Frequently Asked Questions about Adult Capacity and Decision-making

 

Who can represent an adult?

Any person can represent an adult who cannot make all of their own decisions. Usually it is a family member, but not always. The representative must be at least 19 years old, know the adult well, and must respect the adult’s rights, freedom, and liberty.

To represent an adult, a person applies to the court. The court decides if the person is a suitable representative. The person must prove that the adult cannot make some decisions. The adult has a right to participate in the court process and to receive legal advice and support if they want.

How do we know if an adult cannot make all of their own decisions?

A health professional does a capacity assessment. Physicians and psychologists can do these assessments. With training, nurses, occupational therapists, and social workers will also be able to do them.

The adult has the right to refuse a capacity assessment.

What decisions can a representative make for the adult who cannot make all of their own decisions?

The court sets limits on what decisions can be made for the adult based on the adult’s capacity assessment. The representative can only make decisions for the adult that the adult cannot make for themselves.

The representative must also think about the adult’s prior instructions, wishes, values, and beliefs when making decisions. The representative must make sure the adult understands the decisions and is aware of decisions being made as much as possible. Representatives must encourage and facilitate the adult’s participation in decision-making.

Representatives must make the least restrictive and least intrusive decisions possible.

The court can also limit how long a person can represent another adult, say that regular reviews must happen - During a court review of a representation order, the court assesses the adult’s ongoing needs, assesses any changes in their need for representation, and looks at decisions the representative has made. The representative is responsible for preparing the application for review. A capacity assessment report completed within the last six months needs to be included in the review application. For information on applying for a review, see the Guide on Applying for a Review of Adult Guardianship/Representation (PDF).

The court can also say the representative must provide regular reports to the Public Trustee or others, about how things are going - The court may order the representative to report regularly to the Public Trustee, or others, on any matter. A representative would then be responsible for providing the required information, such as the decisions that the representative has made since the order was granted or since the last report, information about the adult’s personal care or health care, or an accounting of financial activities.

Are there other limits on decision-making by a representative?

Yes. Representatives cannot make or change the adult’s will. Representatives cannot pretend to be the adult when communicating with others. Representatives can give gifts to the adult’s loved ones out of the adult’s property, but only if the court has agreed.
There are also some other decisions that a representative cannot make unless the court has ordered it.

What other duties and responsibilities do representatives have?

  • Keep records - The representative is responsible for keeping a record of the decisions they make for the adult.
  • Reassess the capacity of the adult - If the representative believes the adult’s capacity for decision-making in an area has changed, they must have the adult’s capacity reassessed and the representation order updated to reflect that change. Representatives are required to assist in arranging an assessment of the adult’s capacity whenever they believe that there has been a change in their decision-making capacity or if the adult requests it (although they are not required to arrange such reassessments any more frequently than every six months).
  • Provide reports when required by the court – A representative must provide reports to the Public Trustee, the court, or another person if they are ordered to do so by the court.
  • Keep the adult’s personal information safe – Representatives can only get personal information about the adult that is necessary for decision-making. Representatives must only use the adult’s personal information for that purpose and make sure no one else can access or use the information.

What if someone doesn’t like the job the representative is doing?

Any person - including the adult - can complain to the Office of the Public Trustee if they don’t like the decisions the representative makes. Or the decisions a guardian under the Incompetent Persons Act makes. For example, if they think the representative or guardian is acting beyond the decision-making authority given to them in the court order, is abusing the adult, or otherwise acting inappropriately, they can complain to the Public Trustee’s Office or apply to the court for a review of the order.

Are representatives entitled to reimbursement for their out-of-pocket expenses or to a fee for their services as representative?

Representatives can be reimbursed for their out-of-pocket expenses from the adult’s property. A representative may also choose to request compensation for their time in carrying out their duties and responsibilities. This request would be made to the court in the representation application. The court will decide whether and how much compensation should be paid up to the maximum amounts set out in the Regulations. However, no compensation may be taken from funds coming from a government income maintenance or supplement program.
If the representative is given decision-making responsibility that requires legal services and instructing counsel on behalf of the adult, legal costs may also be paid from the adult’s property.

Representatives may also ask in their representation applications for the cost of the capacity assessment and the other costs of making the application to be paid out of the adult’s property.

What do you do if a representation order is no longer needed because the adult now has the ability to make their own decisions?

First, the representative and the adult should get a qualified capacity assessor to confirm that the adult can make their own decisions in some or all areas. If the capacity assessor determines the adult can make their own decisions, the representative and the adult (or the adult on their own) may bring a review application to have the order reviewed by the court.

An adult who wants to change a court order under the new law, or under the Incompetent Persons Act, is able to get legal support from Nova Scotia Legal Aid. The adult may need help with contacting Legal Aid and making arrangements to receive legal support.

What happens if the representative is unable to act?

If a representative dies, becomes incapable, or is for any other reason unable to act, and if there is no alternate representative who is willing and able to act, then the Public Trustee may exercise the authority of the representative until another person is appointed. It is always a good decision to have an alternate representative named in the representation application.

Can a representative take a break?

Yes, but only if an alternate representative is named in the representation order.

Can a representative change their mind about being a representative?

Yes. If a representative decides they no longer wish to be a representative, they can make an application to the court to be removed.

What happens when the adult dies?

The representative’s authority ends when the adult dies. An executor or administrator will be responsible for the administration of the adult’s estate.  If the representative was responsible for the adult’s financial decision-making, the representative will be required to submit financial accounts to the court within two months of the adult’s death.

Need more information?

The Office of the Public Trustee can provide general legal and procedural information only.

Phone: (902) 424-7760
Email: publictrustee@gov.ns.ca

For legal advice, consult a lawyer.

To speak with or hire a lawyer, the Lawyer Referral Service operated by the Legal Information Society of Nova Scotia (LISNS) can be contacted. The Lawyer Referral Service will provide the names of several local lawyers interested in this area of practice. To contact the Lawyer Referral Service, visit Legal Info Nova Scotia's Lawyer Referral Service web page.

The Act and Regulations can be found on the Nova Scotia Government web site: