Guardianship Why Bother

GUARDIANSHIP – WHY BOTHER?

In Nova Scotia, every person ceases to be a minor, on attaining the age of nineteen years. A person who has obtained the age of majority (19) is deemed to be competent and capable of directing and looking after his or her own affairs, unless declared incompetent by the courts. The act under which a person is declared incompetent is the Incompetent Persons Act. This is the only legislation in Nova Scotia in which to obtain guardianship of the person and estate of an individual over the age of majority who is incapable of making personal care decisions and/or administrating his or her estate. In the past, many parents of children with intellectual and physical disabilities did not see the need for obtaining the guardianship of their children once they reached the age of majority. Their advice and direction was accepted, without proof of guardianship. There were few or no problems directing medical treatment or gaining access to medical records. A child who was disabled from birth often had minimal, if any, assets to administer and access to those assets was not usually a problem for parents. The Privacy Act, the Personal Information Protection and the Electronic Documents Act have created a trend towards the formalization of authority to appoint persons to make decisions for children with intellectual disabilities who have obtained the age of majority. The Privacy Act applies to institutions, such as government institutions and hospitals, whereas the Personal Information Protection and Electronic Documents Act applies to individuals, such as individual medical practitioners. Both address the privacy of records, such as medical records and provide stiff penalties for providing access to such records without clear authority. The keystone to providing access to Prepared for the HALIFAX ASSOCIATION FOR COMMUNITY LIVING 463-4752

medical information is consent. If the patient is incapable of providing such consent, then the medical practitioner must assure himself (or herself) that the person providing consent has the lawful authority to do so. There are other reasons, why obtaining guardianship of such children, is desirable. For example, guardianship also allows one to direct the placement of an adult child in a care facility and further allows one to be involved in the ongoing care decisions with respect to such placement. A number of years ago, I became involved with the parent of an adult child with an intellectual disability, who was placed in a group home and whose care was paid for by the provincial government. The administrators of the home refused to keep the parent informed and refused her access to records involving her adult child. The social workers were of little assistance and together with the home workers and administrators, considered the parent to be a “busybody”. Once the parent obtained legal guardianship, under the Incompetent Persons Act, both the home administrators and social workers took notice and ceased trying to do an end run around the parent. The parent ultimately moved the child to another home where the child was much happier and where her ongoing interest and involvement were appreciated and encouraged. The legal guardian of an adult under the Incompetent Persons Act also has control of the “estate” of the adult. There may be few assets at first but, when the surviving parent dies, it is not uncommon that funds are left for the care of the child, sometimes (hopefully) in discretionary trusts and in some cases, in the form of homes or properties, that are designated for the care and continued living of the adult child with an intellectual disability. In these circumstances, guardians play a crucial role in administering the “estates” of their charges, to ensure that the beneficiaries who have an intellectual disability, are receiving the extra care and amenities for which their parents provided. Prepared for the HALIFAX ASSOCIATION FOR COMMUNITY LIVING 463-4752

The trend toward formalizing authority and obtaining guardianship of children with intellectual disabilities who obtain the age of majority (19), is continuing to emerge and, if anything, will become more pronounced in years to come. Parents should consider applying for guardianship once their children, with intellectual disabilities, reach 19 years of age, so that their authority to direct care, administer estates and access medical information is accepted and uninterrupted. Paul B. Miller, LLB

Prepared for the HALIFAX ASSOCIATION FOR COMMUNITY LIVING 463-4752