In this and the next two sections we highlight a number of risks that a legal, policy and practice framework to support the exercise of legal capacity must account for. We suggest that an institutional framework for safeguarding decision-making processes that enhances, protects and promotes an equal right to legal capacity should be based on three guiding principles:
· Respect for autonomy in decision-making
· Respect for personal dignity
· Safety and the duty to protect
The CRPD recognition of the right to legal capacity without discrimination on the basis of disability requires a re-balancing of these principles in the direction of maximizing autonomy, and preventing the traditionally paternalistic approaches towards people with disabilities and older adults in the name of safety and protection. Safeguards are necessary to promote the integrity and utility of each of the decision-making statuses to ensure that people are not unnecessarily denied a decision-making status that would more effectively enable them to enjoy and exercise their legal capacity. Moreover, there may be a particularly high risk of abuse when the person has a disability or is an older adult as isolation and/or limited financial and other resources often come into play with these groups.
Safeguards must be designed to protect and respect the integrity of all aspects of decision-making. They must also take into account the overarching principles which guide our framework, being respect for autonomy, respect for personal dignity and protection against abuse and neglect. In order to promote and protect legal capacity without discrimination on the basis of disability, there are four main areas to be safeguarded:
· Safeguarding the integrity of the decision-making process
· Safeguards to ensure appropriate decision-making status is recognized, accommodated and supported
· Safeguards where decisions fundamentally affect personal integrity
· Safeguarding against serious adverse effects, including neglect and abuse
In this section we address the first three areas of safeguards. Given the particular complexity of safeguarding against serious adverse effects and at the same time respecting the right to legal capacity without discrimination, we devote the next section to this area on its own.
A. Proposed Institutional Framework for Safeguarding Integrity of Decision-making Processes
We propose eight main features of a system to safeguard the integrity of decision-making processes that maximize exercise and enjoyment of the right to legal capacity without discrimination on the basis of disability:
1. Legislated Framework for Legal Capacity and Decision-making Supports
The CRPD recognizes a right to legal capacity, and the obligation of States Parties to ensure supports are available to exercise legal capacity. Indeed many other Articles in the CRPD reference State Parties obligations to provide for needed supports to realize recognized rights. A legislative framework outlining supports and services benefits would give full effect to these obligations. Ideally, a legislative framework would mandate provision of supports needed for people to exercise legal capacity, and would provide for the institutional framework outlined in this section. A legislative mandate for these supports would also give effect to the interdependence we outline in the previous section between third party duties to accommodate in decision-making processes, and the role of governments to make reasonable efforts in providing supports beyond the point of undue hardship to these parties. In the Canadian context, such legislation would likely fall primarily within the powers of provincial and territorial governments.
2. Legislated Duties and Liability of Representatives and Facilitators
Representatives and facilitators are in a fiduciary relationship with the person. Essential duties of representatives and facilitators include:
Act diligently, honestly and in good faith;
Act in accordance with all applicable legislation and any Administrative Tribunal orders;
Act in accordance with any relevant agreements;
Keep information about the adult, and his/her affairs, confidential;
Keep records in relation to all aspects of their role; and,
Involve supportive family members and friends.
In the British Columbia Representation Agreement Act representatives who comply with the legislated duties would not be liable “for injury to or death of the adult or for loss or damage to the adult’s financial affairs, business or assets. We recommend comparable but more expansive protections and recommend the following language:
Representatives and facilitators who comply with all legislated duties would not be liable for any injury death, loss or damage that results from actions they have taken in their role as representatives or facilitators.
A monitor is a person whose role would be to protect the decision-making rights of the adult and oversee the work of the representative or facilitator. More specifically, monitors must ensure that the representative or facilitator complies with all legal duties expected of them. They can be appointed by the one who creates the role of representative/facilitator. This will usually be either the person whose decision-making status is affected or the Administrative Tribunal (outlined below).
Monitors should be required to make reasonable efforts to determine whether the representative or facilitator is complying with their legal duties. Monitors may require the representative or facilitator to produce accounts and records. If the monitor finds wrongdoing, either intentional or not, he/she should make all attempts to resolve it with the representative/facilitator and the person. However, if these efforts fail, resort should be had to the Administrative Tribunal, whose job it will be to adjudicate such disputes.
The monitor role could be modeled after that created in British Columbia’s Representation Agreement Act, with necessary modifications, taking into account the successes and limitations of that system.
4. Community-based Resource Centre
People whose decision-making status is in issue, as well as third parties with whom they interact, require a resource to provide information and assistance with the practicalities of the accommodation process and accessing of supports. To this end, a community based resource centre must be established in legislation. It should be government funded but at arm’s length, and run by a board of directors, the majority of whom are people with disabilities. The Nidus Personal Planning Resource Centre and Registry in British Columbia is an example of such a resource centre. However, its role and impact are limited by the absence of legislative authority for its existence.
An important role for the Resource Centre would be to create and maintain a registration system. The system would keep track of every supported and facilitated decision-making arrangement in existence, including names of representatives, facilitators and monitors. This allows third parties to satisfy themselves that people who are acting as representatives or facilitators, prima facie, have legitimate authority to do so.
Examples of registration systems are:
· Nidus Personal Planning Resource Centre and Registry in British Columbia operates a centralized registry for representation agreements and enduring powers of attorney (www.nidus.ca); and
· Registration systems in Quebec. There are two types of Quebec mandates (planning documents). “Notarized mandates” are registered with the Chambre des notaries (http://www.cdnq.org) and registration of “mandates before witnesses” is done with the Barreau du Quebec’s Registre des mandats.
5. Legal Capacity and Support Office
It is not an uncommon experience for people with disabilities and older adults to experience isolation and abuse. A Legal Capacity and Support Office must exist to address these concerns. It would have a dual role, not dissimilar to some roles of Ontario’s Public Guardian and Trustee. It would be required to investigate allegations of serious adverse effects as defined in Section VI.A below as well as act as a facilitator or monitor of last resort. Each of these roles would be undertaken in conjunction with appropriate input and direction from the Administrative Tribunal. One role of the Legal Capacity and Support Office will be to arrange for supports as needed to address situations where serious adverse effects are occurring or may occur and there is reason to believe that a person’s ability to make and/or act on their decisions will be enhanced by such supports.
6. Administrative Tribunal with a Focus exclusively on Decision-Making
The role of the Administrative Tribunal would be to have exclusive jurisdiction ove