By Brett Book ^[1]

In the 2^nd Session of the 60^th Legislature of New Brunswick, the Supported Decision-Making and Representation Act^[2] was introduced by the Honourable Hugh J. Fleming, K.C. Bill 20 as it is known in the Legislature, was first read on November 18, 2022 and received Royal Assent on December 16, 2022. The Act will come into force and effect on a day to be fixed by proclamation.

The ­Supported Decision-Making and Representation Act (the “Act”) will provide adults living with a disability, the ability to make decisions about their lives with the support they require in order to do so. The Act replaces New Brunswick’s Infirm Persons Act^[3] and illustrates a significant shift in New Brunswick’s adult decision-making laws. Robin Acton, President of Inclusion Canada, said, “This is a monumental moment for persons with disabilities and their families in New Brunswick and across Canada.”^[4]

This article will examine the Act in the overview and its implications for adults with disabilities, their families, and the professionals that endeavour to help them.

INTRODUCTION

The Act features a three-level framework which provides legal recognition and outlines the rights and responsibilities of:

1. Decision-making assistants for assisted persons;
2. Decision-making supporters for supported persons; and
3. Representatives for represented

The Act also addresses considerations of capacity, capacity assessments, and revises the language characterizing incapacity in New Brunswick’s Devolution of Estates Act.^[5]

Since the Act is clearly rooted in human rights, dignity, and the autonomy of adults with disabilities, this is arguably a step towards reflecting the fortitude of implementation of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) and the promise of legal capacity and equal recognition before the law. New Brunswick now becomes one of the few jurisdictions in the world to provide a court-recognized supported decision-making alternative to guardianship and substitute decision-making.

PART I – DEFINITIONS, INTERPRETATIONS AND PURPOSE

The Act defines several commonly used terms including “common-law partner”,^[6] “court”, “financial matter”, “health care”,^[7] “personal care matter”, “Public Trustee”, “supported decision-making process”, and “trust company”.

Perhaps most importantly, the Act provides an interpretation of what is meant by references to “assistance”, explaining that in relation to the decision-making process, assistance means “any measure that helps a person have the capacity to make a decision, including explanations of relevant information and reasonably foreseeable consequences of the available options.”^[8]

Capacity

The Act not only defines capacity but outlines how assistance and support factors into the decision-making process. The Act provides that:

3(1) A person has the capacity to make a decision if the person is able to,

(a) understand the information that is relevant to the decision, and

(b) appreciate the reasonably foreseeable consequences of the decision.

3(2)   A person has the capacity to make a decision if the person is able to satisfy paragraphs (1) (a) and (b) with the assistance that is available.

3(3)   A person may have the capacity to make a decision even if the person,

(a) makes, or would make a decision that another person would consider risky or unwise,

(b) lacked the capacity to make a similar decision in the past,

(c) lacks the capacity to make other decisions, or

(d) requires assistance to communicate.

Purpose

The Act is designed in part, “to protect and promote the autonomy and dignity of persons who require support in relation to decision-making in accordance with the principle that persons should receive the support they need to make or to participate in the decisions about their lives to the greatest extent possible.”^[9]

The Act recognizes the right to legal capacity of adults with disabilities. The Act has regard to the principles outlined in the CRPD.

To recap, the CRPD has eight principles that signatory States Parties are expected to adhere to. These principles are:

• Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
• Non-discrimination;
• Full and effective participation and inclusion in society;
• Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
• Equality of opportunity;
• Accessibility;
• Equality between men and women; and
• Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.^[10]

PART II – DECISION-MAKING ‘ASSISTANTS’

An ‘assisted’ person is defined in the Act as the person who has made the decision-making assistance authorization.

In order for a person to create a decision-making assistance authorization, the Act holds that they must be 19 years of age or older. Anyone with the capacity to make an authorization can make one.^[11]

Pursuant to the Act, a person has the capacity to make an authorization if they have the capacity to make the decisions involved, including:

1. Whom to appoint as a decision-making assistant;
2. The matters in relation to which a decision-making assistant may exercise powers; and
3. The powers that a decision-making assistant may exercise.^[12]

The decision-making authorization can be made for all or some personal care matters of an assisted person and all or some financial matters of an assisted person.^[13]

An authorization provides the person appointed as assistant with the power to obtain from any person any information relevant to a decision of the assisted person or to assist them in obtaining that information. An authorization will also provide the assistant with the power to communicate a decision of the assisted person to other persons or to assist with the communication of a decision.^[14] However, the decision-maker does not have to exercise their power regarding a decision if they are of the opinion that the assisted person does not have the capacity to make the decision, even with assistance.^[15] The assistant may also decline to communicate or assist the assisted person in communicating a decision, if the decision would cause serious harm to the assisted person.^[16] The assistant may provide assistance but shall not make a decision on behalf of the assisted person and shall not delegate any of their powers.

An assistant’s duties provide that they shall “act honestly and in good faith and shall exercise reasonable care.”^[17] An Assistant shall not act for their own benefit or for benefit of a person other than the assisted person.^[18]

To be appointed as an assistant, a person must be 19 years of age or older. Ineligible parties to appointment include the Public Trustee, any person who provides health care services or support services to the assisted person for compensation, or a member of a class of persons prescribed by regulation.^[19]

What Will an Authorization Look Like?

The form of a decision-making assistance authorization shall be in a form to be prescribed by regulation and shall:

1. Identify each person appointed and the person’s relationship to the assisted person;
2. Contain a signed statement by each person appointed as a decision-making assistant indicating consent to appointment;
3. Specify the matters in relation to which a decision-making assistant may exercise powers;
4. Specify the powers an assistant can exercise;
5. Contain a statement signed by a lawyer indicating the lawyer is a practicing member of the Law Society of New Brunswick, has reviewed the provisions of the decision-making authorization with the assisted person, was present when the decision-making authorization was signed and dated in accordance with subsection (7), and is of the opinion that the assisted person has the capacity to make the authorization; and
6. Contain a statement by the person signing on behalf of the assisted person, if applicable, indicating that the person signed and dated the authorization at the direction and in the presence of the assisted person.^[20]

The Act provides that the authorization may specify conditions or restrictions on the powers of the assistant, specify a date on which the authorization expires, and contain a statement indicating that any previous authorization is revoked.^[21] The authorization must also be signed and dated in the presence of a lawyer by the assisted person or a person on behalf if the assisted person is unable to sign and date the authorization and the person is 19 years or older and signs and dates in the presence of the assisted person.^[22] The appointed person cannot sign the authorization on behalf of the assisted person.^[23]

An authorization will remain in effect until:

1. The assisted person revokes the authorization by providing notice to each assistant;
2. The appointment of each assistant is terminated;
3. The date specified in the authorization as the date on which it expires;
4. The court makes an order terminating the authorization;
5. The court makes an order appointing a decision-making supporter or a representative for the assisted person, unless the court orders otherwise, or
6. The assisted person dies.^[24]

Multiple assistants

Where there are multiple persons appointed as assistants, the Act provides that they may exercise their powers separately or jointly.^[25] If an individual assistant is terminated, the remaining assistants may continue to act for the assisted person.^[26]

Court orders regarding authorizations

The Act allows the following persons to apply to the court for an order regarding an authorization:

• The assisted person;
• The decision-making assistant;
• The Public Trustee; and
• Any interested person 19 years of age or older.^[27]

The court can make any order it considers appropriate, including giving directions, and authorizing the assistant to exercise powers to matters referred to in subsection 10 (2).

PART III – DECISION-MAKING SUPPORTERS

The Act defines a supported person as “a person who is the subject of an application for a supported decision-making order or in relation to whom a supported decision-making order has been made”^[28]

A person must be 19 years of age or older to apply to the court to be appointed. The application must also be accompanied by:

1. An affidavit of the applicant;
2. An affidavit of any proposed decision-making supporter other than the applicant;
3. A Capacity Assessment made in accordance with Part 5;
4. In financial matters, a financial summary; and
5. Any other document prescribed by regulation or required by the court.^[29]

In determining suitability to be appointed as a supporter, the court shall consider:

1. The nature of the relationship between supported person and the proposed decision-making supporter, including whether the relationship is one characterized by trust;
2. The views of the supported person;
3. The ability and availability of the proposed decision-making supporter to exercise the powers and perform the duties of a decision-making supporter; and
4. Any other relevant factor.^[30]

The Supported decision-making process

In making decisions with a supported decision-making person through a supported decision-making process, a decision-making supporter shall:

1. Discuss the relevant information and the reasonably foreseeable consequences of the available options with the supported person in a manner the supported person is likely to best understand,
2. Assess the available options together with the supported persons wishes and preferences, including those expressed by the supported person and the time the options are discussed and those that are otherwise known to the supporter.^[31]

A decision-making supporter shall accept a decision made with a supported person through a supported decision-making process unless doing so would cause serious harm to the supported person, in which case the decision-making supporter may refuse:

1. To communicate or assist the supported person in communicating the decision, or
2. To do anything to give effect to the decision.^[32]

Property Subject of a Specific Gift-Orders

The Act holds that a person who is directly affected by the disposal of property by a decision-making supporter that is the subject of a specific gift in a supported person’s will may apply to the court for directions. On application, the court shall consider the intentions of the supported person and the circumstances in which the property was disposed of and may make any order it considers appropriate.^[33]

PART IV – REPRESENTATIVES

The Act defines a ‘represented’ person as “a person who is subject of an application for a representation order or in relation to whom a representation order has been made.”^[34]

Similar to an application for a decision-making supporter, the application for a representative must be companied by the following:

1. Affidavit of the applicant;
2. Affidavit of any proposed representative other than the applicant;
3. A Capacity Assessment report made in accordance with Part 5;
4. A financial summary, if the applicant seeks an order appointing a representative with powers in relation to financial matters;
5. Any other document prescribed by regulation; and
6. Any other document required by the court.^[35]

In relation to financial matters, the Act provides that a trust company is eligible to be appointed as a representative in relation to financial matters only.^[36] What’s more, while the Act provides that a person who provides health care services or support services to the represented person for compensation is ineligible to be appointed as a representative,^[37] the Act provides an exception for a spouse, common-law partner or relative of a represented person who provides health care services or support services to the represented person for compensation.^[38]

Duties of a Representative

The Act provides that a representative shall keep the representative’s property separate and apart from the property of the represented person unless expressly authorized to do so in the representation order.^[39]

What’s more, if a representative does not have sufficient knowledge of the represented person’s wishes and preferences to ensure that the decision is guided by them or if a decision guided by those wishes and preferences would result in serious harm to the represented person, the representative shall make the decision that the representative believes will best promote the represented person’s well-being.^[40]

PART V – CAPACITY ASSESSMENTS

In accordance with the Act, an ‘assessor’ is defined as:

1. A medical practitioner lawfully entitled to practice in the province;
2. A nurse practitioner lawfully entitled to practice in the province;
3. A psychologist lawfully entitled to practice in the province; or
4. A member of a class of persons prescribed by a regulation.^[41]

If a person refuses to undergo or continue with a capacity assessment, the assessor shall take no further steps in the assessment and shall notify the person who requested the assessment. Any capacity report shall be dated no earlier than six months before the application is filed with the court, unless the court orders otherwise.^[42]

Rights of a Person for Whom a Capacity Assessment is Sought or Conducted

The Act provides that a person is entitled to refuse or undergo or to continue with a capacity assessment but also that during the assessment, a person is entitled to:

1. Have a person of their choosing accompany them;
2. Have a device or an interpreter or other person to assist them to communicate; and
3. Ask the assessor questions or raise concerns with the assessor about the assessment.^[43]

The assessor can conduct an assessment without the person in respect of whom the assessment has been sought if:

1. The person refuses to undergo or to continue with the capacity assessment or cannot reasonably participate in the assessment, and
2. The assessor is satisfied the assessment can be completed accurately using the information available.

PART VI – GENERAL

The Act has a helpful provision which provides that authorizations made outside the province shall be deemed a valid decision-making authorization if it:

1. Gives a person comparable powers to the powers of a decision-making assistant, and,
2. Is valid according to the law of the place where it was made

The Act offers the same treatment for representative orders made outside the province.

PART VII – TRANSITIONAL PROVISIONS, CONSEQUENTIAL and CONDITIONAL AMENDMENTS, REPEAL and COMMENCEMENT

The Act provides that a person who was appointed as a committee of the estate under the Infirm Persons Act, chapter I-8 of the Revised Statutes, 1973, and held office immediately before the commencement of this section shall be deemed validly appointed as representative with powers in relation to a represented person’s financial matters under a representation order under the Act. The same treatment is provided to a committee for personal care.

Updating the Language Surrounding Incapacity

The Act updates the language in the Devolution of Estates Act,^[44] by amending subsection 10(2) of that Act by striking out “a lunatic” and “such lunatic” and substituting it with “a person who lacks the capacity to concur in the sale” and “person who lacks capacity”, respectively.^[45]

Section 12 of the Devolution of Estates Act is also amended by striking out “a lunatic with the approval of the committee of the lunatic, if any minor or lunatic” and substituting “a person for whom a representative has been appointed under the Supported Decision-Making and Representation Act, with the approval of the representative, if any minor or represented person.”^[46]

Concluding Thoughts

The Act was created with the critical input of community stakeholders such as Inclusion Canada. In fact, Tanya Whitney, President of Inclusion New Brunswick has recently shared that, “Progress like this doesn’t just happen overnight, and we are grateful for the collaboration that led to this historic day. Not only did we work closely with our government colleagues, but the bill also received unanimous support by all parties.”^[47]

Under the previous legislation in New Brunswick, adult’s living with a disability would have to be declared incompetent before someone could be appointed as a guardian to make decisions on their behalf.

This new legislation will permit adults to make decisions that impact their lives with assistance or support and without being declared incapable. The Supported Decision-Making and Representative Act will allow adults with an intellectual disability in New Brunswick to retain the presumption of capacity and make the decisions they need to, with the supports they require to do so.

It will be interesting to see if some of New Brunswick’s legislation is incorporated by other provincial governments as they consider creating their own supported decision-making legislation.

—

[1] With many thanks to Kathleen Cunningham for her valuable comments/assistance.

[2] SNB 2022, c 60.

[3] RSNB 1973, c I-8.

[4] Inclusion Canada, “New Brunswick Makes History with Supported Decision-Making and Representation Act” (2022) Accessed online: https://inclusioncanada.ca/2022/12/15/press-release-new-brunswick-makes-history-with-supported-decision-making-and-representation-act/

[5] RSNB 1973, c D-9.

[6] Defined as a person who cohabits in a conjugal relationship with another person if the persons are not married to each other.

[7] Defined as anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, including a course of treatment.

[8] SNB 2022, supra, note 1 at Part 1, s 2.

[9] Ibid, s 4.

[10] United Nations, “Convention on the Rights of Persons with Disabilities (CRPD) – Article 3 – General principles” Accessed online: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-3-general-principles.html.

[11] Ibid, s 6(1).

[12] Ibid, at s. 6(2).

[13] Ibid, at s. 6(3).

[14] Ibid, at s. 6(4).

[15] Ibid, at s. 10(3).

[16] Ibid, at s. 10(7).

[17] Ibid, at s. 12(1).

[18] Ibid, at s. 12(2).

[19] Ibid, at s. 9(1) & (2).

[20] Ibid, at s. 6(5).

[21] Ibid, at s. 6(6).

[22] Ibid, at s. 6(7).

[23] Ibid, at s. 6(8).

[24] Ibid, at s. 8.

[25] Ibid, at s. 7(1).

[26] Ibid, at s. 7(2).

[27] Ibid, at s. 17(1).

[28] Ibid, at s. 18.

[29] Ibid, at s. 19(2).

[30] Ibid, at s. 20(2).

[31] Ibid, at s. 27(1).

[32] Ibid, at s. 27(2).

[33] Ibid, at s. 34(1) & (2).

[34] Ibid, at s. 35.

[35] Ibid, at s. 36(2).

[36] Ibid, at s. 40(2).

[37] Ibid, at s. 40(3).

[38] Ibid, at s. 40(4)

[39] Ibid, at s. 43(3).

[40] Ibid, at s. 44(2).

[41] Ibid, at s. 52.

[42] Ibid, at s. 53(2) & (4)

[43] Ibid, at s. 54.

[44] Supra, note 4.

[45] Ibid, at s. 69(2).

[46] Ibid, at s. 69(3).

[47] Inclusion Canada, “PRESS RELEASE: “New Brunswick Makes History with Supported Decision-Making and Representation Act” December 16, 2022, accessed online: https://inclusioncanada.ca/2022/12/15/press-release-new-brunswick-makes-history-with-supported-decision-making-and-representation-act/.