Guardianship, Substitute or
Supported Decision Making?
Family Support Network
Presentation
Newmarket, Ontario
May 9, 2012
A Bit of History
1992:
“FROM PATERNALISM TO PARTNERSHIP:
DEVELOPING LEGAL APPROACHES THAT
REINFORCE
RATHER THAN DISREGARD THE CAPACITY
OF PERSONS
WITH MENTAL DISABILITIES TO MAKE
CHOICES”
Some Guiding Principles
• “There is no need to limit me”
• Social inclusion must mean participation in
decision making
• If you “replace” a person, that person has
lost their unique personhood
• “Nothing about us without us”
Some undisputed realities
• No one is without ability; each of us has limited ability.
• Everyone has a will, meaning a set of preferences,
intentions and wishes.
• Important decisions are hardly ever made by any of us in
a social vacuum.
• You need to have choices available that are worth
making so you will have meaningful practice in making
decisions.
• Any scheme adopted for making decisions must meet
the test of reducing the vulnerability of the person.
Traditional “Capacity” Standards
• “Able to understand information that is
relevant to making a decision” and
• “Able to appreciate the reasonably
foreseeable consequences of a decision
or lack of decision”
• Only “yes” or “no” – no room for “no, but …
– “yes, with support”
Canadian Charter of Rights and
Freedoms
• Section 15: “Every individual is equal before and
under the law and has the right to the equal
protection and equal benefit of the law without
discrimination and, in particular, without
discrimination based on … mental or physical
disability”
• Section 7: “Everyone has the right to life, liberty
and security of the person and the right not to be
deprived thereof except in accordance with the
principles of fundamental justice”
UN Declaration on the Rights of
Persons with Disabilities
Ratified by Canada in March 2010
• Article 12:
– 1. “the right to recognition everywhere as
persons before the law.”
– 2. “recognize that persons with disabilities
enjoy legal capacity on an equal basis with
others”
– 3. “take appropriate measures to provide
access by persons with disabilities to the
support they may require in exercising their
legal capacity”
Role of UN Convention
• Domestic statutes ought to be
understood as far as possible to
conform with international human
rights obligations.
Ontario Substitute Decisions Act
Subsections 22(3) (property) and 55(2) (personal care):
Prohibition
The court shall not appoint a guardian if it is satisfied that
the need for decisions to be made will be met by an
alternative course of action that,
(a) does not require the court to find the person to be
incapable of personal care; and
(b) is less restrictive of the person’s decision-making
rights than the appointment of a guardian.
Gray v. Ontario (2006)
• “Where alternatives to the appointment of
a guardian will allow for decisions to be
made concerning an individual’s personal
care, this is to be preferred to a
guardianship order, which requires a
finding that the person is incapable of
personal care.”
Gray v. Ontario (cont’d)
• “A process short of full or partial
guardianship is preferable in
many cases, as it best recognizes
the autonomy and dignity of the
individual and the inclusiveness of
the decision-making process.”
Ontario Human Rights Code
• 34(5) Application on behalf of another
A person or organization may apply on
behalf of another person to the Tribunal if
the other person,
(a) would have been entitled to bring an
application under subsection (1); and
(b) consents to the application.
• Note: “on behalf of” is not the same as “instead of”
Kacan v. Ontario Public Service
Employees Union – April 12, 2010
• “Where appropriate, decisions should
be made by the applicant together
with the claimant and with respect for
her wishes, which is how Ms. Kacan
and Ms. Korevaar intend to conduct
this application”
Kacan v. Ontario Public Service
Employees Union (cont’d)
• “A mutual understanding and implicit
undertaking by the applicant to act in
the best interests of the claimant”
• Adjudicator sees UN Convention
Article 12 as clear support for his
interpretation of section 34(5)
Registered Disability Savings Plan
• A major national set-back
• Adults could only open an RDSP if they
were “contractually competent”
• Anyone wishing to open an RDSP for an
adult who is not “contractually competent”
had to become that person’s “guardian” or
be otherwise “legally authorized” to make
financial decisions for the person
R.D.S.P. (cont’d.)
• 2012 Federal Budget announced that,
beginning this summer and until 2016, an
adult who is not “contractually competent”
can have an R.D.S.P. opened for her by
her parent or spouse.
• Finance Minister Flaherty says it is up to
the provinces and territories to introduce
supported decision-making legislation.
“I want to donate blood”
• 17-year-old Essex County resident
Yanhong Dewan wanted to donate blood.
• Canadian Blood Services rejected her as a
donor because they believed she did not
understand the questions in their
screening questionnaire.
• What should have been done?
“Competency”: the person or the
process?
• What are the standards that make a decisionmaking process “competent”?
–
–
–
–
–
Preservation of true “personhood”
No exclusion of the person
Can be (and is) trusted to act morally and ethically
Freedom from conflict of interest
Not guided by someone else’s concept of what is in
the person’s “best interests”
– The person “enjoys” legal capacity!
Questions from the Event Flier
• Who should have the right in making
decisions when the parents are gone?
• What are the present legal rights of our
children and adults in Ontario?
• How do we decide which decision is best
for our adult child?
Canadian Association for
Community Living position paper:
• “We believe that legal capacity is a fundamental right,
regardless of perceived level of disability or support
required to exercise it. No one should be excluded from
the process of making decisions about their lives.
• “People with significant support needs or those who do
not communicate or express themselves in ways that are
easily understood by others must have a continued
presence in the decision-making process.”