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The proposed Adult Capacity and Decision Making Act would recognize the independence of adults with intellectual deficits

By Keith Doucette |
Source: The Canadian Press

Nova Scotia is moving to give people with intellectual disabilities more autonomy.

Justice Minister Mark Furey said Monday the proposed Adult Capacity and Decision Making Act would recognize a person's right to live their own life and make their own decisions, except in instances where that isn't possible because of a court-proven impairment of capacity.

It replaces the former Incompetent Persons Act, which Furey says was an "all or nothing" approach that gave complete control to a guardian for all aspects of a person's decision-making.

In June 2016, the Nova Scotia Supreme Court gave the province until the end of this year to enact a new law to conform with the Charter of Rights and Freedoms. It also overturned the "mentally incompetent" status of Landon Webb, who had fought a legal battle over the act, which he maintained infringed on his rights and freedoms.

"The changes we have made certainly are more progressive," Furey said.

The new act, tabled Monday, includes a "presumption of capacity."

"The Act itself will allow someone to apply to the court to represent another adult in making decisions in one or more areas where the adult has been shown not to have capacity," Furey said. "The proposed act makes clear that any action taken or decision made for the adult should be taken in the least restrictive and the least intrusive manner possible."

Furey said experts would asses the adult's capacity to make decisions and the court would determine whether the person applying to be a representative is suitable.

The act also includes a fine of not more than $10,000 to a representative for an adult who wilfully causes mental or physical harm to the adult in care.

Webb gained national attention after he left a rehabilitation centre in Nova Scotia's Annapolis Valley in October 2015 and wasn't heard from until several weeks later when police found him in Edmonton.

At the time, his parent went public with their concerns, saying their son had been diagnosed with developmental disabilities and functioned at the level of a 10 or 12-year-old. At a court hearing, Webb's parents revoked their guardianship in recognition of a medical assessment declaring the then 25-year-old competent.

Webb, who turns 27 later this week, told local media that he was not incompetent and wanted to be free to live a normal life.

His lawyers had called the previous act "archaic," saying its enforcement in his case was so draconian that leaving it intact amounted to legislative negligence.

In March 2016, then-justice minister Diana Whalen said the province would not oppose Webb's constitutional challenge of the Incompetent Persons Act.

Whalen said it was clear some kind of change was needed.

Webb's mother, Brenda Webb, said Monday that it was difficult to comment on the legislation because she hasn't seen the specifics of the new act.

She said she and her husband attended one meeting with provincial officials where they expressed hopes that all sides of the issue would be heard in formulating the new law.

"We hope there is more protection through a more refined and comprehensive act," Webb said in a telephone interview from her home in Piedmont, N.S.

"We are pleased there is a new act that's going to be in play and hope that what's happened to us doesn't happen to any other family."

Michelle Morgan-Coole, a disability lawyer and a guardian who is a member of Advocating Parents of Nova Scotia, said she has seen the legislation and believes the government is "trying to hit the middle of the road."

"Our legislation needed change and it needed updating there is no doubt about that," said Morgan-Coole. "But I think it's going to make it harder for families to get it (representation) and I think it's going to put the (court) cost up."

The province said it consulted with more than 275 individuals and organizations over the period covering November 2016 and August to September of this year.

The new legislation must take effect on Dec. 28 as ordered by the court.