which decisions are included in the order, and the Act distinguishes between personal and property decision-makers. With respect to a personal co-decision-maker, the authority may include:

(a) decisions respecting where, with whom and under what conditions the adult is to live, whether permanently or temporarily;

(b) decisions respecting with whom the adult is to associate and who may have access to the adult;

(c) decisions respecting whether the adult should engage in social activities and, if so, the nature and extent of those activities and related matters;

(d) decisions respecting whether the adult should work and, if so, the nature or type of work, for whom he or she is to work and related matters;

(e) decisions respecting whether the adult should participate in any educational, vocational or other training and, if so, the nature and extent of that training and related matters;

(f) decisions respecting whether the adult should apply for any licence, permit, approval or other consent or authorization required by law that does not relate to the estate of the adult;

(g) subject to the powers of any litigation guardian, decisions respecting the carrying on of any legal proceeding that does not relate to the estate of the adult;

(h) subject to The Health Care Directives and Substitute Health Care Decision Makers Act, decisions respecting the adult’s health care, including decisions respecting admission to a health care facility or respecting treatment of the adult;

(i) subject to the regulations, decisions respecting the restraint of the adult’s movement or behaviour by the use of a device, medication or physical force, where necessary to protect the health or safety of the adult or others;

(j) decisions respecting the adult’s diet, dress, grooming, hygiene and other matters of daily living;

(k) decisions respecting any other matters specified by the court and required to be made by the personal co-decision-maker or personal guardian in the best interests of the adult.[68]

As compared other legislation discussed above, these powers are extremely broad, including the use of physical restraints. The Act notes that authority is shared, and documents requiring signature must be signed by both the adult and her co-decision-maker; however, the co-decision-maker must:

…acquiesce in a decision made by the adult and shall not refuse to sign a document mentioned in section 16 if a reasonable person could have made the decision in question and no harm to the adult is likely to result from the decision.”[69]

In Saskatchewan’s Adult Guardianship and Co-decision-making Act the term “co-decision-maker” is used differently than in Alberta, denoting a kind of supported decision-making. However, the process of creating the arrangement is intrusive and not directed by the adult, and in this sense the regime parallels a guardianship model. Based strictly on the language of the legislation, the Act appears to create a hybrid between supported decision-making and guardianship.

The process set out in the Act is as follows. First, a notice of application must be served in accordance with the Act, and notice must be given to all parties that may have an interest. This includes the adult who may require a co-decision-maker, the nearest relatives (unless they consent), and any existing co-decision-maker, attorney (empowered by a power of attorney), proxy (empowered by a health care directive), trustee, or supporter.[70]  Then, a preliminary assessment is performed which determines the level of the adult’s capacity regarding certain matters. Capacity is determined by a statutory test, which considers whether the adult (a) has the ability to both understand information relevant to making a decision, and (b) appreciates the reasonably foreseeable consequences of making or not making a decision.[71]  The adult is presumed to have capacity unless the contrary is demonstrated. A hearing is conducted in Chambers,[72] on affidavit evidence, with the onus on the applicant to prove on balance of probabilities that the adult needs a co-decision-maker.[73]

To come to its decision, the court will look at a range of factors, such as:[74]

  • the preliminary assessment;
  • the types of decisions the adult will, or will likely, need help with;
  • the supportive resources currently available to the adult to help them make decisions;
  • the wishes of the adult; and
  • the suitability of the proposed co-decision-maker.

 

5.         Manitoba – Vulnerable Persons Living with a Mental Disability Act

The Vulnerable Persons Living with a Mental Disability Act[75] contains a number of references to decision-making support and support networks, but does not truly create a regime for supported decision-making, providing no statutory authority for entering into a supported decision-making relationship.

The Act defines supported decision-making as:

The process whereby a vulnerable person is enabled to make and communicate decisions with respect to personal care and/or their property and in which advice, support, or assistance is provided to the vulnerable person by their support network.”[76]

The preamble emphasizes the importance of decision-making support and support networks, stating:

WHEREAS Manitobans recognize that vulnerable persons are presumed to have the capacity to make decisions affecting themselves, unless demonstrated otherwise;

AND WHEREAS it is recognized that vulnerable persons should be encouraged to make their own decisions;

AND WHEREAS it is recognized that the vulnerable person’s support network should be encouraged to assist the vulnerable person in making decisions so as to enhance his or her independence and self-determination;

AND WHEREAS it is recognized that any assistance with decision making that is provided to a vulnerable person should be provided in a manner which respects the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance that is appropriate in the circumstances;

AND WHEREAS it is recognized that substitute decision making should be invoked only as a last resort when a vulnerable person needs decisions to be made and is unable to make these decisions by himself or herself or with the involvement of members of his or her support network;[77]

A support network is defined as “one or more persons who provide advice, support or assistance to a vulnerable person” and may include:

(a) the vulnerable person’s spouse or common-law partner,

(b) other members of the vulnerable person’s family, and

(c) others chosen by the vulnerable person[78]

The Act states that, “supported decision making by a vulnerable person with members of his or her support network should be respected and recognized as an important means of enhancing the self-determination, independence and dignity of a vulnerable person.”[79]

There is no other reference to supported decision-making in the Act. On its face, the Act does not create a regime for supported decision-making.

TABLE 2—COMPARISON OF KEY PROVISIONS RELATED TO SUPPORTED DECISION-MAKING IN CANADIAN LEGISLATION

Who can be appointed as a supportive decision-maker?

British Columbia Any consenting adult (19 years or older), other than an individual who provides (or is an employee of a facility that provides) personal care or health care services for compensation to the vulnerable adult, can be appointed as a representative. (s.5(1)(a))

The Public Guardian and Trustee, or a credit union or trust company (as long as their authority does not extend to health or personal care) may also be appointed. (s.5(1)(b)-(c))

Yukon An adult can appoint any adult as an associate decision-maker except a person who is an employee or employer of the adult, or a person against whom an order has been made under the Family Violence Prevention Act or under the adult protection section of the Decision-Making Support and Protection to Adults Act. (s.7)
Alberta Any 1 to 3 consenting adults (18 years or older) that are themselves not being represented by a supported decision-maker, co-decision-maker, guardian, or attorney under an enduring power of attorney, can be supported decision-makers. (s.4(1))
Saskatchewan Any adult (16 years or older – s.2(a)) who, in the opinion of the court, has a sufficient interest in the personal welfare of the vulnerable adult may apply to be appointed as co-decision-maker for personal care or property. (s.6(a))

The Public Guardian and Trustee or any individual, corporation, or agency (or category of such) designated by the minister in accordance with the regulations, may also apply. (s.6(b)-(c))

 

What must a person know and understand in order to appoint a supportive decision-maker?

British Columbia An adult must have the capacity to enter into a representation agreement; they must be able to communicate their desire to appoint a supportive decision-maker, and to demonstrate choice and preference, or express approval or disapproval. The adult must also understand how making a representation agreement will affect them. (s.8(2))
Yukon
An adult must understand the nature and effect of a supported decision-making authorization in order to make a supported decision-making agreement. (s.6)
Alberta An adult must understand the nature and effect of a supported decision-making authorization in order to make a supported decision-making agreement. (s.4(1))
Saskatchewan Any person who, in the opinion of the court, has sufficient interest in the personal welfare of the adult may make an application to the court to be appointed as a personal or property co-decision-maker. (ss.6 and 30)

 

What steps are necessary to appoint a supportive decision-maker?

British Columbia Proper form and execution of an agreement: written, signed by the adult and supported decision-maker(s), and witnessed by two witnesses (19 years or older; may not be the representative, or an employee, child, spouse, or parent of the representative, must understand the type of communication used by the adult) or one if the witness is a lawyer or notary. (s.13)

The agreement may be signed by another person on behalf of the adult if (a) the adult is physically incapable of signing the agreement, (b) the adult is present and directs the agreement to be signed, (c) the person signing is not the named representative or a witness, and is witnessed when signing, and – for substitute decision-makers, (d) the person signing completes a monitor’s certificate. (s.13(4))

Under certain circumstances set out in the Act the adult must appoint a monitor (19 years or older, and consenting to the role), unless the representative is the adult’s spouse, the Public Guardian and Trustee, or a trust company or credit union; or if there are two or more representatives who must act unanimously. (s.12)

Yukon
Proper form and execution of an agreement: written, dated, signed by the adult and supportive decision-maker(s), and witnessed by two witnesses (19 years or older; may not be the associate decision-maker themselves, an employee, child, spouse, or parent of the associate decision-maker) all in the presence of each other. (s.8)
Alberta Proper form and execution of an agreement: written, signed by the adult (or person acting on behalf of the adult where the adult shall, in the presence of a witness, instruct another to sign for them) and witnessed by one person (18 years or older; not the named supportive decision-maker nor person who assisted the adult with signing). (ss. 3(1) and 3(5) of Adult Guardianship and Trusteeship (Ministerial) Regulations, Alta Reg 224/2009)
Saskatchewan Application made to court in proper form, followed by a hearing.

 

How is capacity determined?

British Columbia Capacity is not determined by whether or not the vulnerable adult can enter into a contract, nor whether they can manage their health, personal, legal, or financial care. (s.8)

Instead, capacity is determined by taking into account all relevant factors, including:

  • Communicated desire to have a supportive decision-maker.
  • Demonstrated choice and preference, or express approval or disapproval.
  • Awareness that making representation agreement will affect them.
  • Whether the adult has a relationship with the proposed supportive decision-maker that is characterized by trust.
Yukon
An adult may enter into a supported decision-making agreement if they understand the nature and effect of the agreement (s.6)
Alberta An adult is considered ‘capable’ when they: (s.4(1))

  1. Understand the nature and effect of a substitute decision-making authorization,
  2. Possess the ability to understand the information that is relevant to the decision, and
  3. Can appreciate the reasonably foreseeable consequences of making a decision, or of not making a decision.
Saskatchewan Capacity is determined by assessing the vulnerable adult’s ability to both: (s.2(c))

  1. Understand information relevant to making a decision, and
  2. To appreciate the reasonably foreseeable consequences of making a decision, or of not making a decision.

 

What legal rights and powers do supported decision-makers posses?

British Columbia A representative may help the vulnerable adult they are assisting make decisions affecting their personal care and with the routine management of the adult’s financial affairs (s.7(1))

A representative may authorize the vulnerable adult’s admission to a care facility, if the care facility is a family care home, group home for the mentally handicapped, or a mental health boarding home (s.7(2))

A representative has the right to the adult’s records related to their area of granted authority. (s.18)

Yukon
Except when otherwise specified, an associate decision-maker assists a vulnerable adult with: (s.5(1))

  1. making and expressing decisions
  2. assisting the adult to obtain relevant information
  3. understanding the relevant information and considerations
  4. expressing the adult’s wishes and decisions, and communicate the decisions
  5. endeavouring to ensure the adult’s decisions are implemented
Alberta A supportive decision-maker may do all that is necessary to give effect to decisions of the assisted adult in respect to personal matters (any matter, relating to the personal care of the adult, except financial matters), and may all that is necessary in order to give effect to the decisions made by the adult. (s.9(1))

A supportive decision-maker has the right to collect information about the adult that is relevant to the decision-making process and to assist the adult in understanding the information. (s.4(2)(a)

Saskatchewan Duties are assigned by the court according to the needs of the adult – as determined during the initial assessment phase of the application.

 

What kinds of decisions can be covered by a supported decision-making agreement?

British Columbia A representative may help the adult make decisions, or make decisions for the adult, on: (s.7)

  1. the adult’s personal care
  2. the routine management of the adult’s financial affairs (payment of bills, receipt of income, purchase of food, accommodations, and other services necessary for personal care, making investments)
  3. major and minor health care
  4. obtaining legal services for the adult
  5. admission to a family care home, group home for the mentally handicapped, or mental health boarding home
  6. any other issue relating to personal or health care of the adult otherwise specified in the agreement
Yukon
The scope of the decisions for which an associate decision-maker may assist a vulnerable adult are entirely decided by the contents of the supported decision-making agreement. (s.9(1)(b)-(c))
Alberta A supportive decision-maker may help a vulnerable adult make and communicate decisions with respect to “personal matters”, defined as: (s.1(bb))

  • the adult’s health care
  • living arrangements, and decisions about daily living
  • employment, education, vocational training
  • social and recreational activities
  • carrying on legal proceedings that do not primarily relate to the property of the adult
Saskatchewan A co-decision-maker may help a vulnerable adult make and communicate decisions with respect to personal care or property, such as: (s.15)

  1. living arrangements and decisions about daily living
  2. consent to health care
  3. employment, education, vocational training
  4. social and recreational activities
  5. anything related to the adult’s estate (only property co-decision-maker: s.42)