Determining what is best for a child, ensuring their happiness and protecting them when warranted can become a quagmire of issues when the child has a disability and even more complex when that “child” becomes an adult. In Part One of this series, I discussed those issues in the context of the guardianship of property of minor children. In Part Two, I outlined the legal rights of adult "children" with disabilities. In this part of this series, I will discuss key elements of the Substitute Decisions Act, 1992 (“SDA”) that relate to adult children with disabilities.
This blog series is written for people with disabilities, parents/family members of disabled children, family law lawyers, estate and capacity lawyers, and people acting as substitute decision makers under powers of attorney or guardianship judgments, to highlight some of the many issues that should be considered when the property and personal rights of a minor or adult disabled child are involved.
The Substitute Decisions Act
As discussed in the previous part of this series, once a person reaches the age of majority, they are presumed capable of making decisions relating to their property and personal care. This presumption, and the corresponding rights, are at times undermined or disregarded in the context of a relationship breakdown of the child’s parents and also at times where the parents remain together but are dealing with the challenging “cross-over period” between the child’s minority into adulthood. The following are some of the key elements of the SDA that should not be undermined or disregarded in cases involving an adult child with disabilities.
1) Capacity is time, task, and situation specific
One of the goals of the SDA is to ensure the autonomy of individuals to the greatest extent possible. I think it is fair to say that many parents also have this goal at heart for their adult children with disabilities. In order to achieve this goal, a fundamental tenet of capacity law is that mental capacity is time, task, and situation specific.
This means that the determination of whether a person is capable of doing a certain task or making a certain decision must be considered in light of the specific time (time of day, time in the person’s life, time in the trajectory of the person’s recovery from an accident, time before or after taking certain medications, etc.), the specific type of task (managing property, versus making a specific personal care decision, versus granting a power of attorney for property, versus deciding what to eat for lunch, etc.), and the subject person’s situation at the relevant time period (the person has minimal expenses and fixed social assistance income versus a multi-million dollar settlement that must be managed properly to meet complex care needs; the person has complex and changing health care needs versus a simple and stable health care situation, etc.).
This means that capacity is not a static concept and an adult child with disabilities can be incapable at certain points in time and capable at others; or incapable of making decisions in certain areas and capable of making decisions in other areas. In fact, an adult child with disabilities can be mentally capable of making all of their decisions at a given time in a given situation, and still be unable to withdraw from parental control for reasons unrelated to their decisional capacity. If they are capable of doing certain tasks, then the law should not take away their right to do those tasks.
2) Presumption of capacity
Section 2(1) of the SDA provides that a person who is eighteen years of age or more is presumed to be capable of entering into a contract; and section 2(2) provides that a person who is sixteen years of age or older is presumed capable of giving or refusing consent in connection with his or her own personal care.
This presumption should not be disregarded when a child crosses over from minority to adulthood, and should not be displaced by a determination that a person is a “child of a marriage” as defined in the Divorce Act (“DA”), because that definition captures a broad category of adult children with disabilities. The presumption of capacity should only be displaced by evidence of incapacity specific to the task or issue at hand.
For example, the presumption of capacity to enter a contract should not be displaced by evidence that a person is physically disabled and in a wheelchair and for those reasons, determined to be a child of the marriage; rather, the presumption of capacity to enter a contract should only be displaced by evidence that the person is mentally incapable of understanding the information necessary to enter into the specific contract or unable to appreciate the reasonably foreseeable consequences of entering into the contract.
3) Capacity to manage property
Section 6 of the SDA provides that:
A person is incapable of managing property if the person is not able to
understand the information that is relevant to making a decision in the
management of his or her property, or is not able to appreciate the reasonably
foreseeable consequences of a decision or lack of decision.
This is a two-pronged test – if a person cannot meet either aspect of the test, then they are incapable of managing property.
It is important for parents of adult children with disabilities to understand this test – a mere lack of access to the information relevant to making a decision about property is not the same thing as not being able to understand the relevant information; and making a foolish or unpopular decision is not the same thing as not being able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
It is also important to note that, if a person is incapable of managing property, then they may or may not need a guardian to manage their property for them. In fact, section 22(3) of the SDA provides that:
The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of managing property; and
(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.
This section is meant to further the goal of enhancing a person’s autonomy, not undermine it by circumventing the guardianship process if in fact a guardian, or the rights and protections afforded by the guardianship process for a person who is incapable of managing property, is required in a certain situation.
One example of a situation where a person may be incapable of managing property but not require a guardian of property is where the person is capable of granting a power of attorney for property. This is discussed in more detail below.
If a person is incapable of managing property and there is no less restrictive course of action to meet the person’s property decision making needs than the appointment of a guardian of property, then an application for guardianship under the SDA may need to be brought. The aspects of a guardianship application process that are relevant to this blog topic are discussed in more detail below.
4) Capacity to grant a continuing power of attorney for property
Sections 8 of the SDA provides that:
8 (1) A person is capable of giving a continuing power of attorney if he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30, s. 8 (1).
And section 9 of the SDA provides that:
9 (1) A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property.
As can be seen above, the test for capacity to grant a power of attorney for property is a different analysis than the test for capacity to manage property. Therefore, one can imagine the different scenarios where a person could be incapable of managing their property but capable of granting a power of attorney to someone else to manage their property for them.
This distinction matters greatly. If one of the goals of parents and the SDA alike is to foster the independence of adult disabled children and ensure their autonomy whenever possible while protecting and supporting them in relation to their specific vulnerabilities, then a person who is incapable of managing property but capable of granting a power of attorney for property should be able to make a power of attorney for property appointing whoever they trust is the best and most suitable person for the job. That person may not be either of their parents. That person may be the adult disabled child’s grandparent, sibling, friend, or partner.
In my view, the issue of whether a parent should continue to pay support to an adult disabled child should not be conflated with or undermine the issue of a person’s right to grant a power of attorney for property if they are capable of doing so. An adult disabled child may need and want to continue living with one parent, and the other parent, or both parents, may have an obligation to provide financial support to that child. But if the adult disabled child is capable of choosing who will manage those support payments for him or her, that should be the decision of the adult child, not the parents or the court.
5) Capacity to make personal care decisions
Section 45 of the SDA provides that:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Again, it is important to note that this is a two-pronged test and failure to meet either aspect of the test results in a determination of incapacity.
For parents of disabled children who are negotiating decision-making responsibility terms that have elements dealing with personal care matters, like shelter and safety for example, it is important to consider that the disabled minor child may have the requisite mental capacity to make some or all of their own personal care decisions when they turn sixteen years old.
Further, in accordance with the above-described test, the adult child’s capacity to make their own personal care decisions must be analysed separately with respect to each of the six areas of personal care decision making. Therefore, it is possible that an adult disabled child can be capable of making some of their personal care decisions but not others. Parenting decision-making orders and agreements in the family law arena should take into account the possibility that the child, upon turning the age of sixteen, could be mentally capable of making some or all of the personal care decisions that the order or agreement pertains to, in which case, those decisions should be made by the child, not by either parent or the court.
It is also important to note that the disabled child over sixteen years of age may be capable of granting a power of attorney for personal care even if they are incapable of making their own specific personal care decisions.
If a person over the age of sixteen is incapable of making their own personal care decisions and incapable of granting a power of attorney, and if there are personal care decisions that need to be made by an authorized substitute decision maker, then an application for guardianship of the person may be brought under the SDA.
6) Capacity to grant a power of attorney for personal care
Section 47 of the SDA provides that:
47 (1) A person is capable of giving a power of attorney for personal care if the person,
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person.
47 (2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care.
Again, when contrasted with the test for capacity to make personal care decisions, and when analysed in a “time, task, and situation” specific manner, one can foresee that a disabled child over sixteen could be incapable of making their own personal care decisions, but capable of granting a power of attorney for personal care to a trusted person. And again, this person may not be the parents, or may be one parent and not the other parent, or may be a grandparent, sibling, friend or partner.
7) Right to counsel
The alleged incapable person in a guardianship application, and other proceedings under the SDA, has the right to be served with that application, retain counsel, and take a position with respect to the application.
The role of counsel for the alleged incapable person is an important and complex one: important because proceedings under the SDA can have significant repercussions for the alleged incapable person (such as the removal of their decision-making autonomy and appointment of a substitute decision maker), and complex because, at its core, the role of section 3 counsel is that of a lawyer who must obtain capable instructions from a person whose capacity is in question.
In some cases, where capable instructions regarding the litigation were not ascertainable, section 3 counsel has had a role to play in relaying the alleged incapable person’s wishes (as opposed to instructions) or ensuring the proper administration of justice in the proceedings. A full discussion of the role of section 3 counsel is beyond the scope of this blog but is important for family law lawyers and parents of disabled adult children to be aware of.
The right to counsel for adult children with disabilities should not be undermined simply because the individuals disputing the substitute decision making issues happen to be the adult child’s parents. Whether the issues regarding the adult child’s property and personal care decision making are being dealt with in the family law arena or under an SDA proceeding, that adult child’s right to counsel is a fundamental right that cannot be swept under the carpet or replaced by another party claiming they are acting in the adult child’s best interest and that therefore the child should not need their own lawyer.
Lastly, where the adult child is not capable of instructing counsel, or even expressing wishes as is sometimes relayed through section 3 counsel, the adult disabled child may need a litigation guardian to be appointed for them. This issue should be canvassed with the court and again, it should not be assumed that the existing parties to the litigation can adequately, appropriately, and without conflict of interest, speak on behalf of the adult child.
8) Court ordered capacity assessments and the right to refuse to be assessed
Given all of the above, it is incontrovertible that the capacity of an adult disabled child must be considered before the parents of that child proceed to enter into agreements or seek court orders regarding that child’s property and personal care issues. To the extent that the adult disabled child is capable of making their own decisions, performing any tasks for themselves, instructing their own counsel, and taking a position regarding disputed issues that impact them, they should be afforded the opportunity to do so.
But what if, as in many cases, the adult child’s mental capacity is in a grey zone and it is unclear what their capacity level is with respect to various tasks? And what if that adult child refuses to undergo a capacity assessment in order to obtain information to guide this analysis? With respect to capacity assessments, a person has the right to refuse to undergo an assessment. The parties to SDA litigation can request a court order compelling that person to undergo a capacity assessment, but these orders are not granted lightly by the court.
Capacity litigation is legally complex and challenging for all of the parties involved given the need for balancing enhancing autonomy with protecting vulnerable people. Despite these challenges, we cannot underestimate the importance of ensuring that the adult disabled child’s capacity (and incapacity) is properly addressed.
In Part Four of this series I will discuss guardianship applications for adult children with disabilities.