How do we decide who gets what decision-making supports?  We do not want to establish regimes where supports are mis-allocated, or imposed on people who do not want or need them.  Their particular way of exercising and enjoying their legal capacity could, otherwise, be at risk.  In other words, there is a basic question of distributive justice to be grappled with in the allocation of decision-making supports and accommodations.

To assist in conceptualizing a fair allocation of supports for the exercise of legal capacity, it is helpful to draw on the distinction between types of decision-making status that is already emerging in Canadian law.  In Part One, we outlined the emergence in both Canadian jurisprudence and legislation of new forms of decision-making status beyond the traditional binary distinction between acting legally independently with no support, and being placed under a substituted authority.  Drawing on these developments, and the conceptual framework we introduced in the preceding section (of a minimum threshold and decision-making capability) we outline in this section a new schema of types of status that is informed by the paradigm shift of the CRPD and a broader account of decision-making capability.  Each of the statuses imply a particular combination of decision-making abilities and supports and accommodations.  While the actual range of individual decision-making abilities and needed supports and accommodations could no doubt be drawn out on a continuum, our framework suggests that legal capacity is enjoyed and exercised in substantially different ways depending on two main factors:

·           Whether or not a person’s particular decision-making abilities means that they need another person to help communicate and represent their will or intention to others;

·           Whether or not a person meets the minimum threshold as defined above – where at least one other person can reasonably understand the person’s will and/or intention, and communicate that to others for the purposes of a decision-making process.

With these factors in mind, we propose three main decision-making statuses to be recognized in law.

 

A.        Legally independent Status:  a Re-formulation of the Understand and Appreciate Test


This is the status usually articulated in moral philosophy and the law, essentially the ‘freely contracting agent.’  This is the status in which an individual is recognized as able to act alone – give consent on his or her own, enter a contract on his or her own, etc.  The defining feature of this status is that the person understands information and appreciates the consequences of his or her decision, is able to communicate that understanding and intentionality to a third party in a way that party understands, and is free of coercion from other parties.  That said, those acting in a legally independent manner may legitimately call on the support/assistance of others as needed in the various considerations that go into making a decision.  What defines this status, however, is that the person makes the decision exclusive of any other formal representations by others acting in a support role to the person in the decision-making process.   

The criterion for acting in a legally independent status is defined by what we propose as a re-formulated ‘understand and appreciate’ test; that is, in a legally independent status there is reasonable evidence that the person:

·           has the ability, by him or herself or with assistance, to understand information that is relevant to making a decision; and

·           has the ability, by him or herself or with assistance, to appreciate the reasonably foreseeable consequences of a decision [169]

This does not mean that people in a supported decision-making status do not necessarily meet such a test.  It does mean that if a person does not meet the test, they are either in a supported or facilitated decision-making status.

 

B.       Supported Decision-making Status


This status is based on what is articulated in moral and feminist philosophy as ‘relational autonomy’ and discussed in the earlier section on negative and positive approaches to liberty.  It starts from the assumption that no self is isolated, but is rather essentially an intersubjective creation and accomplishment made possible by the ‘ethics of care’ of others.  While we all make decisions with the assistance of others, this intersubjectivity and interdependence is more visible for some older adults and adults with disabilities than others.  This group needs support from others to communicate, express and represent themselves to third parties, and/or to process information.  They cannot, or choose not, to manage these activities on their own. 

What distinguishes this status from the other two is that individual support persons are appointed in some manner in order to assist the individual in making decisions and/or representing and communicating the person’s will and/or intention to others.  In a supported decision-making status, support persons or representatives could be appointed in four ways:

1)    an individual could appoint those he/she wishes to assist or represent him/her in decision-making (as under the Representation Agreement Act of British Columbia);

2)    where a person cannot manage the appointment process, or adequately understand the process, an individual or group of individuals could be recognized/appointed by an administrative tribunal, upon an application by the individual or group.  The requirement would be that the individual or group have a trusting relationship with the individual and be committed to the person’s well-being and to assisting and representing them on the basis of their best understanding of the person’s will and/or intention;[170]

3)    where an individual does not have anyone in a close personal relationship that they can appoint or who would apply for appointment, and where this type of decision-making status would best enable a person to exercise their legal capacity, a tribunal or court could appoint a co- or supporting decision maker as provided under the legislative schemes in Alberta and Saskatchewan as outlined above.  In these cases, the individual can communicate sufficiently that a co-decision maker can understand the person, but not sufficiently for third parties to be confident, in their absence, that the person understands information and appreciates the nature and consequences of a decision or agreement.

4)     where an individual(s) has been acting in a de facto manner to support a person in making decisions, that person may be legally recognized as a supporter upon swearing an affidavit that states they have sufficient personal knowledge to understand the person’s ways of communicating their will and/or intention and commit to taking any consequential actions to give effect to the person’s will and/or intention and they agree to meet all the legal duties associated with the supported decision-making status and to acting as a fiduciary.[171] As we discuss below in Section VI, a de facto arrangement cannot be established in a situation of serious adverse effects.

The minimum threshold for exercising legal capacity through a supported decision-making status is:

An individual can act in a way that at least one other person who has personal knowledge of the individual:

·         can reasonably ascribe to the individual’s actions, personal will and/or intentions consistent with the person’s identity; and

·         can take reasonable consequential actions to give effect to the will and/or intentions of the individual, which respect the individual’s dignity of risk.

Recognizing the role of support and representation in a supported decision-making process shifts the focus of competency from the individual, to the decision-making process.  A competent decision-making process is one in which supporters and representatives are guided by the will and/or intentions of the individuals in ways that give the individual decision-making capability.  Guidelines are needed to assist supporters and representatives in one or more of six tasks that are carried out in supporting a person who meets the minimum threshold to engage with others in decision-making processes, but who does not meet the test of legal independence.   The following tasks would be carried out in supporting a person in this status: 

·         ascribing will and/or intention to a person’s sometimes unique behavior and forms of communication;

·         describing to or interpreting for others what that behavior means or is communicating in terms of a person’s will and/or intention;

·         narrating to others how this particular expression of will and/or intention is part of a person’s identity and how it makes sense in their life story – thus assisting others to understand the person’s will and/or intention and the decisions that would flow from it as ‘reasonable’ in the circumstances;

·         translating the person’s will and/or intention into consequential transactions and decisions to give them effect in relation to a particular circumstance or decision that needs to be made;

·         communicating t