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Bill 24 - Adult Guardianship and Trusteeship Act

October 28, 2008 - Second Reading

Ms Blakeman: Thank you very much, Mr. Speaker. I’m very pleased to be able to join in second reading, which is essentially the reading on the principle of a bill, for Bill 24, the Adult Guardianship and Trusteeship Act. Certainly for me and my family and for many, many of my constituents this may well be the most important bill before this Assembly this sitting, and it’s in heavy competition with quite a number of other bills. This bill affects, well, not a large segment of our population but certainly a vulnerable section of our population. What we’re seeing in this bill is a result of consultation, I hope. I’m not exactly aware of how this was developed, but I can tell you that a lot of constituents have talked to me about the issues that appear in this bill.

In particular, what I’m hearing is from constituents who wanted to challenge the orders that they were living under. I can also talk from personal experience of myself and my friends who have aging parents and are concerned for them, that they be treated with dignity, that they not be subject to abuse or coercion. Even the security that I get from knowing that there are very clear rules and expectations in place about my legal responsibilities to my aging parents: if I am in a role as a guardian or a supporter or a power of attorney, those are very clearly laid out, and that protects me because it tells me what I need to be doing and what mark I need to come up to, what bar I need to achieve. I think that’s very helpful.

Mr. Speaker, the authorities that are considered in this act are pretty personal. I’m just going to go through a list that appears to give you a sense of how intimately this affects people’s lives. When we talk about a guardianship order – but this would also come into effect in some of the other relationships that are being contemplated in this act – it essentially is around the decision for an adult’s health care: where and with whom and under what conditions the adult is to live either permanently or temporarily. Where they actually get to live is part of what is being considered here and with whom the adult may associate, so who’s around them, who they’re allowed to speak to or go on field trips with is part of what gets pulled into the mix here of the controls that are placed on people’s lives. The adult’s participation in social activities or in educational or vocational or any other kind of training, employment, any legal proceedings that do not relate primarily to the financial interests of the individual, and any other personal matters as the court considers necessary. This can go right down to the clothing that somebody wears or how they go about getting that clothing. The controls and limitations and/or powers that are under this act are really important to people’s lives.

The financial aspect is mostly contemplated as a trustee. A trustee has the control over the finances of an individual. A guardian has control over what are called personal aspects, and I’ve just gone through a list for you of some of the things that that covers. I think what’s most important to me is that if people are to live with meaning in their lives – for many people who have had a debilitating illness or injury, their lives become quite small or quite narrow, if I could describe them that way. It’s sometimes hard day by day by day, day after day after day to find meaning in their lives. I think connected to that is the ability to make decisions over some aspects of their lives.

We had a rather draconian approach before. You were either under full guardianship or you weren’t. What we’re allowing for here is a sort of graduation of choices that are available to people based on their mental capacity and some choice in their life about how they want support offered to them. A major deciding factor in this is capacity. Of course, just looking at the definitions that are offered in the bill, the capacity is in respect to the making of a decision about a matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of

(i) a decision, and
(ii) a failure to make a decision.

I think that as much as possible what I seek is the widest possible latitude in decision-making over one’s life. Sometimes that latitude might be pretty small. It might be pretty narrow. It might be ability to say, “No, I don’t want pudding; I’d rather have ice cream,” which seems like a trivial thing to say, but I spend a lot of time in long term care facilities, and to some people that is as big as their world is, and that’s the kind of decision they want to make. I think we need to support that decision in whatever form it is for them.

As I have been reviewing this act – I’ll be honest with you, Mr. Speaker; I haven’t been able to do as thorough a job as I would like to do or as I usually do. I mean, these bills are hundreds of pages long and are contemplating a lot. I have not been able to work my way through cross-referencing everything on this, but I’ll try and get up to speed by the time we get into committee on it. This was one of the bills that was before a policy field committee. In reviewing the report from the policy field committee, it’s possible that this is a policy field committee that actually worked, but I’d like to talk to someone that was on it because I had experience of three other ones, and I can tell you that they didn’t work for me at all. [interjection] Oh, yes. Someone is heckling me from across the way, which is a pretty typical response from this government.

Some of the things that I wanted to mention are the principles. I like this bill. One of the things that first caught my eye was looking at the principles that the bill is built on, and I think those are quite admirable because they calm a lot of the fears that a family member or an associate would have about how these controls and limitations on somebody’s life would be put into place. Basically, that the act is to be viewed through this lens, through this filter of principles.

“An adult is presumed to have the capacity to make decisions until the contrary is determined.” Well, what a positive thing to say: we assume you have capacity until it’s absolutely proven that you don’t. Inside of that are differing levels of capacity.

An individual “is entitled to communicate by any means” by which they can, and even if they don’t communicate well, that shouldn’t count against them when a decision is made. They should still have the ability to make that decision. “The least restrictive and least intrusive form of assisted or substitute decision-making” should be brought into play with an individual. That’s very important. The other time you see that concept in play is with health information, and I’m wondering if that isn’t where they got it from. But it’s a really good principle to work from.

“In determining whether a decision is in an adult’s best interests, consideration must be given to” – must be given to; not shall, not may, but must be given to – “any wishes known to have been expressed by the adult” while they still had capacity or “any values and beliefs known to have been held by the adult” while they still had capacity.

They’ve been very careful to lay some stuff out here and say: please consider everything else in the bill through those principles. I hope that we’ve all reviewed this bill looking at it through that lens.

What we have here is a series of different, as I say, limitations and controls. But, really, it’s about who is assisting the individual. It ranges, just looking at the different definitions here, from a co decision-maker, a guardian, the public guardian, an interested person, the Public Trustee, a supporter, or a trustee. Those are not in order, by the way, Mr. Speaker, but it does start to give you a feel for what’s contemplated here, that we have degrees that are going to be offered to people who are losing capacity or who have lost capacity.

I really like the definition that’s in there of supporter because it’s setting out that the individual can choose between one and three supporters to help them make decisions. Therefore, it becomes more consensus-based or even a committee, and I don’t mean to make fun of things by saying that, but it allows a group a people to work on something together. I really like that approach in this bill.

Just in wrapping up, I know that the biggest issue that constituents have raised with me is the ability to facilitate a reassessment of capacity. I think a lot of people would say: “Well, how is that possible? You know, once you lose your mental faculties, they’re gone.” Well, no, not true. If you have a stroke, many times you will recover quite a bit of your ability and your mental capacity. Following a stroke, you do heal from it. So someone who may have been placed under a fairly restrictive guardianship may well be able to work their way out of that. The constituents that approached me – and I’m thinking particularly of The Churchill in my constituency, where several people contacted me – wanted a clearer and fairer and less onerous process for them to be able to work their way back out of very restrictive guardianship and dependent adult orders.

The other thing that people are very interested in seeing is allowing others an avenue to get involved or complain about or alert people if they see or suspect that someone who is an appointed guardian or is in one of those official capacities is abusing an adult or not caring for them. I get friends, you know, best friends or neighbours that have lived beside somebody for 50 years, and they call me up, and they say: “We know something’s wrong here. We know that this person’s not being looked after, but their adult children who live in a different place won’t let us get into the hospital and see them or help them.” They’re quite desperate because they know this individual very well, yet there was nothing in the law that allowed them to be able to find a voice in this situation.

I’m hoping that what this legislation is doing is offering that possibility, that legal avenue, for individuals to intervene or at least to bring it to the attention of authorities that perhaps the person who is in a legal relationship with them now is not operating in their best interests, and others have noticed that and want to have a venue. Short of going to civil court on this one, there really wasn’t any other way, and most individuals don’t have the resources to go through civil court on this. As I said, you know, the neighbour who had been a neighbour of an individual for, I think, 40 years and knew something was very wrong in the way they were being cared for and the choices that were being made, but they had no way of talking to the hospital authorities or anybody else about this individual because they didn’t have that legal definition. This may well give the legal definition that would have helped the individual situation that I’m describing there, but they’re by no means the only one.

I am very interested in how this bill progresses, and I’ll be listening very carefully. Thank you very much, Mr. Speaker.

The Speaker: Hon. members, Standing Order 29(2)(a) is available. The hon. Member for Calgary Varsity under the standing order provision.

Mr. Chase: Thank you very much. To the hon. Member for Edmonton-Centre: do you see this potential of a living will or a recommended treatment offering support for adults who are needing that extra governance or guardianship?

Ms Blakeman: I think when you’re saying living will, you mean a personal directive, which is now the sort of chosen form of legal language when we talk about this. It’s contemplated in this legislation, and it’s important that that be taken into consideration with a number of other things that we’re considering. When I talked about, you know, how this could this affect people’s lives when we talked about health care, well, obviously, a personal directive is mostly interested and directs itself towards that, and it’s important.

I was surprised as I have dealt with some of the frail, elderly people – I don’t know why I would have been surprised – that they had thought about what kind of medical intervention they wanted in their life, and they had some pretty firm opinions on it. It was not what I expected because I expected, you know: prolong things at any cost. What I was being told was: “No. Under this circumstance I want exactly this, and under that circumstance I will have a choice of this or this.” It was very interesting, and it was a good learning process for me to see how clearly people had thought this out.

In a lot of the long-term care facilities the facility manager will require that you fill out a personal directive because it gives them instructions on how to care for somebody. They require it. They’ve got it on record, and if the person has a seizure, they will know that the person has said, “I’m willing to be revived; you can use oxygen on me, but don’t use a defibrillator,” and that kind of specificity of instructions.

So the living will or personal directive is a very important component and links intricately into what we are contemplating in the personal relationships that are being established in Bill 24.