Lessons learned from British Columbia, Canada

1. LessonslearnedfromBritish Columbia, Canada Camille Latimier Belfast, 26 November 2012

2. The Representation Agreement from British Columbia: a model for supported decision-making • A Representation Agreement is a legal instrument that enables citizen, who may need help, to choose one or more people to assist them in making decisions. It is a good tool for personal planning, because it helps to create a strong personal support network. • Based on principles of the right to full personhood, self-determination and support as needed

3. Whatmakesit a uniqueagreement? • The Representation Agreement Act says that the way an adult communicates is not a factor in determining whether the adult may make a Representation Agreement • To enter a Representation Agreement an individual does not need to have legal or contractual capacity. • Representation Agreements assume that in the presence of trusting and caring relationships people demonstrate who they trust. These factors are determining capability, instead of the traditional test of capability.

4. Rolesdescribed in the Representation Agreement A representative: the person who has legal authority to assist or to act on the individual’s behalf. An alternate representative: a back-up in case the representative is unable or unwilling to act. A monitor is a safeguard and ensures that the RepresentationAgreementis working for the individual. A monitor does not have authority to make decisions for the individual. With a view to plan the future, it is a good idea to choose alternate representatives to learn and test how a support network around an individual can work.

5. The representatives duties • The representative must act honestly, in good faith, and within the law. • The representative’s first responsibility is to assist an individual to make its own decisions. The law describes how the representative must act. • Persons under Rep. Agreement are “Incapable of making decision independently” but keep their full legal capacity – see §8-Part II of the Representation Agreement Act

6. Safeguards All agreements must be witnessed: if the agreement is not done with a lawyer, then 2 witnesses are required. A monitor is appointed – for routine financial affairs. The monitor is a particularly special role. The monitor is there to ensure that the representative is following his or her duties. The monitor may also provide support and help with problem solving if necessary and the law says that no one can prevent the monitor from having contact with the adult.

7. A personalised instrument • They are two basically two types of Representation Agreements. The main difference lies in the areas of authority a person can give to his/her a representative. • There are no ready-made or ‘off the shelf forms’ for a Representation Agreement. Every Rep. Agreement isindividualised.

8. Good practices to consider • Very good collaboration between the judiciary, state authorities and the NGOs! • Public guardian/facilitator as a matter of last resort. • A Rep. Agreement is based on a presumption of capability: incapacity is not based on disability and incapacity is not assumed, until the contrary has not been proved. • The test of incapacity to enter a Rep. Agreement is very low! It is based on will / feelings / trusts

9. Good practices to consider • Examples of good practices with people with severe and/or combined disabilities, having noverbal communication • Keep records of the person communication methods and forms, will and habits • Personal identity – story: resource to determine his or her need of support NO medical or psychological statement • Using witness to report about trust relationship

10. Good practices to consider • Registered Disability Savings Plan – allow parents to leave money to their children with disabilities (it counters the high risk of abuse by family members) • Community-based agency (Nidus) that can provide information and assistance about Rep. Agreement should be a first step in case of conflict (via mediation) rather than going to Court.