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Bill 24 - Adult Guardianship and Trusteeship Act

November 6, 2008 - Third Reading

Ms Blakeman: Thank you very much, Mr. Speaker. I’m grateful for the opportunity to speak on Bill 24 in third reading. As I said when I spoke previously, this is such an important bill to many of my constituents but also to that wider community of people who have battled with capacity issues in their life or will face questions about their capacity to make decisions about their life sometime in the future. I’ve heard the biggest number of complaints from constituents who have been deemed to have diminished capacity and have been named as a dependent adult under the old legislation and then circumstances change. And they do change, Mr. Speaker. I’ve become somewhat of an expert about strokes and recovery from strokes, and I am surprised to watch how people do recover from strokes. You tend to think: “Well, that’s it. They’re just in that state where they were when the stroke happened, and that’s how they will stay.” They don’t. The body heals itself. You do get better. So I’m not surprised when people approach me and say: “I had a stroke. I was deemed to be a dependent adult, but I have gotten better, and I want to be able to make choices about my life again.”

It is currently a huge, uphill battle, aside from the fact that you essentially have to have the wherewithal somehow, seeing as you have no ability to do this, to hire a lawyer to go to court to fight for you, often against an appointed guardian who is a family member, which makes it all the much more difficult to now fight publicly inside of your own family. I mean, for some people things could not be worse. But the tests for determining restored capacity were very high. They were very onerous, and it was really difficult to try and get back an individual’s decision-making ability.

The second thing that I’ve really experienced through my constituents is that you often have friendship bonds that are much stronger than family bonds and how frustrated people get when they are trying to help a friend who’s been their friend for 45 years, who’s been their neighbour for 25 years. They know this person. They talk to them every single day for decades in some examples. Frankly, that person’s relationship with their family is nowhere near as strong, and they talk to them once a year.

It’s very frustrating when you have individuals who are not family members, who are not named in any kind of guardianship order and are not what society would generally go to in that, sort of, ranking of next of kin, yet they are very close to the person. They can see that something is wrong. They are talking to the individual in the hospital, and the individual is telling them: this is not right. And they can’t do anything to help their friend because the friend is under a guardianship order. They can’t change how they’re being treated in the hospital, who their doctor is, what kind of food they’re being fed, what they’re wearing, who’s allowed to come and visit them. They have no way to change that. That is really frustrating for people as well as being demeaning, and it just breaks people’s hearts, to be honest with you.

What I wanted to see were two things: one, that the tests for someone to prove restored capacity were more accessible than they had been. I also wanted to see that there was an avenue for others who were not in that ranking of next of kin or that sort of automatic list that you go through in your head around guardianship, that these others would be able to get involved or share some responsibility or have some legal relationship made available to them. I think we’ve seen that. We’ve seen it with the differences in the tests to work your way back out of this system, and I think we’ve also seen it with the new designation of co decision-maker. That person can be anyone, and it’s clear that it could be anyone. It could be that neighbour of 30 years. It could be that friend of 45 years. It doesn’t automatically default to that, sort of, next-of-kin priority listing.

I just got an e-mail this morning from someone who is very irritated with me because I hadn’t spoken against this bill. To be honest, I’m a little unclear about why they’re still so unhappy about it because I think that a number of the things that we were seeking have in fact been captured in this bill.

I appreciate very much section 2, which is the principles. The principles are actually right in the front of the bill. The first thing you get in a bill is always the definitions. That’s the first thing. You’ve got to know what you’re talking about, so that’s where the definitions always are, first thing. The second thing in this bill are the principles. The sponsoring member has gone over the principles that everything else is based on. But the fact that you put it right up front in the bill shapes and colours everything else in the bill, and it should, which is to say, you know, that number one is that an adult is presumed to have the capacity until the contrary is determined. We start out by saying that we believe that you are able to make these decisions about your life, and it diminishes from there. So they continue to make as many decisions as possible, but maybe they can’t make financial decisions anymore. The list is protective. The capacity is expected and respected in what we’re seeing in this bill, and I think that’s a great way to go at it.

The bill is not perfect. It has been a huge rewrite. Mistakes will have been made, no doubt. I would even argue that in some areas we should have pushed a little harder for more protections and in some cases for more freedoms. It’s hard to get these bills right, especially with such a gigantic rewrite. But my constituents have told me what was important to them, which was primarily those two things: the ability to restore their capacity and the associate decision making and, secondly, to have a friend or a long-time person in your life be able to have an official role and even be able to make inquiries.

The way it was before, it was just a lockdown. I mean, it reminded me of the Victorian times, where somebody was put in an institution and, you know, the doors closed. Clang. That was it. You never got any information about what happened to the person. You didn’t know if they were alive or dead, what had happened to them – nothing – because you couldn’t break through the barriers of that institution. What we had before was essentially like that. It was almost impossible to get information about what was happening to that individual and the choices that were being made around their life or even to talk to the people that were in the decision-making position.

I certainly think that this bill is a big improvement on what we had. Can we do some things better? Yep, and I bet you that I’ll be telling you soon what they should be, but for now I am certainly willing to support the bill in the state that it’s in. I think it’s a big step forward, and it certainly achieved what my constituents were looking for.

My constituents, by the way, would like me to thank the minister and the department on their behalf for the opportunity to give input during the review process and the building of this change in legislation. I did circulate the information to a number of my seniors’ residences and activity centres that the review was taking place and gave them the information about how to offer their input. I think they very much valued that opportunity to do that. Having put all of that on the record, I’m very happy to support Bill 24 in third reading, and I will take my seat. Thank you.