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Thursday, March 28, 2019

Adult guardianship in Newfoundland undergoes a sea change

Recently the Court of Appeal in Newfoundland and Labrador came out with a decision that changes everything we were doing with guardianship of adults in this province. Newfoundland is the only province that doesn't have a statute that specifically authorizes a family member to step forward and ask the court to be made the guardian of an elderly person who needs help and protection because of dementia or other issues.

In the absence of a statute, we lawyers have been scrambling to come up with effective ways of getting the orders our clients need. There were basically no guidelines and no accountability. The process was less than ideal in a dozen ways.

In the case of A.A. (Re), 2019 NLCA 7, (which we are simply calling "the Ash case") the Court discussed whether judges of the Supreme Court have the authority to make such orders, given the lack of specific statute. The Court of Appeal confirmed that they do. That part was, to me at least, expected. I had done my research on this topic ages ago and was absolutely sure the court had the inherent jurisdiction to grant such orders, but I was glad to see I was right.

The case covered so much more than that, though. In my opinion, this is a most welcome and appropriate judgment, because it sets out the principles that a judge must follow when deciding whether to grant an order and what to put in the order. It gives some solid guidelines for everyone involved.

The four important principles that a judge must consider are:
1. Whether the need for protection and assistance in making fundamental life choices has been established.
2. Whether notice of the proposed guardianship application was given to the elderly person and to other family members and whether they had a chance to respond.
3. The proper scope of the order - in other words, the judge should include everything that is needed to address the situation but should not impose more help on the elderly person than is wanted or needed.
4. The appropriate choice of guardian.

All of this has really changed the game for us. There is a lot more work to be done by the lawyer at the front end in terms of gathering information and creating a detailed affidavit containing all of the relevant information. There is also a lot more work to be done by the proposed guardians in terms of giving notice, providing information, and getting information from medical and care-giving personnel.

It has also changed the game for seniors whose families might make these applications, and it's a change for the better. The courts will have a lot more information, and so will other family members. The judges will be more aware of the need to involve other family members or to get stronger medical evidence, or to restrict the power given to individuals over their parents. To me, this all means that the rights of seniors are better protected. I've never liked the idea that people should lose their autonomy just because it is more convenient for the rest of the family.

All in all, I congratulate our court on getting this one exactly right!

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