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

International Journal of Law and Psychiatry, Vol. 23, No. 1, pp. 61–77, 2000 Copyright © 2000 Elsevier Science Ltd Printed in the USA. All rights reserved 0160-2527/00 $–see front matter

PII S0160-2527(99)00034-5

The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making Robert M. Gordon*

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, Hayes, & Howitt, 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 & 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

*Associate Professor and Director, School of Criminology, Simon Fraser University, Burnaby, British Columbia V5A 1S6, Canada. Address correspondence and reprint requests to Prof. R. M. Gordon, School of Criminology, Simon Fraser University, Burnaby, British Columbia V5A 1S6, Canada; E-mail: [email protected] 1See. e.g., Adult Guardianship Act, R.S.B.C. 1996, c. 6; Representation Agreement Act R.S.B.C. 1996, c. 405; Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181; Public Guardian and Trustee Act, R.S.B.C. 1996, c. 181 (most of this legislation will come into force on February 28th 2000). 2Dependent Adults Act, R.S.A. 1980, c. D-32 (as amended); Dependent Adults Act, S.S. 1989–90, c. D-25.1. 61

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new adult protection statutes designed to deal with cases of abuse and neglect, especially of the elderly (see, e.g., Gordon, 1995; Gordon & 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 policymakers 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. 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

3See,

e.g., Adult Protection Act, R.S.N.S. 1989, c. 2; Adult Protection Act, R.S.P.E.I. 1988, c. A-5. note 1, supra; and Substitute Decisions Act, S.O. 1992, c. 30 (as amended); Health Care Consent Act, S.O. 1996, c. 2. 4See,

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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 substitute decision-making and the option is strongly supported by organizations representing the interests of people with mental (intellectual) disabilities; notably, the national and provincial associations for community living. Other organizations, especially those representing the interests of older Canadians, have also recognized the potential of assisted decision-making for their constituencies (see, e.g., McKenzie, Tod, & Yellen, 1995). The adoption of assisted decision-making reflects Scandinavian developments in the adult guardianship field, many of which underpin the agenda of the associations for community living in Canada. Wolf Wolfensberger, the celebrated author of the ground breaking text Normalization (Wolfensberger, 1972), was closely associated with the National Institute on Mental Retardation at York University in Toronto during the 1970s, and his work has its origins in the provision of services for mentally disabled people in Scandinavian countries. Many of the policies, programs, and reforms proposed by the associations for community living (particularly, the umbrella, national association) reflect the ideas articulated by Wolfensberger, and the discourses about law reform are no exception (see, e.g., Canadian Association for Community Living, 1992). The concept of the “dignity of risk,” for example, is consistently used in the associations’ arguments for reform and can be traced to Wolfensberger’s principal text.5 According to Blankman (1997), legislation in both Norway and Sweden provides for the appointment of “assistants” and “advocates” to help adults (mainly with their financial affairs) without the loss of general legal capacity. Similar legislation has been introduced in Denmark. In Norway, since 1990, legislation has made provision for two levels of intervention in cases where adults are experiencing difficulties with decision-making: the appointment of an “assisting representative”; or the use of a “support person.” If an assisting representative is appointed, the affected adult’s legal capacity is removed only when necessary and the representative’s decisions will prevail only under carefully prescribed circumstances. A support person is used only to assist an adult with his or her personal needs and in the expression of his or her interests (Blankman, 1997). Significantly (for Canadians), the idea of using an assistant, as opposed to a substitute, decision-maker can be found in the old interdiction provisions of the 1866 Civil Code of Lower Canada. The Superior Court of Quebec could appoint a judicial adviser for a person who was not insane but who was of “weak intellect or inclined to prodigality” and who was “arousing the fear that he would dispose of his property” (Gordon & Verdun-Jones, 1992). The specific intent was to avoid the need for interdiction, which would result in the ap-

5The concept of the “dignity of risk” has been defined by Hommel (1996, p. 230) as the placement of “greater value on respecting the individual’s right to decide– even when a person’s choices may seem foolish to others—than on protecting the “best interests” of the individual.”

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pointment of a curator (plenary guardianship). These provisions, and this alternative to the appointment of a tutor or curator, still exist in the Quebec Civil Code although the language has been modified.6 The origins of the judicial adviser are unclear but, like many provisions of the old Civil Code, can be traced to the Code Napoleon. Temporary and long-term advisership options (the sauvegarde de justice and the curatelle) can be found in the curatorship provisions of the current French Civil Code, which was changed in 1968 (Blankman, 1997). In many cases, assistance of the kind provided by a representative or adviser is the only form of intervention that an adult requires, coupled with some formal recognition of the role and status of the person providing the assistance (see, e.g., Canadian Association for Community Living, 1992). Such recognition is especially important when the person providing, and the person receiving, assistance are dealing with third parties (e.g., an individual offering accommodation for rent, or a financial institution) who are skeptical about, and therefore challenge, the authority of an assistant to participate in dealings with an adult. Under these circumstances, it helps immensely if an adult’s assistant decision-maker is formally recognized and recognizable. Unlike guardianship and substitute decision-making, assisted decision-making does not involve a loss of legal capacity on the part of the affected adult. The person retains his or her status as a juridical person; that is, a legal entity vested with rights, powers and responsibilities. An example of assisted decision-making helps to illustrate the value of the concept and the kinds of circumstances under which it is used: M., an individual known to the author, obtained work in central British Columbia and left the Vancouver area. One night, while driving between two towns, M. was struck head-on by another vehicle and suffered massive trauma, including injury to the brain. M. was reconstructed over the course of 4 years but has suffered irreparable brain damage resulting in short-term memory loss and problems with both complex writing tasks and calculation. M. now works part-time, receives considerable support from family and friends, and generally enjoys life to the full within limits. M. is able to make decisions independently to the extent that he understands and appreciates the consequences of a wide variety of everyday choices. Sometimes, however, M. is quite bewildered (and consequently embarrassed and frustrated) by complex decisions involving financial matters and will frequently forget to complete a task. M. needs, and now asks for and receives, occasional assistance in the form of careful and patient explanation and clarification of anything that he feels

6Civil Code of Quebec, S.Q. 1991, c. 64, art. 258. An adviser may be appointed to assist a person of full age who is incapable of caring for him/herself or of administering his/her property by reason, in particular, of illness, deficiency, or debility due to age which impairs his/her mental faculties or his/her physical ability to express his/her will. An adviser can also be appointed for a prodigal who endangers the well being of his/ her spouse or minor children.

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will tax his abilities. M. makes some decisions independently, and some with assistance. One of the points often made in support of assisted decision-making—and it is a compelling point—is that the concept simply recognizes the way in which most adults function in their everyday lives (see, e.g., Canadian Association for Community Living, 1992; Gordon & Verdun-Jones, 1992). It is argued that independent decision-making is a myth; that every adult uses interdependent decision-making in the course of getting through the day. In complex, postindustrial and postmodern societies there is a high level of dependency upon the skills, acumen, ability, and knowledge of others when a variety of decisions are to be made. Many individuals use accountants and investment brokers, some purchase the services of lawyers, others seek the counsel of members of the clergy. Most use the services of health care professionals, who will often assist with complex health care decision-making. Assistance may also be sought, sometimes routinely and without thinking, from a wide variety of professionals, artisans and other assorted experts, depending upon the decision that has to be made. Assisted decisions are made about interior decoration, horticulture, cranky computers, and malfunctioning automobiles, to name but a few. Assistance is sought because the adult faces a decision (or decisions) that require both an understanding and an appreciation of the consequences of a choice or option that presents itself, or because he or she needs a skilled agent to carry out certain tasks (e.g., the completion of an income tax return). Most adults, when asked to reflect upon normal decisionmaking practices in their daily lives, usually realize the extent to which they engage in interdependent decision-making. Importantly, this interdependence is not seen as indicative of mental incapability. Many, if not most, daily living decisions are made independently by the majority of adults: what to wear, what to eat, what to do with one’s leisure time, when to receive health care, when to purchase an item, etc. Opinions are often sought from sage advisers (e.g., a friend, relative, or spouse) about some of these routine decisions but, in the main, most adults habitually follow patterns of everyday decision-making without question and without difficulty. Some people require more in the way of support and assistance than others, and with respect to more areas of decision-making than others; it is a matter of degree, rather than a case of absolutes. Assisted decision-making is being acknowledged in Canadian adult guardianship and substitute decision-making legislation. It is expressly referred to in the new health care consent statutes of two provinces—British Columbia and Prince Edward Island. In British Columbia, health care providers are encouraged to ask an apparently mentally incapable patient’s family and friends to assist the patient with health care decision-making and communication; in Prince Edward Island, a patient has a right to be assisted by an “associate” (a trusted adviser) when making health care decisions.7 Equally importantly, as-

7See, Health Care (Consent) and Care Facility (Admission) Act (B.C.), § 3 & 8; and Consent to Treatment and Health Care Directives Act, S.P.E.I. 1996. c. 10, § 4.

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sisted decision-making has appeared in new adult guardianship legislation in three main ways: as a specific court-ordered alternative to substitute decisionmaking or guardianship; as a specifically identified and defined alternative to an application for a guardianship order; and as an indirectly identified and undefined alternative to such an application. Each of these will be briefly explored.

Assisted Decision-Making As a Specific Court-Ordered Alternative Both British Columbia and Quebec have enacted three-tier systems of court-ordered guardianship and substitute decision-making. The purpose is to distinguish between different kinds of support and assistance and to ensure that when a court-ordered intervention occurs it is the most effective but least restrictive, least intrusive, and least stigmatizing way of meeting the affected adult’s needs. In British Columbia, the Adult Guardianship Act (not yet in force) distinguishes between three kinds of orders: guardianship; substitute decision-making; and associate decision-making.8 The last of these is the equivalent of assisted decision-making and an associate decision-maker can help the affected adult to make decisions in a wide range of areas including personal care, health care, and financial decision-making. In Quebec, the Superior Court may appoint a curator, a tutor, or an adviser, depending upon the adult’s level of need.9 An adviser provides assistance only in the area of financial decisionmaking. As we have seen, the concept of the adviser is not new. In both provinces, a modicum of legal status and recognition are given to the individuals who provide assisted decision-making. These individuals will frequently be the adult’s family or friends, but could be volunteer advocates from community advocacy organizations if the court was satisfied that an advocate was qualified and suitable.10 There are no data with respect to the use of associate decision-makers in British Columbia because the legislation is not yet in force. In Quebec, about 4% of Superior Court orders are for the appointment of advisers (Gordon & Verdun-Jones, 1992). The figure is low because of the increasing use of the Quebec equivalent of enduring powers of attorney of the person and property (mandates) and because an adviser is only able to assist in the area of financial management. Neither an associate decision-maker (British Columbia) nor an adviser (Quebec) can make a legally binding or legally effective substitute decision on the affected adult’s behalf. They can only assist the adult to make a decision (Gordon & Verdun-Jones, 1992). However, there is some limited release from liability if the adult who has a court-appointed associate or adviser acts independently when he or she should act interdependently (i.e., with the assistance of the associate or adviser). In British Columbia, for example, a contract or an agreement (e.g., a rental agreement) is voidable if the adult who has a court-

8Supra,

note 1, § 6–24. Code of Quebec, S.Q. 1991, c. 64, arts. 281–293. 10See, e.g., the Adult Guardianship Act, (B.C.), § 7. 9Civil

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appointed associate decision-maker fails to consult with the associate prior to signing the contract or agreement.11 Note, it is voidable, not void (i.e., automatically invalid). This mirrors the common law situation with respect to contracts entered into by persons with mental disabilities (see, e.g., Robertson, 1994).

Assisted Decision-Making As a Specifically Identified and Defined Alternative to Court-Ordered Guardianship Assisted decision-making may be specifically identified and defined in a statute as an alternative to court-ordered guardianship rather than as an option available to a superior court that is asked to make an order. Provisions of this kind are found in Manitoba’s new Vulnerable Persons Living With a Mental Disability Act12 and the new Prince Edward Island Supported DecisionMaking and Adult Guardianship Act.13 The Manitoba legislation is unusual (for Canada) in that it is focused solely upon the needs of adults with mental (intellectual) disabilities, to the exclusion of, for example, adults with mental illnesses.14 The reasons why adults with, for example, mental illnesses, degenerative diseases of aging, or brain injuries have been denied the benefits of the Act are unclear and it remains to be seen whether the legislation will survive a challenge under section 15 of the Canadian Charter of Rights and Freedoms (the so-called “equality rights” provisions). The Act repeals and replaces the old “mental retardate” provisions of the Manitoba Mental Health Act15 and clearly reflects the lobbying efforts of the associations for community living, which may explain the special focus. The preamble to the Act contains a restatement of the common law presumption of capacity, and four principles which clearly endorse assisted decision-making. These principles may be summarized as follows: the importance of encouraging people to make their own decisions; the importance of a person’s “support network” for the purposes of assisting with decision-making and enhancing the person’s independence and self-determination; the doctrine of the least restrictive and least intrusive form of intervention; and the principle of using (court-ordered) substitute decision-making only as a last resort. These principles, and the primacy of assisted (supported) decision-making are mirrored in the provisions of the Act. Section 6 (2), for example, provides that “supported decision-making by a vulnerable person with members of his or her support network should be respected and recognized as an important means of enhancing the self-determination, independence and dignity of a vul-

11Adult

Guardianship Act (B.C.), § 24. 1993, c. 29. A vulnerable person is defined as “an adult living with a mental disability who is in need of assistance to meet his or her basic needs with regard to personal care or management of his or her property” (§ 1). 13S.P.E.I. 1997, c. 49 (not yet in force). 14A mental disability is defined as “significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years, but excludes a mental disability due exclusively to a mental disorder” (§ 1). 15R.S.M. 1987, c. M110 (as amended). The “Mental Retardate” provisions were set out in Part II of the Act. 12S.M.

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nerable person.” The wording is unusual insofar as an unenforceable, legalmoral imperative, rather than a statutory duty, is created by the use of the word “should.” However, the provision is of significance further on in the Act where the procedures for appointing a substitute decision-maker are spelled out.16 Here, the use of support networks and supported decision-making are clearly articulated as preferred alternatives to a formal application for the appointment of a substitute decision-maker. Some unique and useful definitions are provided in the Act. These are of considerable importance because they constituted the first statutory statement of the key concepts in the area of assisted (supported) decision-making in a Canadian jurisdiction. Supported decision-making, for example, is defined as “the process whereby a vulnerable person is enabled to make and communicate decisions with respect to personal care or his or her property and in which advice, support or assistance is provided to the vulnerable person by members of his or her support network.”17 As the definition implies, assistance extends to not only the deliberation necessary for decision-making but also the communication of a decision that has been made by an adult. It is now widely recognized that adults communicate effectively in different although sometimes unusual ways and that those who, for example, conduct assessments of incapability should consider the use of communication aids and/or reliable “interpreters” such as close family members, before reaching conclusions about an adult’s decision-making abilities (see, e.g., Glass, 1997; Gordon & VerdunJones, 1992; Silberfeld & Fish, 1994). Technological advances, including computer-assisted voices, have taken the science of communication way beyond the Bliss symbols board and this is being recognized in adult guardianship legislation.18 Another important concept is defined in the Act, namely, a “support network.” As Gordon and Verdun-Jones (1992) have pointed out, these kinds of networks are a critical but often vaguely defined feature of assisted decisionmaking. Various names have been used to describe such groups—support circles, circles of friends, and “Joshua Committees” being three common terms— and, as Marlett (1984) puts it, a support network, “. . . functions as an extended family; it becomes the main source of friends and social activities, a haven, and an information resource” (p. 101). Indeed, in most jurisdictions, support networks are informal arrangements comprising an adult’s friends, family and/or care providers, although organizations (e.g., an association for community living) may provide assistance for those who wish to form a network. In one jurisdiction—Ontario—support networks achieved their ultimate, bureaucratic expression in the form of the short-lived provincial social advocacy scheme (see, e.g., Gordon & VerdunJones, 1992 (1995 supplement); an expensive social experiment that is clearly

16The

Vulnerable Persons Living With a Mental Disability Act (Man.), § 46– 56. § 6. 18See, e.g., the Adult Guardianship Act (B.C.), § 3; and the Health Care (Consent) and Care Facility (Admission) Act (B.C.), § 3. Both statutes provide that a decision about a person’s ability to make decisions must not be based solely upon the person’s method of communication. 17Supra,

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not to be repeated in Manitoba. In the latter province, the Act defines a support network as “one or more persons who provide advice, support or assistance to a vulnerable person.” A network may include the vulnerable person’s spouse, other members of the vulnerable person’s family, and “others chosen by the vulnerable person.”19 The Prince Edward Island Supported Decision-Making and Adult Guardianship Act provides for supported decision-making in the form of a “supported decision-making agreement”20 that can be made by any person over the age of 18 years. The Act contains a set of guiding principles that are similar to those found in the Manitoba (and British Columbia) legislation and that endorse such things as the common law presumption of capacity, the use of court-ordered guardianship only as a last resort and only after support and assistance have been tried or carefully considered, and an adult’s right to be involved, to the best of his or her ability, in decision-making that affects their life.21 Supported decision-making applies to adults who do not need guardianship but who would have difficulty making or communicating decisions were it not for the assistance of a trusted friend or relative.22 An adult may enter into an agreement with one or more “associates” whom, subject to the terms and conditions of the agreement, are to assist the adult with decision-making and communication. Associates may, for example, act jointly or successively, and an agreement may name alternate (i.e., deputy) associates. Associates have prescribed responsibilities that include, assisting the supported person to make and express decisions, advising the person about decisions that have to be made, and ascertaining and communicating the person’s wishes and decisions.23 Although associates are not to make substitute decisions for an adult, any decision that is made or communicated with an associate’s help is recognized as the supported adult’s decision.24 To be valid, an agreement must be registered with the Public Guardian, who is also charged with the task of receiving, investigating, and resolving complaints about the conduct of an associate.25 A similar alternative to court-ordered guardianship has been enacted in British Columbia where some provisions of the Representation Agreement Act26 are clearly designed to facilitate the use of the equivalent of “supported decision-making agreements.” The general scheme of the Act is much broader (it seeks to amalgamate various kinds of planning documents into one form of agreement), but an adult may make an agreement with one or more representatives which limits the powers and authority of the latter to assistance and support rather than substitute decision-making.27 19Supra,

§ 1. note 12, § 5– 10. 21Supra, § 4. 22Supra, § 5. 23Supra, § 6. 24Supra, § 8. 25Supra, § 9. The Public Guardian office has not yet been established. 26R.S.B.C. 1996, c. 405. 27Supra, § 4– 8. 20Supra,

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Assisted Decision-Making As an Indirectly Identified and Undefined Alternative In some jurisdictions, assisted decision-making is identified and acknowledged indirectly and is not defined in the pertinent legislation. Assisted decision-making is something to be taken into account prior to an application for guardianship, or at the time an order is reviewed. The best examples are found in the Northwest Territories (the Guardianship and Trusteeship Act )28 and, to a lesser extent, in Ontario (the Substitute Decisions Act).29 In the Territories, the provision of decision-making assistance to an adult is to be considered at various key points in the process of applying to the court for the appointment of a guardian or trustee.30 These points may be summarized as follows: when a report is being prepared by a medical practitioner, a registered psychologist, or a person assigned by the Public Guardian, prior to an application being made for guardianship and/or trusteeship; when the court is considering whether or not to make an order; and, when the court reviews a guardianship order (but not a trusteeship order) at a later date.31 These requirements allow cases to be diverted to less restrictive and intrusive alternatives before and after court proceedings have commenced. The provisions are important filters, or hurdles, which can be used to good effect if support and assistance are available for the affected adult. In addition, the notion of assisted decision-making is clearly embedded in the definition of capability set out in the Act; at least, that part of the Act dealing with guardianship (of the person). Section 12 (1) provides that a person is capable if he or she has the ability, “by himself or herself or with assistance, to understand information that is relevant to making a decision” about a variety of personal guardianship matters, and the ability, “by himself or herself or with assistance, to appreciate the reasonably foreseeable consequences” of such decisions (emphasis added). Interestingly, the definition of capability applies only to decisions about whether the adult needs a guardian of the person, as opposed to a trustee of the estate. In Ontario, the much-assailed Substitute Decisions Act also provides room for the use of assisted decision-making prior to the appointment of a guardian. The court is under a duty not to appoint a guardian of property, or of the person, if it is satisfied that the need for decisions to be made for an incapable adult will be met by an alternative course of action that does not require a finding of incapability, and that is less restrictive of the adult’s decision-making rights.32 These provisions clearly open the door to assisted decision-making, if appropriate support and assistance can be made available to an adult, but the legislation does nothing to encourage the development of such alterna28Bill

3, 1994. In force, July 1st 1997. 1992, c. 30. 30Like Alberta, the Territories’ legislation distinguishes between a “guardian” with responsibility for an adult’s personal care and health care needs, and a “trustee” with responsibility for an adult’s property and financial affairs. 31The Guardianship and Trusteeship Act (N.W.T.), § 2 (3); 7 (1); 14 (1); 29; & 31. 32Substitute Decisions Act (Ont.), § 22(3) & 55(2). 29S.O.

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tives. Once at the forefront of adult guardianship law reform in Canada, Ontario’s embrace of assisted decision-making has, since 1995, been decidedly quiet and almost reluctant, especially when compared to the bolder initiatives in other jurisdictions. Arguably, the demise of the Ontario Advocacy Act,33 and the attendant system of public advocacy, in 1995 signaled the provincial government’s intention to keep adult guardianship law reform within relatively traditional and distinctly conservative parameters. The emergence of assisted decision-making marks a significant break from both the common law presumption of (absolute) capacity and the doctrine of free will that are embedded in the theory of independent decision-making: the idea that an adult has the right to make decisions for him or herself, without interference and, of course, to reap the harvest (bitter or otherwise) of those decisions. It is an extension of a long-standing recognition, in adult guardianship law, of the importance of both time and power limited guardianship orders and the duty of court-appointed guardians to assist adults to make decisions whenever possible, rather than automatically making decisions for them.34 It reflects new efforts to provide better ways of recognizing and meeting the needs of adults who have difficulty with certain areas of decision-making but who could make their own decisions with a little friendly help. It is a product of a new philosophy of adult guardianship and substitute decisionmaking that rejects benign paternalism and embraces principles such as the right to autonomy and self-determination, the right to the least restrictive alternative, and the use of stigmatizing court-ordered interventions only as an absolute last resort (Gordon & Verdun-Jones, 1992). Although the issue of assisted decision-making has yet to be specifically examined by the courts in Canadian (and other) jurisdictions, the emergence of a statutory recognition of this alternative to a court-appointed guardian or substitute decision-maker is beginning to have an impact on the judiciary. In the recent Ontario case of Re Koch35 Quinn J. of the Ontario Court (General Division) made it clear that if an adult was able to make decisions with the help of others then mental capacity existed. In a judgement that was critical of the process of conducting assessments of incapability under both the Substitute Decisions Act and the Health Care Consent Act the judge endorsed a number of concepts underpinning assisted decision-making. These included, the importance of not assuming incapability on the basis of an apparent disability; the need to avoid the immediate imposition of decisions in the “best interests” of an adult because that person seems unable to understand and appreciate the risks and consequences of a decision; the right of every adult to voluntarily assume risks as an aspect of the dignity of the individual; and the impact of adequate support and assistance in an adult’s environment. In the judge’s view,

33S.O.

1992, c. 26 . of these important ideas were introduced to Canada in the mid-1970’s through the Alberta Dependent Adults Act. The requirement that guardians of the person assist dependent adults with decisionmaking whenever possible was one of the novel features of the legislation, and displaced the prevailing ethic of benign paternalism. 35(1997) 33 O.R. (3d) 485 (Ont. Gen. Div.). 34Both

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It is to be remembered that mental capacity exists if the appellant is able to carry out her decisions with the help of others. The appellant’s apartment was located in a building that was operated under the auspices of (a charitable organization) and, as such, she had access to a number of services and social supports that allowed her to function in that environment.36 It remains to be seen whether other Canadian courts are as enthusiastic in their endorsement of the principles of assisted decision-making.37 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 court-ordered guardianship (see, e.g., Smyer, Schaie, & Kapp, 1996; Zimney & Grossberg, 1998). The discussions about alternatives are focused, instead, on the development of planning documents (e.g., enduring powers of attorney), the creative use of trusts (e.g., income and discretionary trusts), and the enhancement of representative payee and other schemes of surrogate money management (see, e.g., Kapp, 1996). Research priorities also tend to be concentrated in these areas (see, e.g., Wilber, 1996). The lack of recognition is puzzling but may be because the provision of assisted decision-making has mainly been the bailiwick of the associations for community living (and their predecessors). Experience has been concentrated primarily with the mentally (intellectually) disabled and their families and support networks rather than a broader spectrum of groups, particularly the elderly who are generally seen to be driving social policy and social reform agendas in the guardianship area. A connection has been made, however, between assisted decision-making and the related issues of competency, the assessment of incompetency (or incapability), and social advocacy. Glass (1997), for example, has noted how individuals may be competent to make decisions once assistance is provided. The availability of help when decisions have to be made, even if it is nothing

36Supra,

@ 521. the case of Clark v. Clark (1982), 40 O.R. (2d) 383 (Co Ct), was the first Canadian case where assisted decision-making was judicially recognized. The court dismissed a committeeship application brought by the parents of a young man with cerebral palsy when the man’s ability to communicate with assistance was demonstrated. More recently, in a British Columbia case (British Columbia (Public Trustee) v. Batiuk (1997) 14 E.T.R. (2d) 5 (B.C.S.C.) Vickers J. commented favorably on aspects of the concept in the context of assessments of incapacity. This bodes well for a more formal recognition of assisted decisionmaking by the courts in the near future. 37Arguably,

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more than friendly support, can mean that an apparently incapable adult may be able to make his or her own decisions. In Glass’s (1997) view, this reinforces the importance of schemes of volunteer social advocacy (sometimes referred to as “citizen advocacy”). Advocates can act as supporters, providing information, advice, and a voice for the disabled adult’s decisions, thereby promoting and strengthening the person’s autonomy (Roeher, 1984). Assisted decision-making in the form of advocacy may also be of particular value where an apparently incapable adult has no family or friends, or where the person’s normal support network has either collapsed or is in conflict (Glass, 1997). These benefits have been noted by the British Law Commission (The Law Commission, 1995) in its proposals for reform in England and Wales, and by the Queensland Law Reform Commission’s (1996) final report on the provision of assisted and substituted decisions. There are, however, some problems with the formalization of assisted decision-making; that is, both the creation of advocacy services and the statutory acknowledgement of support as something that may be ordered by a court. The Queensland Law Reform Commission (1996), for example, has expressed concern that the official recognition of assisted decision-making, particularly in the form of a statutorily prescribed option for guardianship tribunals, may undermine, or even destroy, what may be best preserved as an informal arrangement involving caring and trusting individuals. Legal formalism cannot compensate for the absence of the bonds that link the individuals in an adult’s network of family and friends—what Roeher (1984) has called “natural advocates”—and this concern is reflected in the British Law Commission’s (The Law Commission, 1995) wise rejection of systems of public advocacy such as the scheme attempted in Ontario. A formal recognition of an assistant decision-maker may be additionally problematic where the decision-maker, perhaps a volunteer social advocate, is appointed by a court even though the adult has a family and friends. As Glass (1997) points out, this may create an adversarial relationship between the adult and his or her family and friends, the advocate providing assistance, and those seeking a decision from the adult (e.g., a health-care provider). Clearly, in any formalized scheme of supported decision-making, even one where the only formality lies with the court’s recognition of a family member or friend as the assistant decision-maker, great care must be taken not to disrupt existing and effective networks of support that surround the affected adult. A formalization of what, for some, should be an informal arrangement involving the family and friends of an adult with a disability may not reflect the realities of involvement in a support network, especially where the person providing assistance is not part of the adult’s existing circle of family and friends. Supported decision-making is more than a formal legal status granted by a court; it is a process that occurs over time and that will invariably require more than a short-term commitment to address a particular and temporary need. In the case of those with brain injuries or with intellectual disabilities, for example, assisted decision-making may only be effective if there is a longterm commitment on the part of the person providing support. In the case of many young adults with disabilities this could mean a lifetime commitment on the part of a member of the person’s support network.

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An equally critical question, especially in times of fiscal restraint, is “who is to provide the assistance in the absence of family and friends?” While there is little appetite for formal, state sponsored social advocacy schemes, community advocacy organizations, especially within the community living movement, are experimenting with the development of support networks for adults who do not have family and friends who are willing and able to provide support and assistance.38 At first blush, this is a positive development that bodes well for the future of networks. However, the extent to which nonprofit organizations can be expected to handle what will probably be increasing caseloads on a volunteer basis does not appear to have been addressed by either governments or the affected organizations. Many adults, especially those being discharged from residential facilities to community living, have been institutionalized all their lives and have no community supports. For some, parents have grown old and are, themselves, in need of support and assistance, while siblings and other relatives may display little interest in providing help. For these adults, assisted decision-making may be nothing more than a pipe dream. The issue of resources aside, the practice of assisted decision-making contains several problems that form the nucleus of growing skepticism and criticism. As we have seen, assisted decision-making involves enabling the affected adult to make decisions about a wide range of matters that affect him or her (e.g., health care and financial issues), and then to communicate such decisions to those who need to know what the decisions are (e.g., a health care provider). It does not involve actually making the decision for the adult (i.e., substitute decision-making). Enabling the affected adult to make a decision involves the communication of information and the provision of advice but without coloring the outcome: an immensely difficult task given the laudable human propensity to protect those perceived to be vulnerable from the exercise of their own poor judgment (Buchanan & Brock, 1989). Yet, it is argued, there is dignity in the risk that attends poor judgment. Further, no one learns without experiences, both positive and negative. In a sense, then, someone who provides decision-making assistance has to listen, advise, support and, perhaps, teach, but not interfere with the final decision (see, e.g., Glass, 1997). A slide into de facto substitute decision-making as a result of an understandable desire to protect the adult from the consequences of an apparently foolish decision is, therefore, one problem area. Indeed, in practice, assisted decisionmaking could involve nothing more than a new (but unintentional) brand of paternalism. On the other hand, there is a danger of neglect—of failing to act to prevent obvious and predictable harm because of a fear that intervention will betray the principles of assisted decision-making. Neglect could arise in the context of health care decision-making when a supported individual refuses to give consent to a treatment that will prevent a worsening of his or her medical condition because the individual does not fully understand and appreciate the consequences of refusal. The moral and ethical dilemmas confronting

38One

example, from British Columbia, Canada, is a private nonprofit organization known as PLAN (the Planned Lifetime Advocacy Network). See, Apolloni and Cooke (1984) and Gordon and VerdunJones (1992) for a discussion of these kinds of agencies in North America.

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a person providing decision-making assistance under these circumstances is significant and little help is available in the literature on the ethics of surrogate decision-making (see, e.g, Buchanan & Brock, 1989). The dilemmas of substitute decision-making are well-covered, but not the special problems of assisted decision-making. Assisted decision-making also contains the seeds of abuse. A person who is providing support may, for example, exert undue influence to his or her pecuniary advantage, a problem that sometimes arises with substitute decisionmakers and guardians (Gordon & Verdun-Jones, 1992). The prospect of financial abuse seems most likely in cases where the affected adult has significant assets, perhaps as a result of a motor vehicle accident settlement, and such cases could prove to be extremely difficult to detect and prosecute. These kinds of problems could become acute in the absence of any ethical guidelines for, and effective education and training of, those involved in the provision of support and assistance. Some form of effective external monitoring by, for example, a public guardian and trustee service may also be a critical safeguard and this appears to have been recognized in Prince Edward Island. The foregoing identifies some of the key issues and problems that are arising in the practice of assisted decision-making. Other difficulties include, the detection and resolution of conflicts that may arise between adults and those providing support and assistance; the kinds of assessments to use when applying for an order appointing an assistant decision-maker; and encouraging a wide acceptance of this new alternative to guardianship among those seeking decisions from supported adults (e.g., financial institutions). Each problem is important and needs to be addressed, but none seem insurmountable. Several years ago, Gordon and Verdun-Jones (1992) observed that Canada had entered . . . a major period of reform in the area of adult guardianship. In one of those twists of fate so often enjoyed by historians, [it] began almost exactly 100 years after the passage of the Imperial Lunacy Act—a statute that created a modicum of order from the mayhem of 19th century English lunacy law. That Act was preceded by vigorous and sometimes heated debate, and it had a significant and lasting impact on the development of “incompetency” legislation in Canada. (p. 6-1) As Canada approaches the next millennium, new developments in the law of adult guardianship and substitute decision-making also seem likely to have a significant and lasting impact. Assisted decision-making appears to be acquiring status as a viable alternative to court-ordered guardianship and substitute decision-making. Judicial decisions that support the alternative will serve to strengthen acceptance and encourage the necessary legal scholarship and attendant jurisprudence, and a clear doctrine of assisted decision-making may yet qualify, if not partly displace, the doctrine of parens patriae. Assisted decision-making carries with it some interesting reconsiderations of taken-forgranted concepts: the common law presumption of capability and the sanctity of independent decision-making being only two. Ironically, it is possible that

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those labeled mentally disabled may be responsible for a rethinking of some fundamental assumptions in the law of adult guardianship.

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