Supported Decision Making in Theory and Practice The Canadian Experience By Michael Bach & Brendon Pooran Vienna, May 2013

Outline Concept/Approach of Supported Decision Making as an Alternative Law/Practice of Supported Decision Making in Canada –Where supported decision making in law –Where no statutory supported decision making provisions

Legal Capacity Defined by the U.N. legal capacity = the “capacity and power to create, modify or extinguish legal relationships” 3

What kinds of decisions matter to you?

The law identifies 3 main kinds Health Care Decisions Personal Life Decisions (where to live, relationships, participation, access, employment, sexuality, mobility and supports) Financial/Property Decisions 5

The problem with the law: Requires some professionals and courts to make a ‘finding of incapacity’ and takes away the right to make decisions because of that label

How does the law do that? The usual formula for legal capacity Legal capacity Mental capacity

What is ‘Mental capacity’: On his/her own, or ‘independently’, an adult can: Understand information needed to make the decision Retain the information Appreciate the consequences Communicate the decision in ways others understand

Our Rights under the UN Convention We have the right to make our own decisions (autonomous decision-making) – Article 12(2) CRPD

States have an obligation to provide supports (where needed) to help someone exercise legal capacity. - Article 12(3) CRPD

Safeguards - Article 12(4) Protection against exploitation, violence and abuse - Article 16 CRPD

“Accommodations” (adjustments) – Article 5(3)

Article 12 says we need other ways to recognize and support the right to legal capacity: Not just ‘mental capacity’

Can Express Will and Preferences to Others No… I don’t want to I want to…

Being known by others as a full person – people you trust and who are committed to you, help interpret you to the world

A new formula for legal capacity individual will and preferences supports accommodation equal legal recognition Capability to make decisions unique decision- making abilities

In the new formula… Legal capacity ‘mental capacity’ What a person wants, their hopes and plans is at the centre Focus is on supports and accommodation When people have different ideas about what a person might want, they talk to figure out the ‘best interpretation of your will and preference’, not ‘best interests’

Ways to Exercise Legal Capacity Supported Independent community Representative Facilitated 19

Supported decision making Network… A group of trusted others to assist in: –Expressing will and preferences –Making and acting on decisions 20

Appointing supporters By myself When I am not able, others apply to be my supporters on the basis of trust, personal knowledge and commitment

Types of support Decision-making supporters Peer support Communication assistance – interpreters Plain language, alternate formats Independent advocates

Types of accommodation For example: More time (by a doctor or financial institution) to make a decision Duty to provide information, plain language Including your supporters in the decision-making process

A new approach FromTo A ‘presumption of capacity’ A presumption to act independently Capacity assessment Assessing need for supports and ‘alternative course of action’ DetentionExploration of alternatives Finding of incapacityFinding of need for support Substitute decision making Supported decision making and power to appoint Best interest testBest interpretation of will and preference

What are we calling for? Recognize right to supports in decision making and government duty to establish Prohibition on findings of incapacity, substitute decision making and detention where alternatives exist Legal Obligation to explore alternatives Duty of ‘third parties’ – doctors, banks to accommodate Rights advisors in mental health system Government duty to establish supports

A LOOK AT CANADA….

Decision-Making Actors in Canadian Legal Frameworks Individual decision-maker Supporters of individual Third parties – individuals who interact with the decision-maker Example: health care providers; financial institutions; parties to contracts State

Canada’s Laws Legal recognition is not full nor the same across all of Canada Canada’s guardianship and decision-making laws differ in each jurisdiction (province/territory) Not all jurisdictions recognize supporters

Legal Recognition of Supported Decision-Making Contained in decision-making legislation Only in some jurisdictions Mechanisms are not the same in each jurisdiction Some form of such recognition in : –Alberta, British Columbia; Manitoba; Saskatchewan; Yukon

Legal Recognition of Supporters - Types 1.Supported Decision-Making Planning Documents – Individual chooses and appoints supporters 2.Co-Decision-Making – Supporters appointed by court

Legal Duties of Third Parties: Duty to Accommodate Contained in human rights laws Not specific to decision-making Duty to accommodate – Duty to take proactive steps to ensure that services are provided without discrimination to people with disabilities

Duty to Accommodate Duties on service providers such as health professionals, financial institutions and lawyers No finite list Individualized to person Examples: plain language material; extra time to process information; accepting role of support people in decision-making process

Alternative Course of Action to Guardianship In Guardianship legislation in many Canadian jurisdictions Court prohibited from appointing a guardian if an alternative course exists Alternative course may include – Supports and supported decision- making arrangements – Powers of attorney

Lessons from Canadian Experience Essential Features to transform Law to Reality Broad education and awareness Comprehensive coverage – to take account of different ways in which people make decisions Guiding principles State role – address needs of people who don’t have supports safeguards

A Practitioner/Adjudicator’s Perspective of Consent & Capacity Law in Ontario IVS Vienna May 12, 2013 Brendon D. Pooran PooranLaw Professional Corporation BRENDON D. POORAN LLB., B.Comm | 120 Eglinton Avenue East, Suite 1000 Toronto, ON M4P 1E2 | fax: |

Outline 1.The Law in Ontario 2.Legal Instruments 3.Issues & Responses 4.Questions 36

The Law in Ontario (No legal framework for supported decision making) 37

The Law in Ontario Theme  ability to understand and appreciate Tests to determine capacity differs –Managing property –Consenting to personal care –Giving a Continuing Power of Attorney for Property –Giving a Power of Attorney for Personal Care –Giving instructions for a Last Will & Testament –Entering into a contract 4 38

The Law in Ontario Two broad areas of decision making – Property – Personal Care (health care, nutrition, shelter, clothing, hygiene, safety) Presumption of Capacity –Unless evidence raises question of capacity AND a decision needs to be made 39 4

Who Assesses Capacity? It depends... –What type of capacity –What type of decision Granting POAs, Wills  Lawyer Health treatment  Health practitioner proposing treatment Formal capacity assessment  Capacity Assessor –If required by POA –If required by legislation 40 4

Capacity to Consent to Personal Care Requirements –Understand the information relevant to making a decision –Appreciate the reasonably foreseeable consequences of a decision or lack thereof Some Questions 1.Can the person understand the condition for which the specific treatment is proposed? 2.Can the person understand information relevant to treatment? 3.Is the person aware of the risks and benefits associated with treatment? 41 4

Capacity to Manage Property Requirements –Understand the information relevant to making a decision –Appreciate the reasonably foreseeable consequences Some Questions 1.Is the person aware of the nature of his or her assets, liabilities, income, expenses and responsibilities towards dependents? 2.Does the person experience difficulties with orientation, memory or calculations that affect financial management? 3.Does the person have a appreciation of his/her strengths or weaknesses? 4.Is there a demonstrated ability to make reasonable decisions? Is the person expected to do so in the foreseeable future? 42 4

Hierarchy of Substitute Decision Makers (Property) 1.Guardian 2.Attorney for Property 3.Public Guardian as Statutory Guardian 43 4

Hierarchy of Substitute Decision Maker (Personal Care) 1.Guardian 2.Attorney for Personal Care 3.Representative appointed by the Consent & Capacity Board 4.Spouse or partner 5.Child or parent 6.Brother or sister 7.Any other relative 44 4

Responding to Abuse Police Public Guardian & Trustee Investigations Unit –Must be reasonable grounds to believe person is incapable of managing property AND that “serious adverse effects” are occurring –“serious adverse effects”  loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself, herself or dependents –Public Guardian not required to take any steps –Public Guardian may apply for temporary guardianship of property for up to 90 days 45 4

Legal Instruments 46

Gives someone the authority to act on your behalf while you are alive Specifically with matters relating to property (real property, finances, etc.) May take effect when grantor is capable Continues when grantor is incapable 47 Continuing Power of Attorney for Property

Knows kind of value of property Aware of obligations to dependants Knows authority of the attorney Knows that attorney must account Knows the grantor may can revoke Appreciates that value may decline Appreciates the attorney could misuse authority 48 Continuing Power of Attorney for Property: Capacity Requirements

Gives someone the authority to act on your behalf while you are alive Specifically with matters relating to health care, nutrition, shelter, clothing, hygiene & safety Authorizes attorney(s) to act only when you are incapable Can name more than one attorney Attorney must be over 16 years of age Paid service provider cannot be attorney 49 Power of Attorney for Personal Care

Ability to understand that attorney has genuine concern for person’s welfare Appreciates that attorney may have to make decisions for the person 50 Power of Attorney for Personal Care: Capacity Requirements

Person must be found incapable of managing property and/or consenting to personal care matters Personal Care  can only be appointed by court Property  can be appointed by court or through statutory guardianship process (involved PGT) Courts must consider “less restrictive” provision 51 Court-Appointed and Statutory Guardianship

52 Prohibition on Court-Appointed Guardianship where Alternatives Exist 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 property/personal care; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

Applications made to give/refuse consent on behalf of incapable person –May be made by incapable person –May be made by potential representative Does not apply if guardian or Attorney for Personal Care is in place Person appointed must be at least 16 years of age Hearings take place within 7 days of application and decision is granted by the following day 53 Role of the Consent & Capacity Board

Issues & Responses 54

Substitute vs. Supported decision making options Person must be found incapable in order to receive support (subject to POA for Property) All decision-making rights are stripped from individual as part of the guardianship process Legislative requirements for granting POA sets a high bar “less restrictive” requirement is not probed Article 12 does not play a role in practice (as of yet) Two trains of thought: –Law reform that respects everyone’s decision-making rights –Simplify guardianship process 55 Issues & Responses

As an Adjudicator Respect the individual’s right to a fair hearing Recognize that the duty to accommodate individuals with a mental disabilities is entrenched in our constitution and human rights legislation Strive to listen to individual’s reasoning in addition to the healthcare practitioner’s evidence Make decisions without considering “ best interest ” 56 Issues & Responses

As a Legal Practitioner Family members of individuals with developmental disabilities confused and searching for a solution Being told by schools, government agencies, financial institutions and healthcare practitioners that guardianship is required We generally discourage families from pursuing guardianship applications but have little to offer by way of legally-recognized solutions 57 Issues & Responses

As a Legal Practitioner we.. Encourage everybody that grant POA to do so Accommodate using plain-language, diagrams, communication tools, etc. Use trusts to decrease possibility of guardianship being required Offer training to various stakeholders and encourage them to listen to the individual first Promote the development of personal support networks 58 Issues & Responses

59 BRENDON D. POORAN LLB., B.Comm | 120 Eglinton Avenue East, Suite 1000 Toronto, ON M4P 1E2 | fax: | QUESTIONS Brendon D. Pooran PooranLaw Professional Corporation