Nova Scotia has introduced a new act that will recognize the autonomy and independence of adults who have diminished capacity while protecting those who cannot make certain decisions for themselves.
The proposed Adult Capacity and Decision-making Act introduced today, Oct. 2, replaces the outdated Incompetent Persons Act. The previous act was struck down by the Supreme Court of Nova Scotia in June 2016 because of its all-or-nothing approach to capacity.
Parts of the former Incompetent Persons Act were ruled unconstitutional because they gave complete control to a guardian for all aspects of a person’s decision-making, even if the person had the capacity to make some decisions for themselves.
The Adult Capacity and Decision-making Act recognizes the individual’s right to live their own life and make their own decisions. Where that isn’t possible because of an impairment in their capacity, it offers an avenue for someone to represent them and make necessary decisions on their behalf.
“We want to respect the court’s ruling and are using this as an opportunity to update the legislation,” said Mark Furey, Attorney General and Minister of Justice. “This legislation addresses concerns raised by the courts. It will better serve adults with diminished capacity and their families when important decisions need to be made.”
The bill ensures protection of the adult’s well-being and financial interests. It aligns with Canada’s interpretation of the United Nations Convention on the Rights of Persons with Disabilities.
Key provisions of the proposed legislation are:
— every adult has the capacity to make decisions, unless the contrary is shown
— decisions made for the adult will reflect the least intrusive, least restrictive course of action possible
— representatives have clearly defined duties, including encouraging the adult to take part in decisions as far as reasonable, and considering the adult’s prior instructions, wishes, values and beliefs when making decisions
— representation orders will be reviewed within a timeline specified by the court
— courts will protect the adult’s autonomy by limiting a representative’s decision-making authority to those areas where the adult does not have capacity to make decisions for themselves
— health professionals who are authorized to carry out capacity assessments include physicians, psychologists, nurses, occupational therapists and social workers
— a complaints process
— penalties if a representative acts in bad faith and causes harm.
The legislation must take effect on Dec. 28, 2017 as ordered by the courts.