2019 NLCA 7, 2019 NLCA 7

A.A. (Re) (17/57) Indexed As: A.A. (Re) 2019 NLCA 7 4 C.A.N.L.R. 100 Court of Appeal of Newfoundland and Labrador Green, Welsh and Hoegg JJ.A. February 11, 2019 IN THE MATTER OF an application by A.M.A., S.A. and J.C. for an order of guardianship of the person of A.A. AND IN THE MATTER OF an ex parte appeal from a decision of a Justice of the Supreme Court of Newfoundland and Labrador made on May 25, 2017 denying the said application.

Summary: Relying on the Court’s parens patriae jurisdiction, the mother and two siblings of A.A., a thirty-five year old person with Down syndrome, applied by petition to the Supreme Court for an order that letters of guardianship be issued to them jointly so that they could manage and make decisions with respect to A.A.’s personal, health and medical affairs. The applications judge declined to grant the guardianship order on the grounds that the Court had no jurisdiction to make the order. A.A.’s mother and siblings appealed. Held: Appeal allowed.

Green J.A. (Welsh and Hoegg JJ.A. concurring): T he question in this appeal is whether the Court may make a general guardianship order which effectively delegates to someone else future general unspecified decision-making authority, as opposed to decision-making authority in a limited or defined circumstance. The standard of appellate review that the questions at issue in the appeal attract is correctness.

Unlike some other Canadian jurisdictions, this province does not have specific legislation that purports to set out a detailed regime for determining the necessity for and the conditions associated with appointment of a guardian of the person who can make general decisions relating to a person’s care if that person is incapable of doing so. However,

section 3 of the Judicature Act , R.S.N.L. 1990, c. J-4 recognizes that jurisdiction can be conferred on the Court, not only by specific legislation but also by the original Judicature Act, 1824 ,

section 6 of which confers on the Court the jurisdiction to appoint guardians of the person (as well as their estates) of individuals who by reason of mental disability are unable to govern themselves and their affairs. It applies to both those persons who had never had and never would have the mental ability to manage their own affairs, and those who during some stage in their life have lost an ability to manage their affairs.

The jurisdiction with respect to appointment of guardians of the estates of mentally disabled persons has now been effectively exercised and amplified by the Mentally Disabled Persons’ Estates Act so that the basic means of granting letters of guardianship of estates now stems from that Act . However, no supplanting legislation presently exists in this jurisdiction regarding guardianship of the person .

Even though legislation enacted subsequent to

section 6 of the Judicature Act, 1824 purported to deal with guardianship of the person, it did not effectively amend, modify or permanently supplant the broad jurisdiction conferred by

section 6 and did not eliminate any remaining operative jurisdiction derived from

section 6 when that subsequent legislation was removed from the statute books. Given

section 6’s continuing and un-repealed existence, the repeal of other subsequent legislation impacting on guardianship of the person could not be said to have removed incidentally the original jurisdiction that had been conferred on the Court. It continued – and still continues – to exist. The Court is capable of stepping into the void created by the absence of modern legislation and exercising its undoubted jurisdiction on the basis of appropriately-developed principles.

Quite apart from the parens patriae jurisdiction of the Court, jurisdiction to grant guardianship of the person has existed by statute since 1824 and the Court, in the exercise of that jurisdiction may, in an appropriate case, appoint a guardian of the person and is not limited to authorizing only a particular decision. The applications judge erred in concluding otherwise. Nevertheless, the authorization for the grant of guardianship of the person can also be found in the parens patriae jurisdiction of the Court as a superior court.

The parens patriae jurisdiction is founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her benefit or welfare. In this case, there is no statute that purports to exclude or supplant the parens patriae jurisdiction; consequently it is still applicable. Historically, the exercise of the parens patriae jurisdiction, which became vested in the Supreme Court of Newfoundland and Labrador by virtue of

section 1 of the Judicature Act , 1824 could include the appointment of a guardian of the person of a mentally disabled adult; it was not limited to the approval of specific proposed courses of action. The Court nevertheless retained jurisdiction to make individual decisions, on application by a guardian or another interested person, affecting the care or treatment of the ward, based on the ward’s best interests. The applications judge erred in law in concluding that the parens patriae jurisdiction was limited to authorizing specific decisions as and when needed.

Relying both on the statutory and parens patriae jurisdictions, the applicable principles to be observed and applied by the Court when dealing with an application for guardianship of the person are as follows. The pre-condition to the exercise of jurisdiction must be a determination that a need exists to protect the individual concerned because he or she is not able to adequately protect or care for himself or herself. In order to justify an order appointing a guardian of the person related to general care, the applicants must establish on a balance of probabilities that the person in question: (

i) is unable to understand the information that is relevant or necessary to make a decision about his or her personal care; or (ii) is unable to appreciate, or reason in respect of, the reasonably foreseeable consequences of those decisions or of failure to make those decisions. The Court ought to be cautious in applying too low a standard when concluding that an inability to care for oneself is made out. The Court ought to be wary of relying solely on boilerplate conclusory assertions of mental illness or disability and consequent inability to care for oneself.

In considering whether a guardianship order should be made, the Court should also give thought to whether guardianship is the best way in the circumstances to provide the protection and assistance the person concerned needs. There may be other mechanisms that may be effective while at the same time being less restrictive of the ward’s decision-making rights.

The guardianship order ought to be reserved for situations not covered by other procedures or where long-term general care and decision- making or representational authority are needed to enable the person to function as a member of society on a day-to-day basis. Because of the implications of a guardianship order on the values of respect and autonomy, and because each application is case-specific, fairness to the person who is the subject of the application may well require notice to that person and the provision of an opportunity to challenge the making of the proposed order.

The traditional form of guardianship order conferred full authority on the guardian to make all personal decisions relating to the ward, with the ward consequently losing all legal capacity to act on his or her own behalf. Now it is recognized that there may well be circumstances where decision-making in specific areas need not have to be overseen by a guardian while other areas would require oversight. In such cases, a guardianship order could be limited to the needed areas (provided they could be clearly identified), leaving autonomy for other things.

Furthermore, it is possible that a guardianship order could be limited in time, if the individual circumstances justified this. In other words, the scope of the guardianship order should be related to the extent of the disability and the needs of the individual. There may be certain decisions that are so fundamental and have such serious implications that a guardian should not, as matter of course, have the authority to make them unless specifically sanctioned by the Court. It does not follow that the Court should necessarily appoint the applicant or the person proposed by the applicant as the guardian. Upon

careful consideration, the proposed guardian may not be suitable by virtue of age, experience or background. There may be a conflict ofinterest. There may be difficult interpersonal relationships existing between the proposed guardian and other family members or theperson subject to the order that would potentially interfere with principled and efficient decision-making. Regarding conflict of interest,consideration should also be given to whether guardians of the person and the estate should be the same or different persons. Co-guardians are also permitted.

It may be appropriate for the Court to impose other conditions in the guardianship order. In an appropriate case, it is not unreasonable toconsider ordering security in the case of appointment of a guardian of the person as well, though it need not be the norm. The family ofthe ward, others having a sufficient interest in the welfare and well-being of the ward, and perhaps the ward himself or herself should beable to apply to have a guardian removed or to have additional guardians appointed.

In this case, the record in the Court below, especially as it relates to the mental health circumstances of A.A., contains very little detailand it would be difficult, if not impossible, to make a proper determination as to the need for appointment of a guardian and the scope ofthe guardianship that might be required. It would therefore be inappropriate to make a determination on the guardianship issue withoutallowing for the presentation of additional evidence. The matter should be remitted to the Supreme Court for a further hearing anddetermination on the merits.

Cases cited: Re A.M.S. (1993), (NL SC), 107 Nfld. & P.E.I.R. 350 (Nfld. S.C. (T.D.)) Re Eve, (SCC), [1986] 2 S.C.R. 388, 31 D.L.R. (4th) 1 Bursey v. Bursey (1966), (NL SC), 51 M.P.R. 256 (Nfld. S.C.) In re W.M. (1903), 3 S.R. (NSW) 552 (N.S.W.S.C.) R.H. v. C.A.H., [1984] 1 N.S.W.L.R. 694 (N.S.W.S.C.) Re Lunacy of Elizabeth Foran

(1836) Clift v. Holdsworth (1819), 1 Nfld. L.R. 167 J.T. v. Newfoundland and Labrador (Child, Youth and Family Services), 2015 NLCA 55, 371 Nfld. & P.E.I.R. 84 George v. Newfoundland and Labrador, 2016 NLCA 24, 378 Nfld. & P.E.I.R. 46 Beson v. Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20 Eastern Regional Integrated Health Authority v. B.A.H., 2007 NLTD 30, 263 Nfld. & P.E.I.R. 347 Bishop v. Adams (1995), (NL SC), 127 Nfld. & P.E.I.R. 240 (Nfld. S.C. (T.D.)) Bay Roberts Fisheries Ltd. v. Newfoundland (1975), 7 Nfld. & P.E.I.R. 355 (Nfld.

S.C. (T.D.) Re Jane Doe (Guardian ad Litem), 2005 NLTD 72, 246 Nfld. & P.E.I.R. 1 Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 P.H. v. Eastern Regional Integrated Health Authority, 2010 NLTD 34, 294 Nfld. & P.E.I.R. 248 D.(J.E.) v. Eastern Regional Integrated Health Authority, 2016 NLCA 32 Counsel: Douglas Wright and Melissa Saunders, for the appellants; James J. Smyth Q.C., Amicus Curiae. This appeal was heard on May 14, 2018 before Green, Welsh and Hoegg JJ.A. The following judgment was filed on February 11, 2019 by Green J.A. for the Court.

______________________________________________________________ Green J.A.: [1] This appeal addresses the scope and sphere of operation of the jurisdiction of the Supreme Court of Newfoundland and Labradorto grant an order for guardianship of the person of a mentally disabled adult. More specifically, the question to be faced is whether theCourt may make a general guardianship order which effectively delegates to someone else future general unspecified decision-makingauthority, as opposed to decision-making authority in a limited or defined circumstance.

Background [2] The mother and two siblings of A.A., a thirty-five year old person with Down syndrome, applied by petition to the SupremeCourt for an order that letters of guardianship be issued to them jointly so that they could “manage [and make decisions with respect toA.A.’s] personal, health and medical affairs.” The petition was accompanied by affidavit evidence from a general medical practitionerand family caregivers asserting in general conclusory terms that A.A. was “incapable of managing his own personal affairs and makingdecisions as related to his health care on his own behalf” and that he required “constant care, supervision and control and protection ofhis personal, health and medical affairs.” [3] The petition was not prompted by any particular event requiring specific and immediate attention, such as a recommendedmedical procedure necessary for preservation of A.A.’s health.

Rather, the petitioners sought to put a regime in place to providegenerally for A.A.’s care and continuous management so as to be in a position to respond effectively to whatever needs A.A. required inthe future. The petitioners proposed that A.A. would continue to live with his mother so long as she was able to care for him andthereafter he would be cared for by his two siblings.

The intent was to provide for a continuous care mechanism for the whole of A.A.’slife that would not require the delay, inconvenience and cost associated with having to apply to Court for specific authorizations when acrisis presented itself. There is nothing in the record to suggest that the petitioners were not acting in good faith or out of a genuinefamilial concern for A.A.’s ultimate long-term well-being. [4] The petitioners also applied for – and obtained[1] – letters of guardianship of the estate of A.A. under the Mentally DisabledPersons’ Estates Act, R.S.N.L. 1990, c.

M-10, providing for the management and control of A.A.’s financial affairs. Such a guardianshiporder does not, however, extend to the management and control of the person: Re A.M.S. (1993), (NL SC), 107 Nfld.& P.E.I.R. 350 (Nfld. S.C. (T.D.)) at paras. 7-8. The petitioners therefore presented the current petition relying on the parens patriaejurisdiction of the Court, as discussed in Re A.M.S. and Re Eve, (SCC), [1986] 2 S.C.R. 388, 31 D.L.R. (4th) 1, insupport of the order sought. The Decision Under Appeal [5] The petition proceeded as an unopposed matter of routine business in Applications Court.

The applications judge declined togrant the guardianship order on the grounds that the Court had no jurisdiction to make the order. Noting that the order granted in ReA.M.S. did not in fact grant letters of guardianship but only authorized a specific medical procedure that was urgently necessary andauthorized the Registrar to execute the required consents, the applications judge commented in a brief oral judgment: I don’t believe I have the authority to do what you’re asking….

The parens patriae jurisdiction is a protective jurisdiction with anauthority that the Court can use when necessary to protect the interests of a person and it gives the Court the jurisdiction to essentiallygive the necessary consents on behalf of that person to medical professions…. I haven’t seen any authority that would allow the Court tosimply pass over its jurisdiction in total, if you will, to a third party. The Court is able to provide a consent for a particular procedure, inparticular circumstances if it’s satisfied, then it’s in the best interest of the individual.

But …, without more, just to say to somebody elsethat you have the jurisdiction of the Court and you can do whatever you like. [In the absence of] statutory authority, I don’t believe I cando that, fully appreciating the practical difficulties [that this places] on the family … But in terms of the order you’re requesting, I can’tdo it, … [I]f it’s emergency treatment then there’s no issue about consent, but if there is treatment anticipated and for whatever reasonthe medical authorities take a legalistic approach and won’t take the consent of the family, then you’re going to have to come to Courtfor that specific consent. (Transcript, at 5-6) [6] Unlike some other Canadian jurisdictions, this province does not have specific legislation, such as exists in Ontario (SubstituteDecisions Act, 1992, S.O. 1992, c. 30,

Part II), that purports to set out a detailed regime for determining the necessity for and theconditions associated with appointment of a guardian of the person who can make general decisions relating to a person’s care if thatperson is incapable of doing so. [7] The petitioners appealed the decision of the applications judge to this Court. Because there was no party on the record to arguethe contrary position, Welsh J.A. of this Court ordered that James J. Smyth Q.C. be appointed as amicus curiae to ensure that othercontrary points of view were presented (2018 NLCA 6). The Court is indebted to Mr.

Smyth for his helpful and able submissions. [8] The Court has also had the benefit of affidavit evidence from Dr. Peter Bartlett, professor in the School of Law at the Universityof Nottingham, United Kingdom. Dr. Bartlett provided evidence as to the nature and scope of the parens patriae jurisdiction of theEnglish Court of Chancery with respect to making orders of guardianship of the person, as it existed in 1824. The affidavit was submittedby counsel for the petitioners with the consent of the amicus.

Issues [9] The issue before the Court is primarily a jurisdictional one: does the Court have jurisdiction to issue letters of guardianship ofthe person that will have the effect of authorizing a third party to make general decisions on behalf of an adult person who is by reasonof mental disability incapable of looking after his own affairs? The petitioners submit that this question must be answered in theaffirmative. The amicus, on the other hand, suggests that the jurisdiction does not extend so far, that it is limited to making orders

authorizing specific acts, such as an identified medical procedure, and that it is the Court which must make the decision. On this analysis, a third party may only be authorized to execute formal consents or take steps to implement a specific authorization that has already been granted by the Court. [ 10 ] The petitioners also submit that if this Court were to agree that the Supreme Court has the jurisdiction contended for, this Court should, in accordance with

section 8 of the Court of Appeal Act , S.N.L. 2017, c. C-37.002 , proceed to make the order for issuance of letters of guardianship to them that the applications judge should have made. On this point also, the amicus preaches caution.

He suggests that the information presented in the original petition for guardianship is insufficient to meet the evidentiary requirements to make a guardianship order and that, at the very least, the matter should be remitted to the Supreme Court to allow for the submission of further evidence on the mental capacity of A.A. to make his own decisions concerning various aspects of his personal care relating to such things as medical care, nutrition, shelter, clothing, hygiene and safety and to his ability to appreciate the reasonably foreseeable consequences of those decisions.

Amicus submits that it would be inappropriate on the existing record for this Court to make the required findings of fact and draw the necessary conclusions on these questions. [ 11 ] I would also add that if this Court were to conclude that the Supreme Court has jurisdiction to make an order for general guardianship of the person, a subsidiary question will also arise: what are the principles upon which such an order should be granted? [ 12 ] As to the standard of appellate review, these questions (whether the Court has jurisdiction, what principles should govern if jurisdiction exists, and the appropriate approach to determining whether the Court should make a decision in exercise of that jurisdiction) are matters of law or legal principle.

As such they attract a standard of correctness. Jurisdiction (

a) Statutory Authority [ 13 ] The decision in the court below proceeded on the assumption that there was no statutory authority existing in this province authorizing the appointment of a general guardian of the person that would have the effect of delegating general care decisions to a third person.

Accordingly, if the jurisdiction did exist it would have to be found in the parens patriae jurisdiction of the Court which, in the view of the applications judge, was limited to authorizing specific decisions as and when they presented themselves. [ 14 ] As noted previously, the Mentally Disabled Persons’ Estates Act relates only to guardianship of property and financial matters. As well, the Mental Health Care and Treatment Act, S.N.L. 2006, c.

M-9.1 (which provides for the institutional detention and treatment of persons with a mental disorder which is likely to result in dangerous behavior) does not deal with guardianship. [ 15 ] The Adult Protection Act , S.N.L. 2011, c. A-4.01 comes closer to the issue but it does not cover the whole field. Using a model similar to the scheme for intervention in respect of children in need of protection under the Children and Youth Care and Protection Act , S.N.L. 2010, c.

C-12.2 , it essentially provides for protective intervention by public authorities for adults experiencing abuse or neglect or who are incapable of caring for themselves. [ 16 ] The Act applies to an “adult in need of protection”, which is defined by

section 5 as “an adult who lacks capacity and who (

a) is incapable of caring for himself or herself, or who refuses, delays or is unable to make provision for adequate care and attention for himself or herself; or (

b) is abused or neglected.” Upon receiving a report from a government official called a “director” that an adult is in need of protection, together with a “service plan” prepared by the director, the provincial director, as defined in the Act, may apply to court for a declaration that the adult is in fact in need of protection.

If confirmed by the court, the judge may, by virtue of section 22(1), make an order committing the adult to the “care and custody” of the provincial director “who in his or her discretion may make decisions on behalf of the adult, including health care decisions.” Alternatively, the court may order that the adult continue to live independently subject to supervision by a director or be placed, subject to supervision by a director, in the “care and custody” of a person with whom the adult has been living or in the home of some other “suitable person”.

The court may also order a spouse or co-habiting partner of the adult to be responsible for the payment of support. [ 17 ] Although not strictly limited in its application to situations of active abuse or neglect, the focus of this state-initiated scheme is to provide a means of removal or protection from an abusive or neglectful environment and to ensure that those having a care responsibility provide the requisite financial support.

It is not designed to allow for general guardianship applications by family members or other interested individuals who are not complaining about abuse or neglect by existing caregivers or caused by an unsatisfactory living environment, but who are seeking to provide legal structure and authority for day to day care or longer term life management of the affected adult.

Except in the case of committal of care and custody to the provincial director, the Act does not specify the extent of decision-making authority that may be conferred on others who are given care and custody and certainly does not make it clear whether they are intended to have full guardianship powers. [ 18 ] The Adult Protection Act does not therefore cover the whole field with respect to representative decision-making for adults, any more than the Children and Youth Care and Protection Act covers the whole field with respect to control, protection, custody and care of children.

There is still room for custody orders in favour of individuals with respect to children and for general guardianship orders with respect to adults outside of any protective scheme based on state intervention. The mere existence and potential application of such schemes does not preclude the Court’s jurisdiction in other circumstances. [ 19 ] The Advance Health Care Directives Act , S.N.L. 1995, c. A-4.1 allows for substitute decision-making in certain circumstances relating to medical treatment of persons determined to be mentally incompetent.

Section 10 provides that where a person “requires the administration of health care” but lacks the competency to make a health care decision and has not appointed a substitute decision-maker “or a guardian has not been appointed for the purpose by a court” certain persons designated in a statutory list are authorized, in order of stated priority, to act as substitute decision-makers with respect to the health care decision in question.

Such decisions are defined to mean consents or refusal or withdrawals of consent to “care, treatment, service, medication, or procedure to maintain, diagnose, treat or provide for an individual’s physical or mental health or personal care” (s. 2(b)). [ 20 ] The Act only addresses substitute decision-making for specific issues as they arise and only within the medical context. Further,

section 10 only applies where “a guardian has not been appointed … by a court.” This assumes that there remains an area forappointment of guardians of the person by the Court, at least for the purpose of health care decisions, and that such guardianship couldinvolve delegation of the decision-making authority to a third party (the guardian). Indeed, that is the basic concept underlying thenotion of substitute decision-making.

Court authorization of consent to only a specific proposed treatment would not require theappointment of a guardian because the Court could give that authorization itself, as was done in Re A.M.S. [21] None of the aforementioned pieces of legislation addresses the appointment of a guardian of the person to enable ongoingpersonal care decisions by the appointed guardian to be made without applying to the Court for specific authorization on an issue-by-issue basis. [22] There is, however, additional statutory authority that must be considered.

Section 3 of the Judicature Act, R.S.N.L. 1990, c. J-4provides: 3.

(1) The Supreme Court of Newfoundland and Labrador, Trial Division as it existed before the coming into force of this

section iscontinued as the Supreme Court of Newfoundland and Labrador and shall have all civil and criminal jurisdiction conferred upon theSupreme Court of Newfoundland (

a) by the Imperial Statute passed in the 5th year of the reign of His late Majesty King George the 4th, entitled “An Act for the betteradministration of justice in Newfoundland, and for other purposes”; (

b) by the Royal Charter or Letters Patent under the Great Seal, issued by virtue of the Imperial Statute, dated September 19th, 1825,in the 6th year of His late Majesty’s reign; and (

c) by a law in force in the province. (2) the Supreme Court has all the inherent powers of a superior court at common law. [23] This provision, in slightly different wording depending on changes in the name of the Court over time, has been carried forwardin successive judicature acts from 1824 to the present day. It recognizes that jurisdiction can be conferred on the Court, not only byspecific legislation (s. 3(1)(c)) but also by the original 1824 judicature act entitled “An Act for the better administration of justice inNewfoundland and for other purposes” (s. 3(1)(

a) and which I will hereafter refer to as the Judicature Act, 1824) and the Royal Charterof 1825 passed under authority of the Judicature Act, 1824 (s. 3(1)(b)). The Judicature Act, 1824 and the Royal Charter enactedpursuant to it have been described by Furlong C.J. in Bursey v. Bursey (1966), (NL SC), 51 M.P.R. 256 (Nfld. S.C.) at260 as the “fountain” of the Court’s power to this day. [24]

Section 6 of the Judicature Act, 1824 contains the following provision: VI.

The said Supreme Court shall have power and authority … to appoint guardians and keepers of the persons and estates of naturalfools, and of such as are or shall be deprived of their reason and understanding, so as to be unable to govern themselves and their affairs,which the said Supreme Court shall have the power and authority to inquire of and determine, by inspection of the person, or by suchother ways and means as to such Supreme Court shall seem best for ascertaining the truth. [25] Despite its use of terminology (“natural fools”) of an earlier era that would be regarded as insensitive and unacceptable today,this statutory provision, which is homologated into the current Judicature Act by virtue of

section 3(a), confers on the Court thejurisdiction to appoint guardians of the person (as well as their estates) of individuals who by reason of mental disability are “unable togovern themselves and their affairs.” Traditionally in English law, there was a distinction between “fools”, representing those who hadnever had and never would have the mental ability to manage their own affairs, and “lunatics” representing those who during some stagein their life lost an ability to manage their affairs that they formerly had (Margaret Isabel Hall, “Dementia, Decision-Making, and theModern (Adult) Guardianship Paradigm: Bentley v.

Maplewood Seniors Care Society” (2015), 1 Can. J. Comp. Contemp. L. 293 at 297-298). [26] Both categories are covered by

section 6 by the references to “natural fools” and those “as are or shall be deprived (emphasisadded)” of their reason or understanding. [27] See also on this point, In re W.M. (1903), 3 S.R (NSW) 552 (N.S.W.S.C.) and R.H. v. C.A.H., [1984] 1 N.S.W.L.R. 694(N.S.W.S.C.) both of which are decisions of the New South Wales Supreme Court that considered

section 18 of the 1823 Charter ofJustice promulgated under the New South Wales Act, 4 Geo IV c.

Section 18 conferred jurisdiction on the New South Wales SupremeCourt relative to guardianship of estates and of the person in virtually identical terms to that contained in

section 6 of our Judicature Act,1824. (I note parenthetically that Sir Francis Forbes, former Chief Justice of Newfoundland, contributed to the drafting of the legislationconstituting the New South Wales Supreme Court: C. H. Currey, Sir Francis Forbes: The First Chief Justice of the Supreme Court ofNew South Wales (Sidney: Angus & Robertson, 1968), ch. 3). In In re W.M. a full bench of the Supreme Court of New South Wales held,at 565, that “lunacy” jurisdiction of the Court was conferred by the phraseology employed in

section 18. Similarly, in R.H. v. C.A.H.Powell J. of the Protective Division of the same Court held, at 706, that adults suffering severe intellectual disability from birth fellwithin the terminology of “natural fools” in

section 18. [28]

Section 6 thus gives the Court wide powers to make the necessary inquiries as to the ability of persons with mental disability tocare for themselves and, if they are found not to be able to do so, to appoint a guardian to make necessary decisions on their behalf. [29] A guardian, by the very nature of the term, is a person appointed by the Court and entrusted with responsibility to protect andmanage the affairs of vulnerable or other persons who are incapable of protecting and making decisions for themselves.

The effect of aguardianship order is to transfer legal rights of decision-making from one person (the ward) to the guardian. It of necessity contemplatesthat decisions will be made by a third party (the guardian) and not the Court and that the role may extend over a potentially long periodof time (if the disability is permanent) and will not necessarily be restricted to making one or a limited number of imminent decisions.

[ 30 ] The jurisdiction in

section 6 of the Judicature Act, 1824 with respect to appointment of guardians of the estates of mentally disabled persons has now been effectively exercised and amplified by the Mentally Disabled Persons’ Estates Act so that the basic means of granting letters of guardianship of estates now stems from that Act (see section 3(1)(

c) of the current Judicature Act quoted above). (I leave open the question whether there remains a residual jurisdiction, by virtue of

section 6, to grant guardianship of estates in extraordinary circumstances where the Mentally Disabled Persons’ Estates Act may not apply). [ 31 ] But it is otherwise with respect to guardianship of the person . No supplanting legislation presently exists in this jurisdiction regarding guardianship of the person. Historically, that was not always the case. From 1859 until 1904, in exercise of the jurisdiction conferred by

section 6, various statutes and rules of court recognized and made provision for the making of orders for guardianship of the person employing language that essentially tracked the words in

section 6 (

An Act to amend the Practice and Mode of Procedure in Granting Probates and Letters of Administration, and for other purposes, S.N. 1859, c. 6, s. 15; Of Probate of Wills and Letters of Administration , C.S.N. 1872, c. 31, ss. 13, 17;

An Act to amend

Chapter Thirty-one of the Consolidated Statutes, entitled “Of Probates of Wills and Letters of Administration” , S.N. 1879, c. 16; Judicature Act, 1889 , S.N. 1889, c. 29, adopting Rules of the Supreme Court, 1889, Order 46, r. 6). [ 32 ] In 1904, a new Judicature Act was passed (S.N. 1904, c. 3). Although containing a provision authorizing petitions for “guardianship” (section 172), it did not explicitly differentiate anymore between the two categories of guardianship of the person and guardianship of estates. It also no longer contained express reference to the language in

section 6 that covered both those suffering intellectual incapacity from birth and those subsequently developing disability by virtue of disease, illness, injury or other cause, i.e. the two traditional categories of “fools” and “lunatics”. Furthermore any specific references to guardianship of the person and of estates were removed from the rules of court. The Act also contained a provision (section 180) that a “guardian or receiver of property” would not be appointed until security was given. [ 33 ] The legislation essentially remained in this form up to the present day.

Sections 172 and 180 continued in successive judicature acts up to the current one ( Judicature Act, sections 112 and 120 ). The current rules of court also do not replicate the specific references to guardianship of both person and estates that were contained in the rules adopted pursuant to the Judicature Act prior to 1904. They now contain only generalized references to guardianship and seem more directed towards guardianship of infants and their estates ( Rules of the Supreme Court, 1986 , rules 56.24, 56.29(1)(b), 56.30(1)(

c) and (d)). Certainly, the references in the current Judicature Act and in the rules to the requirement for inventories of the estate of the proposed ward to be attached to the petition, for security to be given and the types of information to be provided on the application suggest that what is being dealt with is only petitions for guardianships of estates and not of the person.

The conventional wisdom appears to be that the current Judicature Act and rules of court deal with guardianship of infants and their property, the Mentally Disabled Persons’ Estates Act deals with guardianship of estates of adults and there is no specific legislation dealing with guardianship of the person. [ 34 ] Specifically with respect to the “lunacy” portion of the jurisdiction conferred by

section 6, from and after 1897 legislation was also passed dealing with this issue.

Section 51 of the Lunacy Act, 1897, S.N. 1897, c. 15 authorized the Court to “make orders for the custody of lunatics” and “the management of their estates.” The Medical Superintendent was authorized to apply to Court for appointment of a committee when an individual was institutionalized, no guardian had already been appointed and a sum was due for the person’s maintenance. The 1897 Act was repealed by the Lunacy Act, 1907 , S.N. 1907, c. 13, which dealt with appointment of guardians of estates but not of the person.

Except for a provision, extant from 1931 to 1971, that allowed the release of an institutionalized patient into the “custody of his friends” if it would be “conducive to the recovery” of the patient and the friend provided a written statement that “he or they will keep a proper oversight over him” ( Health and Public Welfare Act , S.N. 1931, c. 12, s. 471, repealed without replacement by Mental Health Act, 1971 , S.N. 1971, c. 80), no further provision that could be said to deal specifically with guardianship of the person has existed in the legislative record. [ 35 ] The fact that legislation enacted subsequent to

section 6 of the Judicature Act, 1824 purported to deal with guardianship of the person raises the question whether such legislation effectively amended, modified or permanently supplanted the broad jurisdiction conferred by

section 6 such that when that subsequent legislation was removed from the statute books it effectively eliminated any remaining operative jurisdiction derived from

section 6. I am satisfied that it did not. The effect of subsequent legislation on the original conferral of guardianship jurisdiction was directly dealt with in the New South Wales decisions cited previously. [ 36 ] In In re W.M.

Owen J., with whom the other members of the Court concurred, observed at 565 and 567: The lunacy jurisdiction of the Supreme Court was originally conferred by clause XVIII of the Charter of Justice: “And we do hereby authorize the said Supreme Court of New South Wales to appoint … guardians and keepers of the persons and estates of natural fools, and of such as are or shall be deprived of their understanding or reason by the act of God, so as to be unable to govern themselves and their estates…” … These words are very wide and comprehensive … It was contended that the prerogatives of the Crown in Lunacy were granted by the Act 17 Ed.

II., c. 9 and 10, and that, as that statute, so far as it was in force in New South Wales, was repealed by the Lunacy Act of 1878, the powers conferred by the Charter of Justice in Lunacy are by necessary implication taken away. But the Statute 17 Ed. II. Was only declaratory of the Common Law… …It was contended that the Lunacy Act of 1878 took away the power conferred on the Supreme Court in its lunacy jurisdiction by the Charter of Justice, and that it was a code which swept away all the former Acts and conferred on the Court only the limited powers mentioned in the Act.

I have already dealt with the repeal of the Statute 17 Ed. II., c. 9. I cannot see that the Lunacy Act of 1878 repeals or takes away the general powers of the Court… I, therefore, am of opinion that the powers conferred on the Court by the Charter of Justice still remain vested in the Court as fully under the new process as under the old process by commission de lunatico inquirendo. [ 37 ] In like manner, the much later decision in R.H. v. C.A.H. affirmed that the jurisdiction conferred by the New South Wales equivalent of

section 6 continued to exist notwithstanding the enactment of subsequent legislation, so as to enable the court to appoint a committee of the person and the estate of a 28-year-old woman with a severe intellectual disability that had existed since birth. [ 38 ] Both of these cases stand for the proposition that the jurisdiction of the court derived from

section 18 of the New South Wales

Charter of Justice remained unaffected and undiminished notwithstanding other subsequent legislative interventions, at least in the absence of an attempt expressly to repeal it. This analysis is equally applicable to

section 6 of our Judicature Act, 1824. Given

section 6’s continuing and un-repealed existence, the repeal of other subsequent legislation impacting on guardianship of the person could not be said to have removed incidentally the original jurisdiction that had been conferred on the Court. It continued – and still continues – to exist. This is confirmed indirectly by

section 3 of the current Judicature Act reaffirming that the jurisdiction conferred by the Judicature Act, 1824 and the Royal Charter issued thereunder continues as the jurisdiction of the current Court.

Section 6 could not therefore be said even to have been implicitly repealed by subsequent events, even if the notion of implicit repeal would have been sufficient in the circumstances. Accordingly, one can conclude that by removing specific references to guardianship of the person from subsequent legislation and rules of court the legislature was not deciding to expunge the legal power to grant guardianship of the person from Newfoundland and Labrador law altogether but was simply relying on the continuing existence of

section 6 as the basis for the Court to exercise the jurisdiction when appropriate circumstances presented themselves. [ 39 ] Accordingly,

section 6 continues to supply the jurisdictional “fountain” for appointment of guardians of the person. While it is true that there are no statutory provisions setting out detailed rules for how the jurisdiction should be exercised in a given case (see, by contrast, the Ontario Substitute Decisions Act cited earlier) that does not mean that the absence of statutory guidance results in the evaporation of jurisdiction.

The protection of the vulnerable has been a jurisdiction that has been exercised on the equity side of the courts, which always act on a case-by-case basis applying general principles rather than rigid rules. The Court is certainly capable of stepping into the void created by the absence of modern legislation and exercising its undoubted jurisdiction on the basis of appropriately-developed principles. [ 40 ] In fact, it has done so. E.M. Archibald, former Attorney General of the colony of Newfoundland and author of Digest of the Laws of Newfoundland (St.

John’s: Henry Winton, 1847) specifically commented in his Digest on

section 6 of the Judicature Act, 1824 and observed, at page 55, that the Court in its early days had exercised its jurisdiction to make guardianship orders of the person and had done so on analogy with English Chancery proceedings relating to lunacy inquiries. He referred, from his own knowledge, to three cases as examples. [ 41 ] The cases in question have not been included in any official law reports. However, the record of the minutes of one of the proceedings still exists at The Rooms Provincial Archives in St. John’s ( Supreme Court and Central District Court Register of Proceedings on the Equity Side, 1834-1836, GN/5/2/A/1, Box 36). [ 42 ] In Re Lunacy of Elizabeth Foran

(1836) Mary Ann Bulger and Lucinda Bulger petitioned the Court for an order appointing them guardians of the person and estate of Elizabeth Foran. The Court ordered an inquiry to be made as to Ms. Foran’s mental status by a commission composed of four persons. Upon subsequent consideration of the resulting report, the Court granted the petition. The Minutes record: Grant of Person and Estate under Seal of Sup[reme] Court issued to Mary Ann Bulger and Lucinda Bulger of St. John’s, aforesaid, Spinsters. Sureties: James Meyers of St. John’s, Merchant, John Boyd of St.

John’s, Gentleman. [ 43 ] Of note with respect to this Order is that the appointment was not for the making of a specific decision but for the general management and care, without limitation, of the individual involved. As well, it also involved the appointment of more than one person to act on her behalf.

Although the record does not advert to this, presumably if the two guardians became deadlocked with respect to a given decision, the Court would have retained jurisdiction to break any deadlock. [ 44 ] It can be said, therefore, that from an early date after enactment of the Judicature Act, 1824 the Court interpreted its jurisdiction to grant guardianship of the person of mentally disabled persons expansively and certainly did not limit its role to that of authorizing specific decisions on an ad hoc basis.

This approach is consistent with the expansive approach adopted by the Court with respect to interpreting the jurisdiction of the Court generally, namely, to conclude that the Court, as a superior court, has jurisdiction to dispose of all matters that come before it and which the Court is not specifically forbidden to consider: Bursey per Furlong C.J. at 261; Clift v. Holdsworth (1819), 1 Nfld. L.R. 167, per Forbes C.J. at 168; J.T. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2015 NLCA 55 , 371 Nfld. & P.E.I.R. 84 per Green C.J.N.L. at para. 15; George v.

Newfoundland and Labrador , 2016 NLCA 24 , 378 Nfld. & P.E.I.R. 46 per Barry J.A. at para. 117. [ 45 ] I would also note that

section 6 meshes nicely, in the health care context, with

section 10 of the Advance Health Care Directives Act which as previously noted provides for substitute decision-making where “a guardian has not been appointed for that purpose by a court.”

Section 6 of the Judicature Act, 1824 therefore fills the void that would otherwise exist and gives substance to the implicit recognition in the Advance Health Care Directives Act of the potential existence of an authority to appoint guardians of the person. [ 46 ] I conclude, therefore, that quite apart from the parens patriae jurisdiction of the Court, jurisdiction to grant guardianship of the person existed by statute since 1824 – one of the very statutes constituting the Court – and that the Court, in the exercise of that jurisdiction may, in an appropriate case, appoint a guardian of the person and is not limited to authorizing only a particular decision.

The applications judge erred in concluding otherwise. [ 47 ] Whether or not the Court ought to exercise that jurisdiction in a given case is, of course, a different question. That is something dealt with later in this decision. (

b) Parens Patriae Jurisdiction [ 48 ] It is not necessary to rely on the parens patriae jurisdiction of the Court to reach the foregoing conclusion. Nevertheless, I conclude as well that the authorization for the grant of guardianship of the person can also be found in the parens patriae jurisdiction of the Court as a superior court. [ 49 ] The parens patriae jurisdiction is an inherent jurisdiction vested in a superior court as the inheritor of the jurisdiction from the English court system. Section 3(2) of the Judicature Act provides that the Supreme Court of Newfoundland and Labrador has “all the inherent powers of a superior court at common law.”

[50] In Re Eve, La Forest J. described the parens patriae jurisdiction of a superior court in Canada as follows: … From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, asLord Eldon noted in Wellesley v. Duke of Beaufort [(1827), 2 Russ. 1, 38 E.R. 236] at 2 Russ., at p. 20, 38 E.R. at p. 243 is founded onthe obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves.

In earlyEngland, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and,following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship,and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in theprovincial superior courts of this country, … The parens patriae jurisdiction is … founded on necessity, namely the need to act for the protection of those who cannot care forthemselves.

The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his orher “benefit” or “welfare.” The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. … [T]he categories underwhich the jurisdiction can be exercised are never closed. … [T]he jurisdiction is of a very broad nature and that it can be invoked in suchmatters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list …is not exhaustive.

What is more, … a court may act not only on the ground that injury to person or property has occurred, but also on the ground that suchinjury is apprehended. … [T]he jurisdiction is a carefully guarded one. The Courts will not readily assume that it has been removed bylegislation where a necessity arises to protect a person who cannot protect himself. [51] Earlier, La Forest J. also observed, citing Beson v.

Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R.716, 142 D.L.R. (3d) 20, that “even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction todeal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit” (at 411).This approach is based on the continued existence of the parens patriae jurisdiction where it is not clearly supplanted by other legislationso that there is still “a gap in the legislative scheme” or “a deficiency in the statute” (per Wilson J. in Beson at 724). [52] In this case, there is no statute that purports to exclude or supplant the parens patriae jurisdiction; consequently it is stillapplicable. [53] In Re Eve, the Court held that, although the superior court had parens patriae jurisdiction “to protect those who are unable totake care of themselves, and in so doing it has a wide discretion to do what it considers to be in their best interests” (at 437), the Courtcould not exercise its jurisdiction to approve a non-therapeutic sterilization of a young woman suffering mental disability where therewas no evidence that failure to perform the procedure would have a detrimental effect on the woman’s health.

For the present case, twothings are noteworthy: (

i) the issue was approached as one for the Court to make, as opposed to one that fell within the purview of the“committee of the person” that had been appointed under legislation; and (ii) the power to be exercised had to be exercised in theinterests of the person under disability rather than for the convenience or at the behest of a third party who might be indirectly affectedby the failure to conduct the sterilization. [54] In Re A.M.S., I purported to follow Re Eve when I concluded that the better approach was for the Court itself to authorize aspecific surgery and related medical treatment of facial basal cell carcinoma of a mentally disabled woman, instead of authorizing aguardian of the woman’s estate to make the decision as to whether consent should be given. [55] In Re Eve and Re A.M.S. as well as Eastern Regional Integrated Health Authority v.

B.A.H., 2007 NLTD 30, 263 Nfld. &P.E.I.R. 347, what was at issue were specific proposed medical surgeries, not a request for plenary authority to be vested in a guardian tomake future, at present unknown, decisions about general care. Those cases did not need to address the broader question and thereforecannot be said to be authorities limiting the parens patriae jurisdiction to only authorization of specific decisions. [56] The decision of Barry J. in Bishop v. Adams (1995), (NL SC), 127 Nfld. & P.E.I.R. 240 (Nfld. S.C. (T.D.)),on the other hand, suggests a wider jurisdiction.

The children of a woman diagnosed with progressive dementia disagreed over whethertheir mother should reside with and be cared for in an institution or in the home of one of the children. There was no impending medicalor other issue that specifically required an immediate decision. The question, instead, was what was in the mother’s best interestsrelative to long-term care.

Two of the children brought opposing applications to resolve the impasse. [57] Relying on the parens patriae jurisdiction of the Court, Barry J. made a determination that the interests of the mother were betterserved by living in the home of the son who made one of the applications. Consequently, he made an order in favour of the son for the“care and custody” of the mother with a view to effectuating the preferred custodial arrangement. [58] Although Barry J. did not use the term “guardianship”, the order he made was effectively a general guardianship order.

Thisdecision therefore supports the broad jurisdiction of the Court to make a guardianship order of the person providing for general care. [59] Speaking more generally, can it therefore be concluded that the parens patriae jurisdiction extends so far? [60] The affidavit of Dr. Peter Bartlett, professor in the School of Law in the University of Nottingham, United Kingdom, addressesthis issue.

His areas of research and writing include the laws of the United Kingdom relating to “the guardianship of adults with a mentaldisability together with the historical antecedents of such laws, including the evolution and eventual statutory replacement of the parenspatriae jurisdiction of the courts in England with respect to adults with a mental disability” (Bartlett Affidavit, paragraph 4). [61] Dr. Bartlett’s evidence indicates that at the time of the enactment of the Judicature Act, 1824, guardians of the person wereappointed in the United Kingdom in exercise of the parens patriae jurisdiction.

He expressed it this way: (

a) At the time of the enactment of the Imperial Statute in 1824, the jurisdiction of the Courts of Chancery included the parens patriae

jurisdiction over both the property and the persons of adults with mental disabilities; (

b) Guardianship over property and guardianship over the person of adults who were under a mental disability were legally distinct forms of guardianship, although court-appointed guardians over the person and the property of an adult found to be under a mental disability were often the same individual or individuals; (

c) There was never a legal requirement that the Court of Chancery, upon having found an adult to be under a mental disability, directly make all decisions for that adult in respect of his or her person; in exercising its parens patriae jurisdiction, the Court appointed guardians for such adults to make all decisions on their behalf in all matters respecting their person; (

d) Notwithstanding the appointment by the Court of a guardian of the person of a mentally disabled adult, the Court retained its parens patriae jurisdiction over that adult. Such jurisdiction was not relinquished by the Court by virtue of its appointment of the guardian; (

e) After committing the person of an adult under a mental disability to the guardianship of another individual or individuals, the Court of Chancery continued to have the ability to make decisions on what was in the best interest of the adult who was the subject of the guardianship. Where such decisions were taken directly by the Court, it was most often in the context of approving or withholding approval of a proposed course of action where there was a question brought to the Court (by the guardian or by another party) as to whether the proposed decision was in the best interest of the disabled adult.

Historically, this form of direct substitute decision making by the Court under its parens patriae jurisdiction was almost exclusively connected to matters affecting the disabled adult’s property or finances and was rarely with respect to the person of the disabled adult. [ 62 ] From Dr. Bartlett’s excursus, I conclude that: (

i) The exercise of the parens patriae jurisdiction could include the appointment of a guardian of the person of a mentally disabled adult; it was not limited to the approval of specific proposed courses of action; (ii) The Court nevertheless retained jurisdiction to make individual decisions, on application by a guardian or another interested person, affecting the care or treatment of the ward, based on the ward’s best interests. [ 63 ] This jurisdiction to appoint a general guardian of the person in exercise of the parens patriae jurisdiction in England undoubtedly became vested in the Supreme Court of Newfoundland and Labrador by virtue of

section 1 of the Judicature Act , 1824 which provided that the “Supreme Court of Newfoundland”: … shall have all civil and criminal jurisdiction whatever in Newfoundland… as fully and amply, to all intents and purposes, as His Majesty’s Courts of King’s Bench, Common Pleas, Exchequer and High Court of Chancery , in that part of Great Britain called England, have or any of them hath … (Emphasis added.) [ 64 ] Relying on this provision, Furlong C.J. in Bursey described the jurisdiction of the Court as “sufficiently ample for it to dispose of all matters which came before it and which the Court is not specifically forbidden to consider” (at 261).

See also Archibald, at 45. [ 65 ] I conclude, therefore, that under its parens patriae jurisdiction the Supreme Court may appoint a guardian of the person and by so doing provide for the general care of adult persons who are unable to care for themselves. The applications judge erred in law in concluding that the parens patriae jurisdiction was limited to authorizing specific decisions as and when needed. (

c) Conclusion as to Jurisdiction [ 66 ] It follows from the foregoing discussion that the Court has jurisdiction to appoint a guardian of the person of someone who is, by virtue of mental disability, unable to care adequately for themselves or to make rational decisions or understand the consequences of decisions relating to that care.

In declining to exercise jurisdiction in this case, the applications judge erred in law. [ 67 ] It does not follow, of course, that the judge, having been entrusted with jurisdiction, should necessarily have proceeded to make the guardianship order that the petitioners were requesting in this case. As noted by La Forest J. in Re Eve , writing about the parens patriae jurisdiction: Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle.

Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised… [ 68 ] This approach is equally applicable to the exercise of the statutory jurisdiction under

section 6 of the Judicature Act, 1824 . That

section also places emphasis on the inability of persons with mental disability to “govern themselves and their affairs” and thus on the need to protect them. Although La Forest J. was writing in connection with a specific court-authorized decision and not a general guardianship order, the approach also applies when addressing whether the Court itself should authorize a particular decision or appoint a general guardian to be entrusted with authority to make future decisions.

As noted previously, the parens patriae jurisdiction which the Supreme Court of Newfoundland inherited in 1824 allowed for the appointment of general guardians of the person. [ 69 ] It becomes necessary, therefore, to address the principles upon which the Court should rely in deciding whether to make a guardianship order. Principles Applicable to the Exercise of Jurisdiction [ 70 ] Although Newfoundland and Labrador has no statutorily-mandated regime like that in Ontario that addresses how the Court

should exercise its discretion to appoint a guardian of the person in a given case, that should not prevent the Court from developing and enunciating appropriate general principles to guide a court in the exercise of its jurisdiction.

Indeed, as La Forest J. asserted in Re Eve , the parens patriae jurisdiction “must be exercised in accordance with its underlying principle.” [ 71 ] If the Court has jurisdiction to recognize and enforce a statutory right, it cannot be prevented from granting a remedy simply because the procedure for enforcing the right and granting the remedy is not provided by the statute in question. Ubi jus ibi remedium ( Bay Roberts Fisheries Ltd. v. Newfoundland (1975), 7 Nfld. & P.E.I.R. 355 (Nfld.

S.C. (T.D.), per Mifflin J. at para 14). [ 72 ] Accordingly, relying both on the statutory and parens patriae jurisdictions, I would set out the applicable principles to be observed and applied by the Court when dealing with an application for guardianship of the person as follows. 1. Need for Protection and Assistance in making Fundamental Life Choices [ 73 ] The pre-condition to the exercise of jurisdiction must, of course, be a determination that a need exists to protect the individual concerned because he or she is not able to adequately protect or care for himself or herself.

Without that determination there will be no justification for interfering with the individual’s independence as an autonomous agent having a right to self-determination of his or her own life. [ 74 ] In Re A.M.S. , in the context of determining whether the Court ought to authorize a specific medical procedure for a mentally disabled woman, I expressed the test for exercising the Court’s parens patriae jurisdiction this way: [25] … the pre-condition to the exercise of jurisdiction that will result in interference with the principles of autonomy and self- determination should only be made when it has been established that the person for whom the decision is proposed to be made does not have the ability to appreciate and understand the medical condition being experienced, the treatment options available (including the option of non-treatment) and the risks inherent in the choices of those various options. [ 75 ] A similar formulation of the test relative to authorization of a specific medical procedure was enunciated by Halley J. in Re Jane Doe (Guardian ad Litem) , 2005 NLTD 72 , 246 Nfld. & P.E.I.R. 1 at para. 9 .

Halley J. relied also on the two criteria mentioned in Starson v. Swayze , 2003 SCC 32 , [2003] 1 S.C.R. 722 which should be applied to determine capacity to accept or reject medical treatment: (

i) ability to understand the information relevant to making an appropriate decision; and (ii) ability to reasonably appreciate the foreseeable consequences of the decision. ( See also Eastern Regional Integrated Health Authority v. B.A.H. , per Barry J. at paras. 16 and 21 ). [ 76 ] Extrapolating from the specific medical treatment scenario, and building on the language of

section 6 of the Judicature Act, 1824 (“deprived of their reason and understanding so as to be unable to govern themselves or their affairs”) and applying those considerations to making decisions relating to personal care generally, we can say that in order to justify an order appointing a guardian of the person related to general care, the applicants must establish on a balance of probabilities that the person in question: (

i) is unable to understand the information that is relevant or necessary to make a decision about his or her personal care; or (ii) is unable to appreciate, or reason in respect of, the reasonably foreseeable consequences of those decisions or of failure to make those decisions. [ 77 ] The areas of personal care to which the Court should direct its attention are the basic ones related to functional living such as matters of feeding and nutrition, shelter, clothing, health, travel, hygiene and safety. [ 78 ] That said, the Court ought to be cautious in applying too low a standard when concluding that an inability to care for oneself is made out.

We all know that perfectly competent people sometimes engage in risky behavior and make decisions that, viewed objectively, are not wise. Many people do not pay close attention to their diet and indulge in habits even though they know such activities are not good for them and may ultimately harm their health. Even in respect of important life-altering decisions such as consent to medical treatment, a competent adult is entitled to act irrationally and against his or her best interests in refusing care ( P.H. v. Eastern Regional Integrated Health Authority , 2010 NLTD 34 , 294 Nfld. & P.E.I.R. 248 at para. 31 ).

One must view the alleged mentally disabled person through a similar lens. [ 79 ] In making a determination on this threshold question, the Court ought to be wary of relying solely on boilerplate conclusory assertions of mental illness or disability and consequent inability to care for oneself.

For example, in the current case, the original evidence consisted solely of affidavits – essentially in standard form – from a general medical practitioner and family caregivers that simply asserted that A.A. has Down syndrome and was “incapable of managing his own personal affairs and making decisions as related to his property and health care on his own behalf”, and required “constant care, supervision and control for the protection of his property and personal well-being.” [ 80 ] In D.(J.E.) v.

Eastern Regional Integrated Health Authority , 2016 NLCA 32 , a case involving an application for guardianship of the estate of a person alleged to be a mentally disabled adult, I expressed concern about use of pro forma or “conclusory standard form” applications and affidavits for the purpose of establishing the grounds for making a guardianship order because “there is no necessary congruence between having a diagnosed mental illness and an automatic inability to look after one’s own affairs” (at para. 7). [ 81 ] The same is true with respect to a mental disability as well as a mental illness.

Some mental disabilities are significantly more disabling then others. In the current case, where the identified disability is Down syndrome, it is well-known that this may cover a wide spectrum of disability with significantly varying (in some cases, minimal) impacts on daily living.

Thus, it is important, especially because of the important values of respect and autonomy that are at stake, for the Court to be presented with specific evidence and reasoned professional opinion from which an inferential conclusion can be drawn by the Court , that the nature of the disability is such that protective intervention, in the form of a general guardianship order, is or is not required. The issue is very much case-specific. [ 82 ] In considering whether a guardianship order should be made, the Court should also give thought to whether guardianship is the

best way in the circumstances to provide the protection and assistance the person concerned needs. There may be other mechanisms that may be effective while at the same time being less restrictive of the ward’s decision-making rights. [ 83 ] By way of example, if it is a specific decision, such as a medical operation, that must be made, a general guardianship order may not be necessary. The person’s needs could be met by a specific authorization to the Public Trustee to execute the necessary consents, such as in Re A.M.S. and Re Jane Doe or by relying on the substitute decision-making provisions in

section 10 of the Advance Health Care Directives Act . [ 84 ] The guardianship order ought to be reserved for situations not covered by other procedures or where long-term general care and decision-making or representational authority are needed to enable the person to function as a member of society on a day-to-day basis, such as, possibly in this case, where, amongst other things, access to A.A.’s health information and records is needed to ensure that he gets proper and timely general care or where it is necessary to provide personal information to a public authority or to a service provider in order to facilitate access to a program or service. 2.

Notice and an Opportunity to Respond [ 85 ] Because of the implications of a guardianship order on the values of respect and autonomy, and because each application is case- specific, fairness to the person who is the subject of the application may well require notice to that person and the provision of an opportunity to challenge the making of the proposed order. As was said in D.(J.E.) in the context of guardianship of an estate, “as a matter of principle, a person should not have her ability to deal with her own property and assets stripped from her without being able to be heard in opposition” (at para. 3).

So also should it be with respect to the removal of personal autonomy by an order for guardianship of the person. [ 86 ] If notice is not given in a particular case, a full explanation and justification as to why it was considered inappropriate or unnecessary to do so should be given in the application materials. [ 87 ] It may well be, of course, that the nature of the disability is such that it is obvious that the person affected will not be able to respond in any meaningful way to the application.

Depending on the nature of the issues presented, the Court might give consideration to appointment of a neutral person, such as the Public Trustee to act as guardian ad litem for the person affected ( Re Jane Doe ), or to the appointment of an amicus curiae ( Re A.M.S. ), where there is an issue that requires proper examination before reaching a conclusion that guardianship is indicated. 3.

Scope of Guardianship [ 88 ] The traditional form of guardianship order conferred full authority on the guardian to make all personal decisions relating to the ward, with the ward consequently losing all legal capacity to act on his or her own behalf.

Full guardianship would therefore include, but not be limited to, decision-making authority in respect of such matters as: living and travel arrangements; obtaining access to health and other personal information and records and giving consent with respect to use of such records; consenting to medical treatment; making general decisions about the ward’s health care, nutrition, hygiene, employment, training and education; arranging for provision of social services to the ward; and acting as litigation guardian and settling claims. [ 89 ] Sometimes, however, this “all or nothing” approach could amount to overkill, resulting in the stripping of individual autonomy in some areas regardless of whether the ward’s needs required it.

In such a case, it would be left to the discretion of the guardian as to whether to leave certain decisions for the ward to make, based on the guardian’s assessment of the ward’s abilities. But the guardian would not be legally required to do this. [ 90 ] Because there are many types of disabilities or disabling illnesses and because such disabilities or illnesses may have differing impacts on various aspects of a person’s life, human functioning can be seen as a spectrum of abilities and disabilities.

There may well be circumstances, therefore, where decision-making in specific areas need not have to be overseen by a guardian while other areas would require oversight. For example, a person may be able to make simple day-to-day life choices about nutrition and hygiene and it is only in respect of more long-term matters such as management of health care or the making of significant health care decisions where the role of a guardian may be appropriate. In such cases, a guardianship order could be limited to the needed areas (provided they could be clearly identified), leaving autonomy for other things.

Furthermore, it is possible that a guardianship order could be limited in time, if the individual circumstances justified this. [ 91 ] In other words, the scope of the guardianship order should be related to the extent of the disability and the needs of the individual. This would be more consistent with the principle underlying guardianship which is that guardianship is only justified where it is necessary for the protection of the person for whose benefit it is exercised ( Re Eve , per La Forest J. at 427). [ 92 ] There is, therefore, a role for a partial or limited guardianship order.

Such an order, listing only specific powers over which the guardian has authority, could be said to better “respect the adult’s autonomy, encourage independent decision-making and potentially aid the adult in regaining functional capacity” (Sarah Burningham, “Developments in Canadian Adult Guardianship and Co-Decision- Making Law” (2009), 18 Dal J. Leg. Stud. 119 at 121-122). Most jurisdictions in Canada now provide for partial guardianship by statute (Burningham at 122).

The fact that Newfoundland and Labrador does not specifically recognize it does not in my view preclude the Court, once it has recognized a broad general jurisdiction to make orders for guardianship of the person, from making a partial guardianship order in appropriate circumstances. [ 93 ] In like manner, there may be certain decisions that are so fundamental and have such serious implications that a guardian should not, as matter of course, have the authority to make them unless specifically sanctioned by the Court.

The giving of “Do Not Resuscitate” directions, arranging for forced sterilization and donor organ transplants come to mind as possible considerations in some cases. (I would observe in passing that decisions respecting assisted dying would not in any event be able to be made except by the individual himself or herself because they must themselves be “capable of making decisions with respect to their health”: Criminal Code ,

section 241.2(1) (b)). [ 94 ] Since a guardianship order is general in nature and is prospective, it will not be possible to anticipate what sort of life-affecting

decisions, if any, might have to be made in the future. The Court should therefore carefully consider exempting out of any order providing for general guardianship of the person decisions of the type just mentioned, thereby requiring the guardian to return to court for specific authorization. In such cases, the observation of La Forest J. in Re Eve that “it is essential that the mentally incompetent have independent representation” (at 438), should be borne in mind. 4.

Choice of Guardian [ 95 ] It does not follow that the Court should necessarily appoint the applicant or the person proposed by the applicant as the guardian. Upon careful consideration, the proposed guardian may not be suitable by virtue of age, experience or background. There may be a conflict of interest. There may be difficult interpersonal relationships existing between the proposed guardian and other family members or the person subject to the order, that would potentially interfere with principled and efficient decision-making ( see Bishop v.

Adams where disagreements amongst family members influenced the choice of custodian, and P.H. v. Eastern Regional Integrated Health Authority at para. 100 , where concern over the impact on the mother-daughter relationship influenced a decision not to appoint the mother as guardian). [ 96 ] Regarding conflict of interest, consideration should also be given to whether guardians of the person and the estate should be the same or different persons. It is noted that in Re Lunacy of Elizabeth Foran, the same persons were appointed guardians of both the estate and the person.

Efficiency of decision-making and over-all life management should be balanced against the potential for inappropriate self-interested decision-making where a sole guardian of both estate and person might tend to benefit as potential beneficiary of the estate if he or she made decisions relative to care that were not in the best interests of the ward. That said, it must be recognized that, as a practical matter, many personal care decisions may involve monetary expenditure which have the potential for conflict between personal and property guardians.

Different points of view on given issues may lead to frustration of decision-making. [ 97 ] Where there is no appropriate person, the Public Trustee could be named guardian. The Public Trustee is the inheritor of much of the role of the former office of Registrar of the Supreme Court. Before the abolition of the office of Registrar, the Court had often appointed the Registrar to act in the name of the Court whenever the Court required the parens patriae jurisdiction to be exercised in the form of specific decision-making or performance of juridical acts.

For example, in Re A.M.S. , the Court appointed the Registrar to execute consents for specific medical treatment of a mentally disabled woman who was not able to make an appropriate decision for herself. In other cases, the Registrar has acted as guardian ad litem for persons suffering mental illness in order to facilitate litigation and settle claims. [ 98 ] Although the Public Trustee Act, 2009 , S.N.L. 2009, c. P-46.1 only specifically mentions acting as guardian of estates ( s. 4(2) (

d) and (e)), paragraph (

k) of section 4(2) authorizes the Public Trustee to: (

k) act in another capacity and do other acts, matters and things that the public trustee is authorized or required to do by order of a judge. [ 99 ] That is sufficient authority to enable the Court to appoint the Public Trustee guardian of the person in an appropriate case. 5. Number of Guardians [ 100 ] The Court is not limited to appointing a single guardian. Co-guardians are permitted ( Re Lunacy of Elizabeth Foran ). In most cases it might be simpler and productive of efficiency if only a single person were appointed.

Sometimes, however, the benefit of collective wisdom on decisions of life-importance may be valuable. Further, having more than one guardian might help with succession of office if one guardian were to die or otherwise become incapacitated. As well, guardians might have busy lives of their own and may from time to time be unavailable. There is a benefit to sharing responsibility among dedicated, responsible and caring family members.

It might be appropriate, however, to designate one co-guardian as principal guardian who would act as spokesperson for all of the guardians. [ 101 ] In the event of co-guardianship, it would have to be determined whether decisions could be taken by majority (if there were more than two) or whether they should always be unanimous. As well, a mechanism for resolving disputes or deadlocks (if there were only two) could be considered, perhaps along the lines of resolving disputes among co-trustees of property.

While it would always be possible for application for directions to be made to the Court, or to have one or more of the co-guardians removed, that could be time-consuming and costly. 6. Security [ 102 ] In Re Lunacy of Elizabeth Foran , the Court ordered that the grant of guardianship of the person and of the estate be supported by two sureties. It is not clear whether the security was to support both guardianship of the person and of the estate or just the estate. [ 103 ] It is common in m

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