Using a trust to provide for a special needs family member provides a way of maintaining control of assets in the hands of responsible persons, for the benefit of a family member who is living with a disability.read more
Significant Development in the Law of Guardianship in Newfoundland and Labrador
In Re A.A., the Newfoundland and Labrador Court of Appeal has affirmed that the Supreme Court Trial Division may grant general orders for a unique form of guardianship of adults who live with a mental disability. Commonly known as “Guardianship of the Person”, this kind of order gives the Court-appointed guardian the plenary authority to legally represent the disabled adult and to make future personal decisions, including medical decisions and decisions related to their day-to-day living. Such an Order provides for representative decision-making with respect to everything other than the property and finances of the person living with the disability. The distinction between “Guardianship of the Person” and “Guardian of Property” is a historic feature of the common law and of statute-based regimes for substitute decision making that have supplanted the common law.
Newfoundland and Labrador is the only province in Canada that does not have modern legislation providing for representative decision making by way of Guardianship of the Person.1 The ability of the Courts in the Province to issue orders of Guardianship of the Person of mentally disabled adults was historically thought by practitioners to be based on the historic parens patriae jurisdiction of the Court, which is generally understood as the power to make any order it deems necessary and in the best interests of minors or mentally disabled adults as long as it is not a matter governed or precluded by an enactment of the legislature.
However in May 2017 a Judge of the Supreme Court of Newfoundland and Labrador declined to issue Letters of Guardianship of the Person to three family members of A.A., a middle aged adult man with Down Syndrome, on the grounds that the jurisdiction of the Court did not extend to the appointment of a Guardian of the Person and the conferral of a broad authority to a third party to make future decisions with respect to all personal matters such as health care, living arrangements, decisions affecting the legal rights of the person, etc. While the Court recognized that the parens patriae jurisdiction gave the Court the authority to authorize specific acts, such as consent to a necessary medical procedure or treatment, the Judge did not see authority to appoint a Guardian and to give the Guardian the general authority for all future decisions with respect to the mentally disabled adult’s person.
The decision of the Trial Division Judge in Re A.A. was noteworthy because it broke with several years of practice where orders for Guardianship of the Person were made by the Supreme Court of Newfoundland and Labrador by way of Petition to the Court, typically accompanied by a Petitioner’s Affidavit and an Affidavit of a medical practitioner confirming that the person was prevented by disability from making decisions for themselves on matters of personal welfare and understanding the consequences of such decisions. The person at the centre of the proceedings was typically not independently represented and so the Court has generally assumed the role of protector of the disabled person’s interests.
In Re A.A., the Court of Appeal has overturned the decision of the Trial Division, holding that the Courts of Newfoundland and Labrador have the necessary jurisdiction to grant plenary orders for Guardianship of the Person. The Court of Appeal’s decision is founded on both the historic parens patriae doctrine and the Court’s statutory jurisdiction that has existed since 1824 through a section of a colonial statute passed by the United Kingdom Parliament that created the justice system for Newfoundland which conferred on the Supreme Court the ability to appoint “guardians and keepers” of the “persons and estates” of mentally disabled individuals.2
Significantly, the Court of Appeal sets out the principles that the Supreme Court of Newfoundland and Labrador must follow in future proceedings involving Guardianship of the Person. In provinces where Guardianship of the Person legislation exists, such legislation serves the important function of balancing the need of having an appropriate decision making regime in place for individuals who require it for their protection and well-being with the equally important interest of respecting the rights and personal autonomy of disabled individuals. In Re A.A. the Court of Appeal has formulated a threshold test that Petitioners for Guardianship of the Person must meet before a Court will exercise its discretion:
- The person with the disability must be unable to understand the information that is relevant or necessary to make a decision about his or her personal care; or
- The person with the disability must be unable to appreciate, or reason in respect of, the reasonably foreseeable consequences of those decisions or of failure to make those decisions.
While noting that each petition should be assessed on a case-by-case basis, the Court of Appeal highlighted the following as necessary considerations for the Court:
- Whether notice should be given to the disabled person, and if so, how notice is to be given (including consideration of whether the Public Trustee3 should be given notice on behalf of the disabled person);
- Whether the disabled person should have independent representation in the proceedings;
- Whether the scope of the Order for Guardianship sought is appropriate for the individual’s circumstances (e., is a limited order sufficient in light of the extent of the disabled person’s capacity, or is a blanket, plenary Order necessary);
- In cases where broadly based guardianships are granted, whether certain decisions should be carved out from a Guardianship Order thereby requiring the Guardian to return to Court for specific future authorizations;
- Whether any conditions should be placed on the Guardianship Order, including a requirement to return to Court for periodic review of the Court’s Order and the Guardianship, and / or requirement that various types of professionals should be consulted during the guardianship; and
- Whether security should be provided by the Guardian, noting that while security may be appropriate in some Guardianship of the Person cases, it need not be the norm (unlike the practice in the guardianship of property and estates).
The Court of Appeal decision in Re A.A. makes it clear that the past practice for Guardianship of the Person proceedings in Newfoundland and Labrador is no longer sufficient particularly where the disabled person would be aware of the loss of their legal ability to make the most important decisions for their well-being and having it placed it in the hands of others. The Court of Appeal cautioned against the Court’s acceptance of “boilerplate” or “conclusory assertions” of mental illness or disability and attendant inability to care for oneself.
This more vigilant judicial approach will apply even when the proposed Guardian is someone with whom the individual living with a disability shares close familial bonds. Practitioners should look to the decision in Re A.A. to review the factors that it sets out to ensure that Guardianship of the Person orders are granted only in appropriate circumstances.
In 2014, the United Nations passed the Convention on the Rights of Persons with Disabilities. Canada is a signatory to and has ratified the Convention. While the Court of Appeal in Re A.A. did not explicitly refer to the Convention in its decision, it appears that the Court has produced a judgment that strives to conform with the principles enshrined in it, including: (i) “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”; (ii) the recognition that disabled persons are equal before the law; and (iii) that very many disabled individuals retain some degree of capacity to make decisions themselves and have a right to support in exercising their individual legal capacity.
The Mentally Disabled Persons’ Estates Act (Newfoundland and Labrador) which deals with Guardianship of Property of individuals who live with mental disability, predates the Convention and has not been updated to reflect the principles of the Convention. Therefore there is ample reason to expect that the Courts in Newfoundland and Labrador will come to expect counsel to follow the more balanced approach mandated by Re A.A. when taking proceedings for the Guardianship of Property under the Mentally Disabled Persons’ Estates Act.4 It seems implausible that the principles enunciated by the Court in Re A.A. would be interpreted by the Supreme Court Trial Division as being confined to Guardianship of the Person proceedings only.
The decision in Re A.A. is a significant development in the law of guardianship in Newfoundland and Labrador; however just like the Province enacted the Advance Health Care Directives Act in response to a legislative gap that was illuminated by the court decision in Re A.M.S. in 1993, it is preferable (and long past time) for the House of Assembly to enact specific legislation for Guardianship of the Person and to review the aspects of the Mentally Disabled Persons Estates Act that should be updated, particularly in light of the commitments that have been made by Canada in the Convention. This will bring further clarity to the issues of when guardianship will be appropriate (while maintaining an approach that recognizes each case is unique), how the interests of the disabled person ought to be canvassed and represented in guardianship proceedings where necessary and whether there are aspects of decision making that can nevertheless be reserved for the individual, notwithstanding their need of protection in relation to other kinds of decisions.
1 The Mentally Disabled Persons’ Estates Act (Newfoundland and Labrador) provides for the court appointment by the Court of guardians of the property of a “mentally disabled person” but that authority is limited to the custody and management of that person’s property and finances.
2 This imperial enactment is continued as part of the jurisdiction of the Supreme Court of Newfoundland and Labrador Trial Division by virtue of paragraph 3(1)(a) of the Judicature Act (Newfoundland and Labrador).
3 The Court noted that while the Public Trustee Act, 2009, SNL 2009, c P-46.1 only specifically mentions the Public Trustee acting as guardian of estates that paragraph (k) of section 4(2) is sufficient authority for the Public Trustee to act as guardian of the person in an appropriate case.
4 The Adult Protection Act (Newfoundland and Labrador) which deals with the intervention by government authorities to protect adults in need of protection” from circumstances in which they are subject to abuse or neglectful, was enacted in 2011, does appear to address issues such as notice of proceedings to the affected individual and the wishes of individuals affected by statutory proceedings under the Act.