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 
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;
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. 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 to others decisions that will be made based on the person’s will and/or intentions; and
· assisting the person in making decisions and transactions that give effect to their will and/or intentions – i.e. by assisting them in gaining some understanding and appreciating the nature and consequences of a decision or transaction.
In order to ensure competent decision-making processes for individuals in this status, supporters would have a duty to follow certain principles and guidelines for playing the roles identified above. We suggest adapting these principles and guidelines from those in the Ontario Substitute Decisions Act and Health Care Consent Act for guiding substitute decision makers, and in the B.C. Representation Agreement Act for guiding representatives in supporting or making decisions for others. It is our view that if we accept the minimum threshold of human agency as described above, that persons with such agency are not, in fact, [mentally] incapable as currently defined under Ontario legislation. Nonetheless, they may need assistance and support, which may take the form of representation, in order to complete the needed transactions to give effect to their will and/or intentions. Provisions exist in the Ontario Substitute Decisions Act and the Health Care Consent Act which require that substitute decision makers make decisions in accordance with wishes and/or instructions that the [mentally] incapable person made prior to their incapability, and that take into consideration any current wish which can be ascertained. Along with the duties described in s.16 of the B.C. Representation Agreement Act, they provide a good starting point for articulating the duties of supporters and representatives for those in the supported decision making status. We adapt the duties for supporters and representatives from these three statutes in order to outline the kinds of guidelines for assisting a person in this status. In assisting and representing a person in a supported decision-making status to make decisions, and in taking consequential actions to give effect to their will and/or intentions, supporters and representatives have the following duties:
· Consult, to the extent reasonable, with the adult to determine his or her current wishes.
· Be bound in decision-making by the person’s wishes or instructions that are applicable to the current situation and that were expressed by the person in a prior planning document.
· Be guided by any wishes or instructions that the supporters and representatives have ascertained the person has expressed in the past and which they believe would apply in the current situation.
· Be guided by the person’s wishes and instructions expressed in the current situation.
· Use reasonable diligence in ascertaining any such wishes and instructions.
· Comply with a person’s wishes and instructions in ways that respects their dignity of risk.
· In translating a person’s will and/or intention into needed decisions and transactions, supporters and representatives are likely to have a greater or lesser extent of discretion depending on how directive the person’s expression of will and/or intention is. Where specific directions are lacking about the transactions required to give the overall intention effect, then the supporters and representatives must consider how the person would assess their own best interests in deciding among the range of options available.
On first blush, the duties of supporters and representatives to a person in a supported decision-making status appear to be largely the same as the duties of substitute decision makers. One might ask what difference, if this is the case, does it make whether or not a person is in a supported decision making or substitute status? However, in looking more closely at the legislation and the concept of supported decision-making as a status to exercise legal capacity, there are two important differences. First, the substitute decision maker is not, in all cases, bound to comply with the person’s wishes. In the case of the Ontario Substitute Decisions Act, the substitute decision maker is bound to comply where the wish or instruction is a prior one – i.e. where it is assumed it was made while the person was legally capable. However, the substitute decision maker is not bound to comply with a current wish or instruction made by a person who is found legally incapable under the Act. By contrast, in the case of supporters or representatives assisting a person who is in a supported decision-making status, they are always bound to be guided by the wishes and instructions of the individual. Second, by virtue of a requirement that the wishes of a person in a supported decision-making status must be followed, people become subjects of their own lives, rather than objects of interventions. This is consistent with what Quinn refers to as the “profound message” of the Convention – “that persons with disabilities are not ‘objects’ to be managed or cared for, but human ‘subjects’ enjoying human rights on an equal basis with others.” A supported decision-making status makes legal capacity and recognition of oneself as a subject much more widely available.
C. Facilitated Decision-making Status
By ‘facilitated status’ we mean a status in which others facilitate the making of needed decisions. This status is envisioned for individuals in the following circumstances:
People with significant disabilities who are not able to act legally independently, and who have no other people in their lives who have personal knowledge about them sufficient to understand their ways of communicating, their will and/or intentions as a basis for decision-making (as in a supported status).
Individuals who have indicated wishes in a prior planning document, like that for a power of attorney, which is triggered when a person is not able to act legally independently or through a supported decision-making status.
Individuals who did not establish prior planning documents, who do have others in their lives who know them well and are committed to acting for them, but where these supporting others are unable to discern the person’s current will and/or intentions sufficient to guide decision making – for example, people who have experienced traumatic injury, illness or a dementia which has left them in a coma, or with dramatically impaired cognitive and communication function.
There are two methods by which a facilitated status could be created, as follows:
· A facilitator could be appointed by an administrative tribunal;
· A facilitator could be created by a planning document (e.g. power of attorney, or a ‘Ulysses Agreement’) in which a decision-maker is appointed at a time when the individual was acting legally independently or in a supported decision-making status in respect of that appointment.
A person could be in a facilitated status in respect to some or all areas of their lives, including health and other individual decisions, financial decisions and situations in which serious adverse effects are occurring.
Unlike the common parlance in relation to capacity laws, the fact that a person is in a facilitated status would not define them as being ‘legally incapable’ and would not represent a statement or judgment about their cognitive status or abilities.
As described above, some people may be in a facilitated status because they have no other persons in their lives who know them well enough to understand the particular ways they communicate their will and/or intention sufficient to direct consequential action by others (the criterion for supported decision making). The understanding that others can provide in these situations is a form of assistance some individuals need to exercise their legal capacity, if not in a legally independent status, then in a supported decision-making status. However, this form of support is not like a communication technology that can be purchased and applied. It develops only in the context of a personal relationship that takes time to develop. Thus, individuals who are in a facilitated status because of a lack of relationships in their lives, would be owed a duty by the state under Article 12(3) to take measures to develop such relationships in their lives, as the basis for the support they need to maximize their legal capacity.
Facilitators would be duty-bound to facilitate the making of needed decisions on the basis of any knowledge they may have, or could reasonably be expected to acquire, about the person’s will and/or intentions previously expressed. If there is no such information available, or if the information is too limited to be usefully instructive with respect to particular decisions, the principle of ‘best interests’ would apply. Again, the Ontario Substitute Decisions Act and the Health Care Consent Act provide some guidelines for substitute decision makers to act in the best interests of a person, which would be appropriate for facilitators as well.
The criteria for best interests would be:
Based on the facilitator(s)’ best understanding of the person’s prior wishes, instructions and values, what decision would best to:
o improve the quality of the person’s life;
o prevent the quality of the person’s life from deteriorating,
o reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate; or
o benefit the person in ways that outweigh the risk of harm, in comparison to an alternative decision.
We propose that these three decision-making statuses define the basic boundaries by which legal capacity is exercised in distinctive ways. They are not fixed statuses. An individual may move from one to the other and back again, depending on the evolution of their decision-making abilities and needs for support, in relation to particular decisions or types of decisions. As well, these statuses would be consistent with the functional test of decision making capability as described above. That is, the status would be adopted or applied in respect of a particular decision, or if an individual so chose in respect of a range of decisions. Supporters and facilitators designated for either the supported or facilitated decision-making status would be duty-bound to not impose the status if the individual wished to be supported in other ways to exercise their legal capacity and could be found able to do so.
D. An Inclusive Principle for Recognizing Legal Capacity: Linking Types of Decision-making Supports and Decision-making Status
A person with a disability in any of three decision-making statuses may need one or more of the six types of supports to exercise their legal capacity. The cluster of supports needed will vary from person-to-person depending on their particular decision-making abilities and the nature of decisions to be made. However, which type of supports are used, and how, can substantially alter the decision-making relationship and process. If too few, or the wrong supports are accessed, autonomy may be unnecessarily restricted. The issue of securing justice in administration of legal capacity law shifts substantially in this analysis from an exclusive to an inclusive approach. Rather than an exclusive focus on determining who can exercise their legal capacity independently, the analysis shifts to how to fairly allocate supports and accommodations to ensure that each person exercises and enjoys their right to legal capacity in ways that maximize their autonomy. Our analysis suggests a foundational principle on which to guide law, policy and practice that recognizes an equal right to legal capacity as provided for in the CRPD:
People enjoy and exercise their right to legal capacity differently depending on a person’s unique characteristics. A person’s autonomy and legal capacity is maximized equally to the extent that they access the supports and accommodations they need to exercise their legal capacity; and to the extent that supports and accommodations adapt to each person’s evolving decision-making abilities and capabilities.
‘Fair’ allocation in this formulation is allocation that ensures persons receive the type and extent of supports they require to exercise their legal capacity – not more, not less.
This principle for recognizing the right to legal capacity articulates both a positive and negative liberty approach to autonomy. Having one’s autonomy respected, regardless of disability, expands the realm of negative liberty for a group of people for whom it has so long been denied. That is, it establishes that people have the legal capacity to say ‘no’ to others who would impose treatment or confinement, or a particular service upon them in the name of protection. At the same time, it recognizes that the space for exercising autonomy is not devoid of intervention by the State and other parties; that it is not defined as the negation of any intervention or regulation. Rather, autonomy is a social and inter-dependent accomplishment that rests on the positive duties of the State, and of other parties to the decision-making process in any particular circumstance regulated by law.
The principle also makes clear that as a person’s abilities evolve, supports and accommodations should be adapted, and the decision-making status through which they exercise and enjoy their legal capacity may also change with respect to some or all decisions they make. No longer should legal capacity legislation identify a ‘presumption of capacity,’ for which procedures are outlined about how to remove legal capacity when a person is found without the requisite [mental] capacity. Rather, legal capacity legislation should incorporate an ‘assumption’ of legal capacity as articulated in the principle above.
Figure 1 presents the dynamic nature of decision-making capability – as a relationship between decision-making abilities, decision-making supports and accommodations, and decision-making status. People move between statuses as abilities, supports and accommodations evolve.
Figure 1 – Maximizing Legal Capacity
E. Proposed Legislated Right to Legal Capacity, and Newly-formulated Presumption of Legal Independence
Based on the framework of decision-making supports and statuses presented in this section, we propose a legislated recognition of the right to legal capacity without discrimination on the basis of disability. This means that while legal capacity cannot be removed, the decision-making status through which one exercises it can be changed. As well, to ensure that no individual is denied the opportunity to be considered able to exercise their legal capacity through a legally independent decision-making status, we recommend that legal capacity legislation incorporate a newly-formulated principle, based on the minimum threshold of legal independence defined above, to the effect that:
All persons of majority age are presumed to be capable of acting legally independently, where this means the person has the ability, by him or herself or with assistance, to understand information that is relevant to making a decision; and to appreciate the reasonably foreseeable consequences of a decision.
This statement of presumption is distinct from the current presumption of [mental] capacity in most current legal capacity law. The difficulty with the current formulation from the perspective of the CRPD is twofold. First, a ‘presumption’ is rebuttable; it assumes that, in this case, the legal recognition and associated right can be withdrawn and restricted. Second, positioning mental capacity as a criterion of legal capacity appears to us to violate the intent of Article 12. Alternatively, the proposed presumption stated above is a presumption only that a person exercises their legal capacity in a legally independent manner. Stated this way, it provides that if this presumption is rebutted, i.e. that a person cannot exercise legal capacity through this status, he/she will exercise it through another status. In either case, he/she will not lose their legal capacity.
F. Status Determinations and a ‘Functional Assessment’ of Decision-making Capability
In making status determinations, a ‘functional assessment’ of decision-making capability would be needed to deal with situations where there is reasonable question as to whether a person has the capability to understand and appreciate, even with assistance, the nature and consequences of a decision; or if a person meets the minimum threshold for supported decision making. The assessment should explore the following questions:
1) Does the person appear to have the decision-making abilities to understand information and appreciate the nature and reasonably forseeable consequences related to a particular decision?
2) If not, would additional supports and/or accommodations enable the person to satisfy (1) above? Have the supports been put in place to assist this person to understand and appreciate the nature and consequences of his or her intention and to engage and communicate in this decision-making process?
3) If not, can at least one other person who has personal knowledge of the individual reasonably ascribe to his or her actions: personal will and/or intention; memory; coherence of the person’s identity through time; and communicative abilities to that effect?
4) Are other parties to this decision reasonably accommodating the person?
5) Has the State provided sufficient supports to maximize the person’s decision-making capability?
It is important to distinguish this approach to functional assessment of decision-making capability, from the ‘functional test’ of legal capacity as discussed above, in relation to other measures of capacity like the ‘outcome’ and ‘status’ approach. Our proposed approach to assessment focuses on what accommodations and supports a person requires to manage the decision-making process in a way that maximizes their legal capacity, given their unique decision-making abilities. It is not used to determine whether or not a person has legal capacity, but rather the status through which they will exercise it, when disputes arise in this regard among parties in a decision-making process.
This section has outlined a framework of decision-making statuses to exercise legal capacity. In order to maximize legal capacity equally as the CRPD requires, we suggest that the crux of the issue will be to ensure that individuals are exercising their capacity through the most appropriate status. As we have suggested above, where there is some question about whether a person is acting through the most appropriate status, there will be need for a functional determination of decision-making capability. This will necessarily involve an inquiry into whether all needed supports and accommodations are being provided. A number of challenges may arise in such an inquiry, including determining whether or not a third party is providing reasonable accommodations; the extent to which an individual is able to access needed supports through state provision; whether or not an individual can exercise their legal capacity in a legally independent status or requires some other status; and a person’s intentions if they are supported by representatives with different views and interpretations.
The next section begins to address these challenges and issues by exploring the principles and nature of the duties to accommodate and provide supports as recognized in the CRPD. Subsequent sections look at safeguards that need to be in place to address disputes that may arise with respect to the nature and type of decision-making supports a person is able to access through accommodation from third parties or through state provision.
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