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GUARDIANSHIP – WHY BOTHER?

In Nova Scotia, every person ceases to be a minor, on attaining the age


of nineteen years. A person who has obtained the age of majority (19) is
deemed to be competent and capable of directing and looking after his or
her own affairs, unless declared incompetent by the courts.

The act under which a person is declared incompetent is the Incompetent


Persons Act. This is the only legislation in Nova Scotia in which to
obtain guardianship of the person and estate of an individual over the
age of majority who is incapable of making personal care decisions
and/or administrating his or her estate.

In the past, many parents of children with intellectual and physical


disabilities did not see the need for obtaining the guardianship of their
children once they reached the age of majority. Their advice and
direction was accepted, without proof of guardianship. There were few
or no problems directing medical treatment or gaining access to medical
records. A child who was disabled from birth often had minimal, if any,
assets to administer and access to those assets was not usually a problem
for parents.

The Privacy Act, the Personal Information Protection and the


Electronic Documents Act have created a trend towards the formalization
of authority to appoint persons to make decisions for children with
intellectual disabilities who have obtained the age of majority. The
Privacy Act applies to institutions, such as government institutions and
hospitals, whereas the Personal Information Protection and Electronic
Documents Act applies to individuals, such as individual medical
practitioners. Both address the privacy of records, such as medical
records and provide stiff penalties for providing access to such
records without clear authority. The keystone to providing access to

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medical information is consent. If the patient is incapable of providing
such consent, then the medical practitioner must assure himself (or
herself) that the person providing consent has the lawful authority to
do so.

There are other reasons, why obtaining guardianship of such children, is


desirable. For example, guardianship also allows one to direct the
placement of an adult child in a care facility and further allows one to be
involved in the ongoing care decisions with respect to such placement.

A number of years ago, I became involved with the parent of an adult


child with an intellectual disability, who was placed in a group home and
whose care was paid for by the provincial government. The
administrators of the home refused to keep the parent informed and
refused her access to records involving her adult child. The social
workers were of little assistance and together with the home workers and
administrators, considered the parent to be a “busybody”. Once the
parent obtained legal guardianship, under the Incompetent Persons Act,
both the home administrators and social workers took notice and ceased
trying to do an end run around the parent. The parent ultimately moved
the child to another home where the child was much happier and where
her ongoing interest and involvement were appreciated and encouraged.

The legal guardian of an adult under the Incompetent Persons Act also
has control of the “estate” of the adult. There may be few assets at first
but, when the surviving parent dies, it is not uncommon that funds are
left for the care of the child, sometimes (hopefully) in discretionary
trusts and in some cases, in the form of homes or properties, that are
designated for the care and continued living of the adult child with an
intellectual disability. In these circumstances, guardians play a crucial
role in administering the “estates” of their charges, to ensure that the
beneficiaries who have an intellectual disability, are receiving the extra
care and amenities for which their parents provided.

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The trend toward formalizing authority and obtaining guardianship of
children with intellectual disabilities who obtain the age of majority
(19), is continuing to emerge and, if anything, will become more
pronounced in years to come. Parents should consider applying for
guardianship once their children, with intellectual disabilities, reach 19
years of age, so that their authority to direct care, administer estates and
access medical information is accepted and uninterrupted.

Paul B. Miller, LLB

Prepared for the HALIFAX ASSOCIATION FOR COMMUNITY LIVING 463-4752