The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making

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Introduction

It is generally recognized that Canada is in the middle of the third wave of reform in the areas of adult guardianship and substitute decision-making since the early 1970s (see, e.g., Chalke et al. 1996, Gordon 1995). The reforms are reflected in the significant reconstructions of adult guardianship legislation that have taken place in Quebec, Ontario, British Columbia, Manitoba, Prince Edward Island, and the Northwest Territories, and that have been discussed in Nova Scotia and Yukon Chalke et al. 1996, Gordon 1995, Gordon and Verdun-Jones 1992, Robertson 1994.

Unlike the reforms that occurred in the late 1970s and again in the mid 1980s, current legislative activity involves comprehensive revisions of all the fields of law affecting guardianship and substitute decision-making for adults.1 The reforms of the 1970s, which were concentrated in Alberta and then later spread to Saskatchewan involved, primarily, a revision of legislation dealing with committeeship (i.e., court-ordered guardianship and trusteeship) (Gordon, 1995).2

The second wave of reform, which affected only the Atlantic provinces, was focused almost entirely upon adult protection issues; that is, the passage of new adult protection statutes designed to deal with cases of abuse and neglect, especially of the elderly (see, e.g., Gordon 1995, Gordon and Verdun-Jones 1992, McDonald, Hornick, Robertson, & Wallace 1991, Poirier 1992, Robertson 1995).3

In Ontario and British Columbia, the legislatures have passed extensive and integrated packages of statutes governing consent to health care, the admission of adults to care facilities, adult protection, court-ordered substitute decision-making and guardianship, statutory guardianship, and advance health care and personal care directives (expanded enduring powers of attorney and their equivalent) Gordon 1995, Chalke et al. 1996, Schneider 1996.4 Like Quebec, these provinces have also adopted the “combined office” model of public guardianship and trusteeship: existing public trustee services have become, or are soon to become, public guardian and trustee services.

Unlike Quebec, the two provinces made some provision for legal and social advocacy but the scheme originally enacted in Ontario (the Advocacy Commission and its attendant province-wide social advocacy system) was dismantled after barely 6 months of operations (Gordon & Verdun-Jones, 1992 (1995 supplement). Although less ambitious, the system of advocacy originally planned for British Columbia (a combination of legal and volunteer social advocacy) has been significantly downscaled and may not be fully implemented for some time. A combination of severe fiscal restraint and disagreements among community organizations during the implementation phase may, in fact, sound the death knell for this component of the legislation.

The third wave of Canadian legislation has many common characteristics due, primarily, to the high levels of dialogue between the members of key interest groups (e.g., the associations for community living), government policy-makers and legislative drafters. It also has a great deal in common with both new legislation in Australia and the proposals for reform in Britain (see, e.g., Carney & Tait 1994, The Law Commission 1995, Hale 1997, Queensland Law Reform Commission 1996). In addition, there are some interesting and important new developments—new concepts for the law of adult guardianship and substitute decision-making—which are found in the new statutes. These include the concept of the Ulysses agreement (contract), and the introduction of liberal tests of capacity for the making of certain kinds of powers of attorney (see Gordon & Verdun-Jones, 1992 (1995 supplement). One of these new developments is discussed in this article: the statutory recognition of assisted (supported) decision-making.

Section snippets

Assisted (Supported) Decision-Making

The concept of assisted decision-making—sometimes referred to as supported or interdependent (as opposed to independent) decision-making—is gradually appearing in the adult guardianship and substitute decision-making legislation of many Canadian jurisdictions. It is also appearing in the proposals for reform in other places (see, e.g., The Law Commission 1995, Queensland Law Reform Commission 1996). Assisted decision-making is viewed as a viable alternative to court-ordered guardianship or

Assisted (Supported) Decision-Making in Practice: Some Issues, Problems, and Criticisms

Although assisted decision-making has been provided, informally, for many years by, in particular, semi-organized forms of community or social advocacy, the associated practices have not been widely researched. Indeed, recently published texts on guardianship and substitute decision-making in North America make no mention of assisted or supported decision-making, even in the often extensive reviews of both the need for reforms to guardianship laws and the development of alternatives to

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References (26)

  • K. Blankman

    Guardianship models in the Netherlands and Western Europe

    International Journal of Law and Psychiatry

    (1997)
  • K.C. Glass

    Refining definitions and devising instrumentsTwo decades of assessing mental competence

    International Journal of Law and Psychiatry

    (1997)
  • B. Hale

    Mentally incapacitated adults and decision makingThe English perspective

    International Journal of Law and Psychiatry

    (1997)
  • A.E. Buchanan et al.

    Deciding for othersThe ethics of surrogate decision-making

    (1989)
  • Report of the Task Force on Alternatives to Guardianship

    (1992)
  • T. Carney et al.

    Guardianship boards in AustraliaAccessible and accountable justice?

  • Chalke, J., Hayes, L., & Howitt, K. (1996). Substitute decision making for incapable people: Trends in law and policy....
  • R.M. Gordon

    Adult guardianship and adult protection legislation in CanadaRecent reforms and future problems

    Canadian Journal on Aging

    (1995)
  • Gordon, R. M., & Verdun-Jones, S. N. (1992). Adult guardianship law in Canada. Toronto: Carswell. (with 1994 and 1995...
  • P.A. Hommel

    The more things changePrinciples and practices of reformed guardianship

  • M. Kapp

    Barriers to the development and use of alternatives to guardianship

  • Mental incapacity

    (1995)
  • P.L. McDonald et al.

    Elder abuse and neglect in Canada

    (1991)
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