The Changing World of
Adult Guardianship
Dr. Robert M. Gordon,
Professor and Director: School of Criminology,
Simon Fraser University.
Distinguished Fellow: Canadian Centre for Elder Law,
University of British Columbia,
Vancouver, Canada
rgordon@sfu.ca
The Changing World
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Some key global developments in the field of
adult guardianship and substitute decisionmaking.
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The growing interest in and implications of
Shari’ah.
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The impact of the growth of the cyber-world and
the emergence of “e-justice.”
What has changed?
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Early 19th Century, beginning of process of organized exclusion of
the “mad” but also improvement in the conditions of confinement
Robert Gordon, M.P. “Gordon’s Bills” - 1828 Madhouse and County
Asylums Act
1832 Metropolitan Commissioners in Lunacy (system of licensing
and visiting)
Regulation of private madhouses; provision of care for pauper
lunatics. Led to the Imperial Lunacy Act, 1890
Key Global Developments since
1970
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First Wave Reforms: early 1970s, Alberta, etc.,
Dependent Adults Act, triggered by the UN Declaration
of the Rights of Mentally Retarded Persons (1969)
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Second Wave Reforms: 1980s/early 1990s comprehensive adult guardianship and substitute
decision making, etc. legislation in key Commonwealth
jurisdictions (in Canada & Australia)
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Third Wave Reforms: European Convention on Human
Rights affecting the expanded European Union; UN
Convention on the Rights of Persons with Disabilities
(2006). Growth of idea of supported decision-making
The Main Drivers
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Changing nature of institutional care and
treatment (from exclusion to inclusion).
Demands of rapid population aging (costs of
care, abuse and neglect, etc.).
Advances in health care, etc., (e.g., better
understanding of incapacity).
Adoption of various human rights instruments.
Growing criticisms of system of adult
guardianship on part of key interest groups.
Common Presumptions and Principles
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Old presumptions and new principles, gradually
extending to Common Law and Civil Code jurisdictions.
Presumption of capability, regardless of method of
communication.
Right to autonomy and self determination if/when
capable.
Right to the least restrictive/intrusive but most effective
forms of support and assistance if incapable and in need.
Court/tribunal proceedings to be used only as an
absolute last resort…develop alternatives.
Address Needs in the Least Restrictive/
Intrusive but Most Effective Way
How to develop least restrictive, etc., options, especially
avoiding courts/tribunals?
 What triggers “guardianship”, are there alternative/
better ways of addressing adults’ needs in the late
20th/early 21st Century?
 Clusters of needs (the “bumps”)
– Financial (and legal) decisions and daily management
of financial affairs
– Health care decisions
– Personal care decisions (including residential care)
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Main constituencies
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Establish options for different constituencies, levels of
capability/incapability, and fluctuations within the
constituencies
One size does not fit all
– People with degenerative diseases of aging
– People with developmental disabilities
– People with psychiatric disorders
– People with brain injuries
– People with other degenerative disorders and
diseases affecting capacity (Aids, Huntingtons
disease, etc.)
Least restrictive, etc. options
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Development of planned alternatives to guardianship: enduring
powers of attorney, advance (proxy) directives, inter vivos trusts,
plus easy access to planned alternatives.
Health care and personal care substitute decision-making by
relatives and friends, and/or instructional directives, with last resort
option.
Development of supported decision-making.
Alternative dispute resolution/mediation to avoid hearings and allow
for consent orders.
Temporary, statutory property guardianship by guardian/trustee.
Adult protection legislation (abuse/neglect) and public
guardian/advocate/trustee services as a safety net.
Issues and Challenges
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Assessments of incapability (new tools and techniques)
Provision of infrastructure to support alternatives and
protective measures (NGOs and public guardian/
advocate/trustee services)
Professional (gatekeeper) education about the
alternatives (e.g., through professional Colleges)
Growing interest in reforms by “non-Western” nations,
sparked by UN Convention
U.N. Convention (2006)
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Triggered global interest in adult guardianship reform especially
supported decision-making.
Goal is progressive realization of the Convention’s provisions.
Interface with Islamic Sacred Law – Shari’ah.
Two main issues:
– Reforms within Muslim countries
– Application in non-Muslim countries with Muslim populations
Shari’ah
1: Introduction of reforms within Muslim countries
Range of orthodoxy (cf. Malaysia/Egypt with Iran/Saudi
Arabia).
Most likely in combined jurisdictions (e.g., Malaysia)
2: Application in non-Muslim countries containing large
and growing Muslim populations (e.g., Britain, France
and Canada)
Driven by Constitutional guarantees of religious freedom; and,
multi-cultural immigration policies.
Countered by fear of violations of fundamental human rights
and widespread islamophobia.
Shari’ah
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Law derived from readings and interpretations of the
Qur’an, the Sunnah, & the Hadith, by Imams, and
issuance of fiqh & fatwa.
Regulates daily life of Muslims, moral and physical
Defines and regulates domestic and commercial
relationships
Resolution of disputes/ conflicts
– Family law (divorce, maintenance, custody, etc.)
– Property and inheritance, including trusts
– Commercial law
Accommodations in Non-Muslim
Countries
Offered on a voluntary basis only (religious choice). Use
in non-binding settlements or consent orders.
 Parallel “adjudication” (advisory) similar to
restorative/aboriginal justice circle remedies.
 Extensions of the community court concept.
 Faith-based arbitration (Ontario Arbitration Act) using
religious principles to settle disputes (halted in 2005).
 More formal, enforceable decisions by alternative dispute
resolution tribunals within dominant legal system
(Muslim Arbitration Tribunals in Britain, 2007).
www.matribunal.com
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Shari’ah and “guardianship”
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No specific interpretations or initiatives, yet.
Patriarchal principles would extend to all aspects of
existing systems of substitute decision-making:
– Selecting the guardian/substitute decision-maker;
– Health care and personal care decisions according to
Muslim principles and based upon pre-expressed
wishes or values and beliefs (substituted judgment);
– Best interests decisions per relevant fatwa and
decisions of paternal lineage;
– Management of financial affairs (control and
distribution of assets).
The impact of the growth of the
cyber-world
Real life and cyber life…the growing phenomenon of
virtual existence, the e-generation and the e-niverse.
 New forms of exploitation and victimization, some target
vulnerable seniors;
 And new forms of dispute creation (Second Life);
 And new forms of (popular) justice and retribution:
lasting global condemnation via the internet.
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Cyber exploitation and victimization
of vulnerable adults
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Emotional abuse
– Counselling suicide, on-line predatory
behaviour, harassment, e-stalking,
defamation, unwanted sexting.
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Financial abuse
– Phishing (identity theft), fraud (bogus
requests for financial aid, money transfer
scams, etc.)
Second Life
New, organized
aspect of virtual
reality (Linden
Corporation)
 Virtual existence
leading to first (real)
world conflicts
(divorce, stalking,
sexual abuse, sexual
exploitation of
children)
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e-Justice
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New forms of popular e-justice: shaming and retribution
via social network and other internet sites (e.g.,
YouTube).
Vancouver hockey riot and citizen surveillance
Implications for guardianship
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Vindictive internet attacks on those involved with administering the
guardianship system (beyond anonymous blogging)
Vindictive internet attacks on family members in disputes with other
family members
Invasions of privacy of vulnerable adults (e.g., self neglect cases) to
trigger interventions
Conclusions
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“Adult Guardianship” very different to the 19th Century
conception, in theory and in practice but threads remain.
Importance declining in the face of less restrictive, more
effective (and cheaper) alternatives.
Form and content of the alternatives being driven by a
range of factors affecting the main constituencies.
Changes now occurring on a global basis with uncertain
outcomes.
Cyber-world becoming a force to be reckoned with as
the e-generation ages (be prepared but watch for
opportunities).
Questions?
MATCHING NEEDS AND
INTERVENTIONS: ALZHEIMER DISEASE
INCAPABILITY
NONE
SOME
EXTENSIVE
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NONE
[PLANNING STAGE] [USE OF PLANNING TOOLS->.……………]
[USE OF SUPPORT ………………………………………………………]
INTERVENTION
MATCHING NEEDS AND INTERVENTIONS:
BRAIN TRAUMA
INCAPABILITY
NONE
SOME
EXTENSIVE
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l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l
NONE
SUPPORTED D’MKG-------LIMITED G’SHIP-----FULL G’SHIP
INTERVENTION
MATCHING NEEDS AND INTERVENTIONS:
DEVELOPMENTAL DISABILITY
INCAPABILITY
NONE
SOME
EXTENSIVE
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l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l
NONE
INTERVENTION
(SUPPORTED D’MKING -> …………)
(SUBSTITUTE D’MKING ->…)