link to the SACL home pagelink to information about who we are link to information about what we believe link to see what is new in the SACLlink to see who governs the SACL link to information about how you can support the SACLlink to information about how to contact people at the SACLlink to stories by and about self-advocates
link to advocacy pagelink to information serviceslink to community developmentlink to traininglink to employment opportunitieslink to resource developmentlink to frequently asked questionslinks to other community living sites

What's new?

Jim tells you about this page
Can I help?

John O’Brien talks with Jerome Nicol, the Buddies/Supports Coordinator with the Saskatoon branch of the SACL. The Association provides supports for children and teens who are in Parkridge Centre and in foster care. O’Brien and Nicol spoke following a morning session in which O’Brien met with members of the Provincial Training Committee about person-centred services. It was one stop of many in the province, including workshops in Regina, Lumsden and Saskatoon. Many of O’Brien’s publications are available on loan from the SACL Resource Centre.

Co-decision precedent allows step back from total guardianship

Saskatchewan’s past adult guardianship legislation was more often than not a restrictive “all or nothing, black or white” tool that stripped people with disabilities of their potential to make any choices and decisions about their own lives. Since the Adult Guardianship Act was changed in 2001 to include provision for “co-decision-making,” there is more likelihood that people with disabilities can retain some of their autonomy while enjoying supports to help with issues perhaps too complex to handle alone. Cathy Knox, a barrister with Halyk Knox, was recently involved with SACL in a precedent-setting case that established co-decision making as a desirable and legitimate alternative to complete guardianship.
“The old legislation was restrictive almost to a point of being punitive,” says Knox. “It was based on the overriding presumption that we need to protect this individual from himself and those around him who are going to exploit him.”

The SACL has been involved as an intervenor in cases where it was felt complete guardianship was not necessary or appropriate. In some, Knox said it was important that the parent or other individual applying for guardianship understand that when SACL, as an advocate, learns of these applications, it has an obligation to see if such complete removal of rights is in any way warranted. Usually, an alternative can be found. In rare cases, guardianship is appropriate.

“Sometimes we deal with families who feel quite offended that we would question what they’re doing and sometimes those fears are stoked by others, sometimes lawyers and courts, who share the belief that people with disabilities are incapable of making appropriate decisions about their lives,” says Knox. “We have to talk our way through those situations and quite often, it’s a matter of lawyers and families getting a better understanding of the alternatives. It’s still a novelty for a parent who considers their adult son or daughter to be their child to realize there’s an outside agency who has a legitimate right to ask questions. They are not doing it as an enemy, but as someone with an interest in what is happening to that adult.”
To avoid confrontations, a way to familiarize parents of people with intellectual disabilities about the role SACL can play is important. The fact that the Association is not automatically adverse to the position of the parents can take some discussion to appreciate. The SACL is there to support, educate and explain alternatives to the traditional guardianship. There must be a recognition that no matter how good the intentions of one parent, for example, who has nothing but the best in mind for her child, there are also parents out there who may have other motivations. The SACL needs to be in a position to make sure the adult son or daughter is supported properly.

“A perfect example of this is the case where we had a precedent-setting co-decision-making order put in place because a young woman with a disability was caught between two warring parents who had never gotten past the angst and anger of their divorce,” explains Knox. “This woman was literally pulled back and forth between these parents. The only piece they had left to fight over was the daughter and neither of them would have been a suitable, reasonable guardian because it would mean exclusion of the other parent. There was no question that each parent loved the daughter, but she was caught in the middle. And it was clear she had her own opinions about the situation.”

Had there been more information available about alternatives to guardianship, perhaps this case would have never gone to court, says Knox. A family member ultimately came forward to accept responsibility as a co-decision maker and the outcome has been positive. But a better understanding of the alternatives to complete guardianship can save a lot of unnecessary anxiety and court time and cost.
Since the amendments were made, there are now specific principles in place that guide the interpretation and application of the Adult Guardianship and Co-Decision-Making Act:

  • Adults are entitled to have their best interests given paramount consideration;
  • Adults are entitled to be presumed to have capacity, unless the contrary is demonstrated;
  • Adults are entitled to choose the manner in which they live and to accept or refuse support, assistance or protection, as long as they do not harm themselves or others and have the capacity to make decisions about those matters;
  • Adults are entitled to receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection, when they are unable to care for themselves or their estates;
  • Adults are entitled to be informed about and, to the best of their ability, participate in, decisions affecting them.

“The old Act really was an all or nothing proposition,” says Knox. “You were either incompetent and needed guardianship or you didn’t. Now there is a measure that allows respect for the individual and allows for supported decision-making. That interim step of co-decision-making is very important. There are very few individuals who don’t have some positive perception of what’s appropriate, necessary and right for them and there’s a psychological advantage of being involved in and consulted about your life.”
The conflict in co-decision-making comes into play when someone wants to do “something that’s really wacky,” notes Knox. “But this gives someone named as a co-decision-maker the ability to talk it through, to discuss consequences and so on. There’s a bit of an advisory role and that’s an important piece in respecting a person’s dignity.”

An important aspect of the revamped legislation is that it is not only in place for people with intellectual disabilities. It has wider reaching application to others.

“This is Legislation for your mother when she’s in the early stages of senility, when Alzheimer’s is setting in. It’s for your father when he’s just getting to a stage where it’s really hard for him to handle all of his affairs. Co-decision-making allows this person to maintain a degree of dignity and self-respect, but allows for some help in making decisions to avoid the bad outcomes of poorly thought-out decisions,” says Knox.
Parents of people with intellectual disabilities who may have opted for total guardianship before can now make an application for the co-decision-making order. This order contemplates an involvement in making decisions as an advisor with the legal authority to give support. Then, if good advice is being rejected and there’s a good chance of adverse outcomes, there is some legal authority to put the brakes on.
“I think the most important element of all this is that it allows a step back from that presumption of incompetence. It allows for the understanding that the person may need some support, but is very capable of making many decisions about his own life. The nice thing about the legislation is that it recognizes the role of advocacy organizations such as SACL and says there is to be consultation. Notice from the Public Guardian’s office used to be given only when there was a Property Guardian application. Now, that that has been extended so that notice is also given when there is an application for a Personal Guardian as well. The SACL is one of a very few organizations named in the Act to receive notices.

“The Public Guardian is a very fair-minded individual,” says Knox, “and he suggested that amendment be made once he realized there was a shortfall in the legislation. The government very quickly agreed that there was a deficiency in the system. This particular case gave us a real good look at how the new legislation can work,” explained Knox. “In the face of some acrimonious and bitter battles, there is an ability there to find a solution that’s in the best interests of the individual that’s still short of taking away their decision-making power. The young woman at the centre of this case is a person who responds very positively to being treated with respect. Her life is full of experiences now that she wants. Now she’s totally uninvolved in the escapades of the divorce with the help of her co-decision-maker and it’s so much healthier for her.”

Knox believes these legal changes are reflective of the sociological evolution with respect to people with disabilities. Society has moved from the model of presumption of total incompetence and dependency to the idea that support for an individual’s capabilities and an appreciation for her presence in the community is desirable.

“My sister is 42 and when it was finally determined she had Down syndrome, the doctor was telling my parents that she was blind, she would never walk or talk; they should put her in an institution and forget about her,” says Knox. “We’ve come a long way from that attitude, I would hope, to realize that people can be better supported in community-based services as fellow citizens with their dignity and abilities respected.”

(Watch for the Fall issue of the SACL’s Dialect magazine for an interview with Ron Kruzeniski, Saskatchewan Public Guardian, who shares his views on co-decision making.)



Copyright © 2002 Saskatchewan Association for Community Living
All Rights Reserved

Site design team: Kelli Boklaschuk, Kevin Caisse, Ruth Cey, Thelma Cey, Lalita Martfeld, Karin Melberg Schwier, Richard Schwier