Towards an Inclusive Framework for the Right to Legal Capacity. in Nova Scotia

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1 Towards an Inclusive Framework for the Right to Legal Capacity in Nova Scotia A Brief Submitted in Response to: The Law Reform Commission of Nova Scotia s Discussion Paper on the Powers of Attorney Act Submitted by Nova Scotia Association for Community Living (NSACL) & Canadian Association for Community Living (CACL) June 2014

2 Table of Contents Introduction... 1 Summary of Recommendations by NSACL and CACL Legal capacity must not be equated with mental capacity Define capacity to act legally independently and distinguish it from legal capacity Recognize supports to exercise legal capacity Establish proactive safeguards, assistance to donors, public education and adult protection Recognize within the Powers of Attorney Act the interface with supported decision making and consider measures for a broader legal framework for supports to exercise legal capacity Need for an independent tribunal or review board to address disputes related to legal capacity Conclusion Appendix A Canadian Association for Community Living, A Statutory Framework for the Right to Legal Capacity and Supported Decision Making... 20

3 Introduction The Nova Scotia Association for Community Living (NSACL) and the Canadian Association for Community Living (CACL) welcome the opportunity to respond to the comprehensive set of proposals and questions presented by the Law Reform Commission of Nova in its Discussion Paper on the Powers of Attorney Act. While the Discussion Paper sets out a wide range of proposals and questions for reform, NSACL and CACL restrict our joint comments to six main points related to the Discussion Paper: Need to distinguish between legal capacity and mental capacity; Recognize capacity to act legally independently Recognize supports to exercise legal capacity Implications for safeguards, assistance to donors, public education and adult protection Need for a legal framework for supported decision making, and the interface with provisions for appointing powers of attorney. Need for an independent tribunal or review board to address disputes related to legal capacity. Following a summary of our recommendations, a discussion is provided of each of these six main points and the rationale for our recommendations. 1

4 Summary of Recommendations by NSACL and CACL 1. Consistent with the UN Convention on the Rights of Persons with Disabilities (CRPD), and the General Comment on CRPD Article 12 released by the Committee on the Rights of Persons with Disabilities, that the Powers of Attorney Act recognize the right to legal capacity without discrimination on the basis of mental or physical disability, including perceived or actual deficits in mental capacity. Furthermore, consistent with international law, that the Powers of Attorney Act define legal capacity as the power to engage in transactions and in general to create, modify or end legal relationships and ensure all the provisions of the Act are informed by and consistent this recognition. 2. That instead of the principle of a presumption of capacity, the Powers of Attorney Act establish the principle of a presumption of capacity to act legally independently, with supports and accommodations as may be needed to exercise and enjoy the right to legal capacity. 3. That the Powers of Attorney Act, instead of defining capacity define capacity to act legally independently, as follows: The capacity to act legally independently means a 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. 4. That the Powers of Attorney Act enhance adult protection powers and services as outlined in the Discussion Paper, and that a separate authority in the form of a legal capacity and support office be established to provide public education, access to needed supports, independent advocacy, and other measures as may be needed to ensure access to justice for donors of powers of attorney and other adults who may require support to exercise their legal capacity. 5. That the Powers of Attorney Act provide for a person who may use supported decision-making arrangements to appoint powers of attorney provided such a person can demonstrate to an independent tribunal or review board that he/she has at least some appreciation and understanding, by him or herself, of the nature and consequences of the decision. 2

5 Further, that the Law Reform Commission of Nova Scotia undertake to advise the Government of Nova Scotia on a broader legal framework to recognize, protect and promote the right to legal capacity and supported decision making. 6. That the Powers of Attorney Act provide for the Governor in Council to establish a Review Board or Tribunal to hear and consider applications under the Act related to questions of capacity, supports in decision making, interventions and steps taken for adult protection and any other matters related to ensuring procedural fairness in the recognition, protection and promotion of the right to legal capacity. 1. Legal capacity must not be equated with mental capacity NSACL and CACL appreciate the acknowledgment in the Discussion Paper of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its recognition of the right to legal capacity, and the supports that may be required for its exercise and enjoyment. Under the United Nations Convention on the Rights of Persons with Disabilities33 and the United Nations Principles for Older Persons, Canada is obliged to ensure that all persons are provided with the support they need to exercise their legal capacity. This includes respecting the principle that the exercise of one s autonomy does not require independence of support from others. As well, while EPAs provide for substitute decision-making, donors are entitled to participate in decisions that affect them as far as they are able. 1 However, this acknowledgment is at odds with the Discussion Paper s definition of legal capacity, which it equates with mental capacity. Legal capacity - A person s capability or fitness to perform a legal act, such as granting a power of attorney. Sometimes referred to as competence. Sometimes indicates formal criteria, such as a minimum age (e.g., age of majority). Often used in relation to standards of mental capability; i.e., the ability to understand and appreciate the consequences of a certain act, such as making a will or power of attorney. The law will not enforce a power of attorney where it is shown that the donor did not have sufficient mental capacity - that is, the donor was not able to understand and appreciate the nature and effect of making the power of attorney. In this Discussion Paper we generally use capacity to refer to legal capacity, unless otherwise specified. 2 1 Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at 31. 3

6 In fact, this equation is now in direct conflict with the authoritative interpretation of legal capacity provided by the UN Committee on the Rights of Persons with Disabilities, the international body mandated with interpreting the CRPD. In its first General Comment, released in April 2014 and after the Discussion Paper had been published, the Committee made clear that legal capacity is not to be equated with mental capacity, precisely because the CRPD recognizes the obligation of States Parties to ensure access to supports to exercise legal capacity, as the Law Reform Commission has also acknowledged. The Committee states the distinction as follows: Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise these rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors. In the past, legal instruments such as the UDHR [Universal Declaration on Human Rights] (Article 6), the ICCPR [International Covenant on Civil and Political Rights] (Article 16), and CEDAW [Convention on Elimination of All Forms of Discrimination Against Women] (Article 15) did not specify the distinction between mental and legal capacity. The CRPD (Article 12) now makes it clear that unsoundedness of mind and other discriminatory labels are not legitimate reasons for the denial of legal capacity (legal standing and legal agency). Under article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity. 3 In arriving at a definition of legal capacity, we suggest guidance from the background paper prepared by the Office of the U.N. High Commissioner for Human Rights at the time of the negotiations leading up to the adoption of the CRPD. Based on its review of the recognition of the right to legal capacity in both common law and civil code jurisdictions, the Office defined legal capacity as follows: Thus, legal capacity includes the capacity to act, intended as the capacity and power to engage in a particular undertaking or transaction, to maintain a particular status or 3 United Nations, Committee on the Rights of Persons with Disabilities, General comment No 1 (2014): Article 12: Equal recognition before the law, at para 12. 4

7 relationship with another individual, and more in general to create, modify or extinguish legal relationships. 4 The CRPD Committee has adopted this approach to definition in its General Comment on Article 12 and we recommend a similar approach be used in the Powers of Attorney Act. Recommendation 1: Consistent with the UN Convention on the Rights of Persons with Disabilities (CRPD), and the General Comment on CRPD Article 12 released by the Committee on the Rights of Persons with Disabilities, that the Powers of Attorney Act recognize the right to legal capacity without discrimination on the basis of mental or physical disability, including perceived or actual deficits in mental capacity. Furthermore, consistent with international law, that the Powers of Attorney Act define legal capacity as the power to engage in transactions and in general to create, modify or end legal relationships and ensure all the provisions of the Act are informed by and consistent this recognition. 2. Define capacity to act legally independently and distinguish it from legal capacity Given that international law now makes clear that legal capacity cannot be equated with mental capability or fitness to act, where does this leave the Discussion Paper s conceptual starting points and specific proposals which nonetheless rest on such an equation? To summarize briefly the Discussion Paper s starting points: There should be a presumption of capacity A functional approach to assessing capacity should be used 4 United Nations, Office of the United Nations High Commissioner for Human Rights Legal Capacity - Background conference document prepared by the Office of the United Nations High Commissioner for Human Rights online: (last accessed 5 April 2014). 5

8 Supports in exercising capacity should be recognized The definition of capacity should be based on the understand and appreciate test. To begin, NSACL and CACL recognize and appreciate that one of the motivating factors for the Law Reform Commission s initiative is to address financial abuse that donors of powers of attorney for property often fall victim to in such an arrangement. One of the safeguards is to ensure that there is a clear definition of capacity/incapacity which can serve to trigger the activation of the power. Moreover, we agree that the administrative burden and intrusion on autonomy that could come with formal assessments of capacity to make a power of attorney mitigates against proposals for such formality. The question, then and in light of the need to maintain a distinction between the universal right of legal capacity without discrimination on the basis of mental disability or impairment, and the capacity to make such an arrangement or the incapacity on which a springing or contingent power of attorney might be triggered is capacity to do what? We suggest that the Discussion Paper define capacity to act legally independently as the test for making a power of attorney (with a somewhat lower threshold for those with supported decision making arrangements as discussed in section 5 of this brief), and the related trigger for activation of a springing power attorney to be loss of capacity to act legally independently, even with support and accommodation as may be required 6

9 and chosen for this purpose. The presumption would not be of capacity as the Discussion Paper now proposes, as the term on its own confuses in light of recognition in international law of the right to legal capacity without discrimination on the basis of disability. Thus, in any particular case of springing or contingent powers of attorney, the question would not be has the person lost capacity?; but, rather, is the person no longer able to act legally independently with reasonable steps having been taken to provide supports and accommodation as might be needed to exercise legal capacity? CACL has undertaken an extensive review with a working group of legal experts to arrive at this distinction (see Appendix A), and the concept of capacity to act legally independently as an alternative to the mental capacity test found in most capacity law has received a thorough examination in the context of statutory and case law in a paper prepared for and published by the Law Commission of Ontario. 5 Moreover, we share with the UN Committee on the Rights of Persons with Disabilities the concern that what is increasingly appealed to as the functional approach to assessing capacity does not in fact solve the problem of the all or nothing approach to capacity assessment that the Discussion Paper assumes. In fact, its application can constitute discriminatory denial of legal capacity: The functional approach attempts to assess mental capacity and deny legal capacity accordingly. (Often based on whether an individual can understand the nature and consequences of a decision and/or whether she/he can use or weigh the relevant information.) This functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able 5 See Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Self- Determination (Toronto: Law Commission of Ontario, 2010), online: (last accessed 29 April 2014). 7

10 to accurately assess the inner-workings of the human mind and to then deny a core human right the right to equal recognition before the law when an individual does not pass the assessment. In all these approaches, a person s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity. 6 What is required, then, is adoption of a functional approach that is decision-specific and also incorporates identification and provision of supports to exercise legal capacity. Otherwise the functional approach reproduces the all or nothing problem with capacity assessment that it attempts to resolve. Recommendation 2: That instead of the principle of a presumption of capacity, the Powers of Attorney Act establish the principle of a presumption of capacity to act legally independently, with supports and accommodations as may be needed to exercise and enjoy the right to legal capacity. 3. Recognize supports to exercise legal capacity A definition of capacity to act independently must incorporate within it recognition of the supports which may be needed for its exercise. The Discussion Paper does recognize, consistent with the CRPD and with Canadian jurisprudence, that a person s need for support to exercise capacity to make decisions should not be a reason to find him/her incapable. However, the paper does not incorporate recognition of such assistance in its definition of capacity (or what we would now propose as capacity to act legally independently). For example, the Discussion paper states: Finally, we propose that the Act should include provisions to confirm that a person may have capacity to make a decision even if he or she requires support in order to do so. Support in this context includes having the nature and effects of a decision explained by someone else, and also in terms of requiring assistance to express him or herself. As the court observed in 6 United Nations, Committee on the Rights of Persons with Disabilities, General comment No 1 (2014): Article 12: Equal recognition before the law, at para 13. 8

11 Re Koch, it is to be remembered that mental capacity exists if the appellant is able to carry out her decisions with the help of others. 7 And it makes the following proposals for discussion: The Act should provide that a donor is presumed to be capable of making decisions in respect of a power of attorney. The Act should define capacity, for general purposes under the Act, as the ability to understand the nature and effects of a decision, at the time the decision is made. The Act should provide that a donor is not incapable by reason only that the donor may require the nature and effects of the decision, and relevant background information, explained to him or her. The Act should provide that a donor s way of communicating is not a basis for deciding that a donor is incapable. 8 NSACL and CACL are concerned that this approach to definition does not embed into the very concept of capacity to act the support that may be needed as specified in Re Koch, 9 quoted above. We would propose, instead, an approach similar to that of the Guardianship and Trusteeship Act of the Northwest Territories, consistent with our recommendation to define capacity to act legally independently rather than simply capacity. The Guardianship and Trusteeship Act217 of the Northwest Territories does recognize in its definition the potential role of decision-making assistance in enabling a person to meet the traditional understand and appreciate test. The legislation defines capable as follows: (a) The ability, by himself or herself or with assistance, to understand information that is relevant to making a decision ; and 7 Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at (1997) 33 OR (3d) 485, OJ No

12 (b) The ability, by himself or herself or with assistance, to appreciate the reasonably foreseeable consequences of a decision 10 [Emphasis added]. This approach is instructive in developing a definition of capacity to act independently that recognizes the essential role of supports in doing so. Recommendation 3: That the Powers of Attorney Act, instead of defining capacity define capacity to act legally independently, as follows: The capacity to act legally independently means a 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. 11 Regulations to the Act, or eventually a new statute on the right to legal capacity and supported decision making as recommended in section 5 below, should define supports and assistance. NSACL and CACL recommend for this purpose the approach proposed in CACL s framework, as follows: (a) individual planning, service coordination and referral; (b) independent advocacy; (c) communication and interpretive assistance; (d) facilitating a supported decision making arrangement; (e) peer support; (f) relationship-building assistance; (g) administrative assistance; (h) any other support or accommodation considered necessary to assist the adult in exercising control over his or her decisions, or to provide the adult with the conditions needed to develop or regain decision-making capabilities and to exercise his or her right to legal capacity; (i) any other good or service as may be prescribed by the regulations Guardianship and Trusteeship Act, S.N.W.T., 1994, c.29, s 12(1). 11 This definition is adapted from Canadian Association for Community Living, A Statutory Framework for the Right to Legal Capacity and Supported Decision Making (Toronto: Canadian Association for Community Living, 2014); and Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Self-Determination (Toronto: Law Commission of Ontario, 2010), 79-80, online: (last accessed 29 April 2014). 10

13 4. Establish proactive safeguards, assistance to donors, public education and adult protection NSACL and CACL appreciate the Discussion Paper s attention to the risk of abuse that some persons face in exercising their legal capacity, and are supportive of proposed measures to ensure greater access to justice through provision of legal aid and advice; and also to provide more inclusive provisions for adult protection in financial matters beyond the current criteria of age 65 and persistent mental incapacity. Informed by the framework for the right to legal capacity and supported decision making developed by CACL and its working group of advisors, we recommend that the functions for reporting and investigation of adult protection concerns be handled by a single authority. This office should be distinct, however, from a new function which would proactively support adults in making support arrangements to exercise their legal capacity, establishing powers of attorneys and personal directives, mediating conflicts and providing public education. Such functions could be incorporated in an office, and/or set of community agencies designated by the appropriate provincial Ministers (as recommended in the CACL framework in Appendix A), and could include those functions related to legal assistance as identified in the Discussion Paper. We would add to such an office functions of assisting people to arrange supports for exercising legal capacity, and provision of independent advocacy. The office could make 12 Canadian Association for Community Living, A Statutory Framework for the Right to Legal Capacity and Supported Decision Making (Toronto: Canadian Association for Community Living, 2014), at

14 arrangements for delivery of these services in situations where an adult s capacity to act legally independently may be in question, or may require provision of additional formal or informal supports. Such an office could work collaboratively with adult protection services to ensure that the principles of autonomy, dignity of risk, and support to exercise capacity, all of which are duly and appropriately recognized in the Discussion Paper, are upheld in any adult protection investigation. The statutory framework proposed by CACL and appended to this Brief examines how the adult protection function and what is referred to in that framework as the legal capacity and support office would function together in such instances (see Parts 8 and 9 in the framework in Appendix A). Indeed, it is our view that by incorporating the supports dimension into the definition of capacity to act legally independently, that additional safeguards will be available in situations where there are conflicting interpretations, for example, about whether a Power of Attorney should be activated or whether an adult has the capacity to revoke a Power of Attorney. The framework proposed here would address the concern about an all or nothing approach in capacity determinations, even those guided by a so-called functional approach, because it would require that the courts, attorneys, health professionals and parties inquire into whether all reasonable steps have been taken to ensure a person has access to the supports required to exercise his or her legal capacity independently. 12

15 Recommendation 4: That the Powers of Attorney Act enhance adult protection powers and services as outlined in the Discussion Paper, and that a separate authority in the form of a legal capacity and support office be established to provide public education, access to needed supports, independent advocacy, and other measures as may be needed to ensure access to justice for donors of powers of attorney and other adults who may require support to exercise their legal capacity. 5. Recognize within the Powers of Attorney Act the interface with supported decision making and consider measures for a broader legal framework for supports to exercise legal capacity NSACL and CACL appreciate and fully support the recognition in the Discussion Paper that some persons require specific support measures to exercise their legal capacity; the recognition of State Party obligations under the CRPD to enable access to such supports and to ensure that persons with disabilities enjoy equal rights to control property decisions: Canada has ratified the United Nations Convention on the Rights of Persons with Disabilities. Article 12 of the Convention provides that persons with disabilities have the right to recognition everywhere as persons before the law. The article provides that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Importantly, the Convention requires state parties to take positive measures to support persons with disabilities in the exercise of their legal capacity, to enact proportional safeguards to prevent abuse of persons with disabilities, and to ensure that persons with disabilities have the equal right control their financial affairs. 13 We also appreciate the review of legislation the Commission has undertaken with respect to provisions for supported decision making, and the characterization of supported decision making in the Discussion Paper: 13 Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at

16 Supported decision-making is in keeping with the state obligation to provide access by persons with disabilities to the support they may require in exercising their legal capacity as provided for in Article 12(3) of the Convention. Supported decision-making recognizes that with support, some individuals will be able to exercise their legal capacity and participate in the decisions that affect them The legal provision for support networks, then, can be an important means by which state parties can assist persons with disabilities to exercise their legal capacity. Supported decision-making ensures that individuals retain the right to participate in the management of their affairs. Individuals who require assistance in managing their financial affairs may be better served by a supported decision-making agreement, until such time as an EPA or guardianship order is absolutely required, if ever. 14 However, we disagree with the conclusion in the Discussion Paper that: The concept of supported decision-making is distinct from the grant of authority by a power of attorney, and is to that extent outside the scope of this project. 15 In fact, there is a crucial question of whether persons who may not fully meet the test of capacity to act legally independently without supports should be provided opportunity to appoint powers of attorney in the absence of formalized, statutory provisions for supported decision making. Even where such provisions might be in place in the future, there may be some individuals with formalized supported decision making arrangements who also wish to appoint powers of attorney to help manage affairs. NSACL and CACL believe that to deny persons with disabilities access to such a benefit would be a discriminatory denial of legal capacity. NSACL and CACL support the recommendations as put forward by CACL in its proposed framework for legal capacity and supported decision making which provides for persons with supported decision-making arrangements in place to appoint powers of 14 Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at Law Reform Commission of Nova Scotia, Discussion Paper: Powers of Attorney Act (Halifax: Law Reform Commission of Nova Scotia, 2014) at

17 attorney where such persons can demonstrate to an independent and competent tribunal or review board that they have at least some understanding and appreciation of the power being granted. Specifically, CACL proposes the following provisions for persons to authorize representative decision-making agreements such as powers of attorney, advance directives and other advance planning tools like personal directives as authorized under statutes. A valid Representative Decision Making Arrangement can be established to authorize a decision-making representative of an adult to make any or all decisions on behalf of the adult, through a Planning Document which: (1) is authorized by an adult who (a) with support to exercise legal capacity and accommodations as may be required, understands and appreciates the nature and consequences of making such an arrangement; including (b) an adult with a supported decision making arrangement; (2) identifies the triggering event(s), upon which the adult authorizes an individual to make decisions for the adult in areas identified in the document; and (3) identifies decisions or types of decisions to be made by the individual and any guidelines for decision making. (4) Where an adult seeks to establish a representative decision-making arrangement pursuant to section 1(b), application must be made to the Tribunal to authorize the arrangement. (5) In considering an application pursuant to subsection (4), the Tribunal must be satisfied that the adult is expressing his or her will and preferences to establish such an arrangement and has demonstrated at least some appreciation and understanding, by him or herself, of the nature and consequences of the decision. 16 NSACL and CACL strongly recommend that the Law Reform Commission of Nova Scotia recognize that the Powers of Attorney Act cannot exist outside of a broader legal framework which recognizes the right to legal capacity without discrimination on the basis of disability, and which makes provision for needed supports to exercise that right, including legal recognition of supported decision-making arrangements. 16 Canadian Association for Community Living, A Statutory Framework for the Right to Legal Capacity and Supported Decision Making (Toronto: Canadian Association for Community Living, 2014) at

18 The need for substantial revision in Nova Scotia s framework for legal capacity has been recognized by the Nova Scotia Joint Community-Government Advisory Committee on Transforming the Services to Persons with Disabilities (SPD) appointed in March 2013 by the Nova Scotia Minister of Community Services. The Committee s report and recommendations were accepted and endorsed by the Government of Nova Scotia in August In particular, the report recommends the Government of Nova Scotia Initiate legislative reform process to establish a legal framework to protect and promote the right to legal capacity and supported decision making and recognizes: The recognition and respect of a person s legal capacity empowers a person to exercise control over financial/property, health care, and person care and life decisions, and to command respect from others for his or her decisions. Having particular mental and communicative capacities cannot be a condition of having one s right to legal capacity respected by others. That a person who has a diagnosed intellectual, cognitive or mental health disability is unable, on his or her own, to understand, appreciate and communicate a decision does not legitimize removing that person s decision making rights. Legislative reform would be required to ensure compliance with UN CRPD in particular reforms to the Incompetent Persons Act and the Adult Protection Act; and establishment of a legal and regulatory framework for making supported decision making arrangements. 17 Recommendation 5: That the Powers of Attorney Act provide for a person who may use supported decision-making arrangements to appoint powers of attorney provided such a person can demonstrate to an independent tribunal or review board that he/she has at least some appreciation and understanding, by him or herself, of the nature and consequences of the decision. Further, that the Law Reform Commission of Nova Scotia undertake to advise the Government of Nova Scotia on a broader legal framework to recognize, protect and promote the right to legal capacity and supported decision making. 17 The Nova Scotia Joint Community Government Advisory Committee on Transforming the Services to Persons with Disabilities (SPD) Program, Choice, Equality and Good Lives in Inclusive Communities: A Roadmap for Transforming the Nova Scotia Services to Persons with Disabilities, at 17-18, online: (last accessed 06 June 2014). 16

19 6. Need for an independent tribunal or review board to address disputes related to legal capacity The Discussion Paper identifies the need to strengthen procedural safeguards to protect the right to legal capacity, autonomy, and dignity of risk. The need for such safeguards arise, for example, with respect to making declarations of incapacity for the purpose of a springing power of attorney, identifying needs for supports in situations of adult protection and applying the subjective best interests test. A wide range of disputes can be anticipated that as the Discussion Paper rightly recognizes should not be addressed necessarily through court proceedings, and which require a much more flexible, timely and accessible process. However, we believe that the approach taken in the Discussion Paper to address these issues simply through revised procedures with the Public Trustee, the Adult Protection authority or the courts will not secure access to justice for those adults for whom these issues arise. Because of the wide range of capacity issues and related disputes which can be anticipated, and the recognized need to secure procedural justice and fairness, NSACL and CACL recommend the establishment of a separate tribunal or review board with competent authority to hear and resolve disputes through appropriate hearings and issuance of orders. Such an approach has been taken in Nova Scotia with respect to the Nova Scotia Involuntary Psychiatric Treatment Act which provides in s.65 for the establishment of a Review Board to hear applications to review declarations of incompetency, whether capable informed consent has been provided by substitute decision makers, etc. Other jurisdictions have taken the step of establishing separate 17

20 review boards to address matters of capacity, including Ontario which established the Consent and Capacity Review Board for this purpose. Recommendation 6: That the Powers of Attorney Act provide for the Governor in Council to establish a Review Board or Tribunal to hear and consider applications under the Act related to questions of capacity, supports in decision making, interventions and steps taken for adult protection and any other matters related to ensuring procedural fairness in the recognition, protection and promotion of the right to legal capacity. Conclusion NSACL and CACL strongly support the Law Commission of Nova Scotia s efforts to update and modernize the statutory framework to recognize, promote and protect the right to legal capacity for Nova Scotians with respect to appointment of powers of attorney. In updating the legislation in light of the UN CRPD, we believe that steps must be taken to ensure that a new Act does not reproduce the outdated notion that legal capacity and mental capacity are equatable, that the latter is the sole criterion for the former. We recognize and appreciate the concerns related to financial abuse of persons who are vulnerable and believe there are many worthy proposals in the Discussion Paper to address these issues. Our recommendations are intended to strengthen these proposals by ensuring that a new Act does not result in discriminatory denial of the right to legal capacity, and to show how a new Act can be seen as one element of a more comprehensive framework for the right to legal capacity and supported decision making in Nova Scotia. 18

21 In closing, we urge the Law Reform Commission and the Government of Nova Scotia to act on the recommendations of the Nova Scotia Joint Community Government Advisory Committee on Transforming the Services to Persons with Disabilities (SPD) Program to take the needed steps to design a comprehensive framework for the right to legal capacity. Such action is essential to ensure that all Nova Scotians do indeed enjoy equal recognition and respect under the law. 19

22 Appendix A Canadian Association for Community Living, A Statutory Framework for the Right to Legal Capacity and Supported Decision Making 20

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