Supported Decision-Making in Canada: Legislative Approaches and Lessons Learned Prepared For Supported Decision-Making Webinar March 26, 2014 Lana Kerzner.

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Presentation transcript:

Supported Decision-Making in Canada: Legislative Approaches and Lessons Learned Prepared For Supported Decision-Making Webinar March 26, 2014 Lana Kerzner Barrister and Solicitor

Decision-Making ‘Players’ 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

Legal Recognition - Requirements For Supported decision-making to be a reality, laws must address the roles of each of the 4 players

Canada’s Laws Legal recognition of: – Supporters – Role for third parties Alternative Course of Action to Guardianship

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 Few Resources Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity”, prepared for the Law Commission of Ontario, 2010, online: bach-kerzner.pdf bach-kerzner.pdf Mental Disability Advocacy Centre, “Supported decision- making: An alternative to guardianship”, online: Decision-making_An_Alternative_to_Guardianship.pdf Decision-making_An_Alternative_to_Guardianship.pdf United Nations Enable, information on the United Nations website on the Convention on the Rights of Persons with Disabilities, online: