Nova Scotia has a new law called the Adult Capacity and Decision-making Act. On December 28, 2017, it replaces the Incompetent Persons Act. This new law is for adults who cannot make all decisions for themselves. They may not be able to make some decisions because of a learning disability, mental health problems, brain injury, or for other reasons. This law allows another person to make some important decisions for them.
An adult who has capacity to make decisions can plan for a time in the future when they may no longer be able to make decisions for themselves. They can create an Enduring Power of Attorney to give someone they trust the authority to make legal and financial decisions for them in the future. They can write a Personal Directive appointing someone to make healthcare decisions for them in the future.
The Adult Capacity and Decision-making Act is for people who cannot make those decisions for themselves.
All adults have the right to make their own decisions unless it can be shown that they cannot. If it can be shown that an adult cannot make some decisions, another person can apply to court to represent them and make those decisions.
Alice had a stroke a few years ago. Today she is mostly recovered and lives on her own. Alice can cook and clean and take care of herself. But she cannot manage her money any more.
Alice’s brother Fred is worried about her. When Alice’s husband died, he left her some money. Fred doesn’t think Alice can manage that much money. He wants to take care of it for her. So, Fred applied to the court to represent Alice in making decisions about her money.
First, the court asked for proof that Alice can no longer manage her money. Alice’s doctor did an assessment and agreed Alice cannot manage her money.
Then the court gave Fred permission to make decisions about Alice’s money. Those are the only decisions Fred can make for her. Alice is still in control of everything else.
If she decides she doesn’t want Fred managing her money, she can ask the court to change the order. She can also complain to the Office of the Public Trustee if she doesn’t like the way Fred manages her money.
The purpose of the new law is to:
Under this new law:
Guardianship orders continue as representation orders. Guardians become representatives. This means that you now have the same duties and obligations as new representatives under the new law. If a guardian knows or believes that the adult can make decisions in some areas, the guardian must return to court to have the order reviewed.
Any person, including the adult, can now ask the court to review an order.
If you became a guardian under the Incompetent Persons Act and you believe the adult can make decisions in some areas, you can get more information about how to return to court to have the order reviewed by reading Guide on Applying for a Review of Adult Guardianship/Representation (PDF).
If an application for representation is being made, the adult’s ability to make decisions must be assessed by a professionally qualified capacity assessor.
The assessor prepares a capacity assessment report, which includes the capacity assessor’s determination whether the adult is unable to make decisions in one or more areas. Capacity assessments can be carried out by:
Nova Scotia has several laws dealing with how decisions affecting an adult will be made when that adult is unable to make their own decisions. For example, the Powers of Attorney Act allows Nova Scotians who can make their own decisions now to name an adult to make financial decisions for them in the future if they later become unable to make their own decisions. The Personal Directives Act allows Nova Scotians who can make their own decisions now to name an adult to make personal care and health care decisions for them in the future if they later become unable to make those decisions for themselves.
Before representation is considered for an adult, it is important to know whether the adult has an Enduring Power of Attorney and a Personal Directive and what those documents say. If they do, a representation application is often unnecessary. The court is unable to appoint a representative for any area of decision-making covered in an existing personal directive or enduring power of attorney.
If you have concerns about how a power of attorney or personal directive is being used by someone, or potential abuse, the court will need to review the situation. A lawyer can help with this.
All Nova Scotian adults are recommended to discuss their wishes with loved ones and, if they can, to create an enduring power of attorney and a personal directive to protect their interests and property in the future. These documents assist our families and close friends when we are unable to make our own decisions.