Example 8: Implementing Supported Decision Making Through “Representation Agreements” in Canada
Project Type: Advocacy
Nidus Personal Planning Resource Centre and Registry
Founded by citizens and community groups involved in the reform of British Columbia’s adult guardianship legislation, the Nidus Personal Planning Resource Centre is a non-profit, charitable organization operating in British Columbia, Canada. Nidus helps persons with disabilities engage in personal planning in the areas of health care, personal care, legal affairs and financial affairs. Their website includes fact sheets, videos, legal forms and exercises that help advance supported decision making through representation agreements, enduring powers of attorney, health care consent, advance directives, living wills, personal care, adult guardianship and the prevention of abuse.
Most states have a system by which a court can declare a person legally incompetent. Under these systems, many persons with mental disabilities lose their legal capacity to make decisions for themselves, sign contracts, vote, defend themselves in court or make their own health care decisions. Yet, Article 12 of the Convention on the Rights of Persons with Disabilities recognizes that persons with disabilities have the right to equal legal capacity. Therefore, it is necessary for State Parties to enact legislation or provide programs to provide assistance to persons with disabilities so that they may exercise this capacity.
A decision making approach according to which supporters, advocates or established systems may assist an individual with disability to make his or her own decision or express his or her will, provided the supporter, advocate or system is not in conflict of interest or in a position of power or undue influence over the individual. Supported decision making, as opposed to traditional substitute decision-making or guardianship, does not imply a transfer of decision making rights to third a party.
Convention on the Rights of Persons with Disabilities (CRPD)
Art. 12(2): States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
Art. 12(3): States Parties shall take appropriate measures to provide access by persons with disabilities to support they may require in exercising their legal capacity.
British Columbia enacted the Representation Agreement Act, which allows disabled persons with diminished mental capacity to enter into a representation agreement with a “support network”, which empowers them to make their own decisions when possible by providing them with interpretative and communicative assistance. As noted by the UN:
One of the main innovations in the legislation is that [it does not define capacity, meaning that] persons with more significant disabilities [do not have to meet specific criteria to] enter into representation agreements with a support network . A person does not need to prove legal competency under the usual criteria, such as having a demonstrated capacity to understand relevant information, appreciate consequences, act voluntarily and communicate a decision independently, in order to enter this agreement.
A number of individuals and support networks have entered representation agreements as an alternative to guardianship or other forms of substitute decision-making. A community-based Representation Agreement Resource Centre [Nidus] assists in developing and sustaining support networks by providing information, publications, workshops and advice. The Centre also oversees a registry in which a network can post an agreement for other parties to view if required before entering a contract with the individual.
Results & Lessons Learned
For many years, States have assumed that the mere status of having an intellectual or psychological disability provides sufficient basis to strip a person of his/her legal capacity to exercise his/her rights. This new legislation from British Columbia represents a paradigm shift away from a paternalistic-oriented substituted decision making legal scheme towards a supported decision-making which respects the legal capacity of disabled persons. It is a reflection of the Preamble of the CRPD, which recognizes “the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices” and that “persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.”
- Representation Agreement Act, RSBC 1996, c 405 (Can.). http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/latest/rsbc-1996-c-405.html