The Changing World of Adult Guardianship

1. The Changing World of Adult Guardianship Dr. Robert M. Gordon, Professor and Director: School of Criminology, Simon Fraser University. Distinguished Fellow: Canadian Centre for Elder Law, University of British Columbia, Vancouver, Canada rgordon@sfu.ca

2. The Changing World • Some key global developments in the field of adult guardianship and substitute decision-making. • The growing interest in and implications of Shari’ah. • The impact of the growth of the cyber-world and the emergence of “e-justice.”

3. What has changed? • Early 19th Century, beginning of process of organized exclusion of the “mad” but also improvement in the conditions of confinement • Robert Gordon, M.P. “Gordon’s Bills” - 1828 Madhouse and County Asylums Act • 1832 Metropolitan Commissioners in Lunacy (system of licensing and visiting) • Regulation of private madhouses; provision of care for pauper lunatics. Led to the Imperial Lunacy Act, 1890

4. Key Global Developments since 1970 • First Wave Reforms: early 1970s, Alberta, etc., Dependent Adults Act, triggered by the UN Declaration of the Rights of Mentally Retarded Persons (1969) • Second Wave Reforms: 1980s/early 1990s - comprehensive adult guardianship and substitute decision making, etc. legislation in key Commonwealth jurisdictions (in Canada & Australia) • Third Wave Reforms: European Convention on Human Rights affecting the expanded European Union; UN Convention on the Rights of Persons with Disabilities (2006). Growth of idea of supported decision-making

5. The Main Drivers • Changing nature of institutional care and treatment (from exclusion to inclusion). • Demands of rapid population aging (costs of care, abuse and neglect, etc.). • Advances in health care, etc., (e.g., better understanding of incapacity). • Adoption of various human rights instruments. • Growing criticisms of system of adult guardianship on part of key interest groups.

6. Common Presumptions and Principles • Old presumptions and new principles, gradually extending to Common Law and Civil Code jurisdictions. • Presumption of capability, regardless of method of communication. • Right to autonomy and self determination if/when capable. • Right to the least restrictive/intrusive but most effective forms of support and assistance if incapable and in need. • Court/tribunal proceedings to be used only as an absolute last resort…develop alternatives.

7. Address Needs in the Least Restrictive/ Intrusive but Most Effective Way • How to develop least restrictive, etc., options, especially avoiding courts/tribunals? • What triggers “guardianship”, are there alternative/ better ways of addressing adults’ needs in the late 20th/early 21st Century? • Clusters of needs (the “bumps”) • Financial (and legal) decisions and daily management of financial affairs • Health care decisions • Personal care decisions (including residential care)

8. Main constituencies • Establish options for different constituencies, levels of capability/incapability, and fluctuations within the constituencies • One size does not fit all • People with degenerative diseases of aging • People with developmental disabilities • People with psychiatric disorders • People with brain injuries • People with other degenerative disorders and diseases affecting capacity (Aids, Huntingtons disease, etc.)

9. Least restrictive, etc. options • Development of planned alternatives to guardianship: enduring powers of attorney, advance (proxy) directives, inter vivostrusts, plus easy access to planned alternatives. • Health care and personal care substitute decision-making by relatives and friends, and/or instructional directives, with last resort option. • Development of supported decision-making. • Alternative dispute resolution/mediation to avoid hearings and allow for consent orders. • Temporary, statutory property guardianship by guardian/trustee. • Adult protection legislation (abuse/neglect) and public guardian/advocate/trustee services as a safety net.

10. Issues and Challenges • Assessments of incapability (new tools and techniques) • Provision of infrastructure to support alternatives and protective measures (NGOs and public guardian/ advocate/trustee services) • Professional (gatekeeper) education about the alternatives (e.g., through professional Colleges) • Growing interest in reforms by “non-Western” nations, sparked by UN Convention

11. U.N. Convention (2006) • Triggered global interest in adult guardianship reform especially supported decision-making. • Goal is progressive realization of the Convention’s provisions. • Interface with Islamic Sacred Law – Shari’ah. • Two main issues: • Reforms within Muslim countries • Application in non-Muslim countries with Muslim populations

12. Shari’ah • 1: Introduction of reforms within Muslim countries • Range of orthodoxy (cf. Malaysia/Egypt with Iran/Saudi Arabia). • Most likely in combined jurisdictions (e.g., Malaysia)

13. 2: Application in non-Muslim countries containing large and growing Muslim populations (e.g., Britain, France and Canada) • Driven by Constitutional guarantees of religious freedom; and, multi-cultural immigration policies. • Countered by fear of violations of fundamental human rights and widespread islamophobia.

14. Shari’ah • Law derived from readings and interpretations of the Qur’an, the Sunnah, & the Hadith, by Imams, and issuance of fiqh & fatwa. • Regulates daily life of Muslims, moral and physical • Defines and regulates domestic and commercial relationships • Resolution of disputes/ conflicts • Family law (divorce, maintenance, custody, etc.) • Property and inheritance, including trusts • Commercial law

15. Accommodations in Non-Muslim Countries • Offered on a voluntary basis only (religious choice). Use in non-binding settlements or consent orders. • Parallel “adjudication” (advisory) similar to restorative/aboriginal justice circle remedies. • Extensions of the community court concept. • Faith-based arbitration (Ontario Arbitration Act) using religious principles to settle disputes (halted in 2005). • More formal, enforceable decisions by alternative dispute resolution tribunals within dominant legal system (Muslim Arbitration Tribunals in Britain, 2007). www.matribunal.com

16. Shari’ah and “guardianship” • No specific interpretations or initiatives, yet. • Patriarchal principles would extend to all aspects of existing systems of substitute decision-making: • Selecting the guardian/substitute decision-maker; • Health care and personal care decisions according to Muslim principles and based upon pre-expressed wishes or values and beliefs (substituted judgment); • Best interests decisions per relevant fatwa and decisions of paternal lineage; • Management of financial affairs (control and distribution of assets).

17. The impact of the growth of the cyber-world • Real life and cyber life…the growing phenomenon of virtual existence, the e-generation and the e-niverse. • New forms of exploitation and victimization, some target vulnerable seniors; • And new forms of dispute creation (Second Life); • And new forms of (popular) justice and retribution: lasting global condemnation via the internet.

18. Cyber exploitation and victimizationof vulnerable adults • Emotional abuse • Counselling suicide, on-line predatory behaviour, harassment, e-stalking, defamation, unwanted sexting. • Financial abuse • Phishing (identity theft), fraud (bogus requests for financial aid, money transfer scams, etc.)

19. Second Life • New, organized aspect of virtual reality (Linden Corporation) • Virtual existence leading to first (real) world conflicts (divorce, stalking, sexual abuse, sexual exploitation of children)

20. e-Justice • New forms of popular e-justice: shaming and retribution via social network and other internet sites (e.g., YouTube). • Vancouver hockey riot and citizen surveillance

21. Implications for guardianship • Vindictive internet attacks on those involved with administering the guardianship system (beyond anonymous blogging) • Vindictive internet attacks on family members in disputes with other family members • Invasions of privacy of vulnerable adults (e.g., self neglect cases) to trigger interventions

22. Conclusions • “Adult Guardianship” very different to the 19th Century conception, in theory and in practice but threads remain. • Importance declining in the face of less restrictive, more effective (and cheaper) alternatives. • Form and content of the alternatives being driven by a range of factors affecting the main constituencies. • Changes now occurring on a global basis with uncertain outcomes. • Cyber-world becoming a force to be reckoned with as the e-generation ages (be prepared but watch for opportunities).

23. Questions?

25. MATCHING NEEDS AND INTERVENTIONS: ALZHEIMER DISEASE INCAPABILITY NONE SOME EXTENSIVE l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l NONE [PLANNING STAGE] [USE OF PLANNING TOOLS->.……………] [USE OF SUPPORT ………………………………………………………] INTERVENTION

26. MATCHING NEEDS AND INTERVENTIONS: BRAIN TRAUMA INCAPABILITY NONE SOME EXTENSIVE l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l NONE SUPPORTED D’MKG-------LIMITED G’SHIP-----FULL G’SHIP INTERVENTION

27. MATCHING NEEDS AND INTERVENTIONS: DEVELOPMENTAL DISABILITY INCAPABILITY NONE SOME EXTENSIVE l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l……l NONE (SUPPORTED D’MKING -> …………) (SUBSTITUTE D’MKING ->…) INTERVENTION