Long-Term Care Law Newsletter: Spring, 2018

The Adult Capacity and Decision-Making Act: Are there Implications for Long-Term Care Facilities?

The Nova Scotia Supreme Court (the “Court”) struck down the Incompetent Persons Act (“former Act”) in June 2016 in Webb v Webb, 2016 NSSC 180. The former Act gave guardians broad control over all aspects of an individual’s decision making. This control covered a myriad of aspects of a persons’ life, ranging from their financial affairs to decisions regarding the individual’s personal relationships. Guardians had this broad control even if the individual only needed help in one area, such as their finances. Few people were surprised that the former Act did not pass muster when challenged in Court. The Court struck down the former Act due to its all-or-nothing approach to capacity and the Court gave the province one year to develop new legislation.

The Nova Scotia Department of Justice developed the new legislation following consultations with interest groups including the Elder Law and Wills Section of the Canadian Bar Association (Nova Scotia). The Adult Capacity and Decision-Making Act (“new Act”), came into effect on December 28, 2017. The new Act recognizes an individual’s right to make their own decisions, when possible, and provides alternative avenues for others to represent them when individual decision making is not possible. The new Act recognizes that an adult can have capacity in some areas but not in others.

The following list highlights the fundamental principals of the new Act including that every adult:

  • has capacity and can make their own decisions, unless it is shown that they cannot;
  • is not incapable of making a decision merely because their decision is one that another adult would consider risky or unwise;
  • can communicate by any means available to them, and the manner in which they communicate is not a consideration in determining whether or not they have capacity; and
  • should not be subject to interference in all aspects of their life just because they do not have capacity to make a decision, meaning that their representative should respect their independence and only interfere when necessary.

The new Act creates practical implications for long-term care facilities because directors of long-term care homes may face additional administrative obligations.

Under the former Act, the decision of whether or not guardianship should be granted was a fairly simple question. However, section 7 (2) (a)-(h) of the new Act enumerates several factors for the Court to consider when determining whether or not to grant a representation order (“Order”). This is no longer a yes or no question and Courts must engage in a nuanced analysis which will result in a greater lapse of time between the initial filing and the Order. Further, Orders will be more

complex than under the former Act and will require directors to read each Order carefully to ensure compliance with its particulars. In short, there is no longer a one size fits all approach.

Section 59 of the new Act offers an avenue to have an Order continued, rescinded or varied which is different than the former Act. This means that the directors of long term care homes may receive various Orders and therefore should ensure the currency of each Order.

It is difficult to anticipate the variety of ways that the new Act will affect long term care facilities at this point in time because the Court has only considered the new Act in one case. However, it is imperative that the directors of long term care homes carefully review each Order to determine when the adult in their care has capacity and is free to make their own decisions and when they do not.