Two arms of the Yukon government duked it out in the Supreme Court on Friday over whether the territory should continue to make decisions for a 65-year-old Old Crow resident with the mental capacity of a five-year-old.
It was a “precedent setting decision,” said Justice Leigh Gower, who heard the case. He ruled that the government still has a responsibility to the person, whose identity cannot be disclosed because of a publication ban. Because of complications revealed during the hearing over the power of a guardian, he also recommended an amendment to the Decision Making, Support and Protection to Adults Act.
The Office of the Public Guardian and Trustee, which falls under the Justice Department, argued that the Old Crow resident no longer needs the guidance of a public guardian. It’s too “intrusive” to continue to have a guardian in the person’s life, and it is in the person’s best interest to be on their own, said Judith Hartling, a government lawyer who represented the public guardianship office in court.
The guardian helped the Old Crow resident make financial decisions – and now that the adult no longer has any money, there is “very little” the guardian can do, said Hartling. The person’s family, First Nation and workers with the Fetal Alcohol Syndrome Society of the Yukon have also provided support, which is what the person needs most, said Hartling.
A Supreme Court order in 2010 assigned a guardian to the adult, after an accessibility assessment by an occupational therapist found severe cognitive impairments and disabilities. The adult was assessed as needing help in all four areas in which a guardian can help make decisions: personal, legal, financial and health matters.
Norah Mooney, a private lawyer who represented the Department of Health and Social Services, argued that the adult was extremely vulnerable – and still is.
The adult needs help when making financial decisions, said Mooney, as the person works and receives income tax returns. Mooney also highlighted an important time that the guardian stepped in, signing a consent form on the adult’s behalf to obtain much-needed medical records.
Although the adult has more supports now than in 2010, no one has stepped forward to be an official guardian, said Mooney.
Gower agreed. There was no suggestion of a replacement guardian and there would need to be more evidence to appoint one, he said.
The adult wouldn’t always follow the recommendations of the guardian. Of particular concern was how the Old Crow resident would fly from the remote community to Whitehorse, which was a problem because the person would get drunk in the city.
The guardian said she asked the airline to prevent the individual from boarding flights to Whitehorse. But the company argued that the person was an adult.
Gower compared the situation to a five-year old who wanted to travel on their own, and that a guardian should be able to enforce that.
He was not satisfied with Hartling’s submissions. Because of the 2010 court order, it is the responsibility of the guardianship office to prove that the person’s circumstances have actually improved in order to remove the guardian.
Gower also said that it would have been “helpful” if the office provided a current assessment of the adult to prove a guardian is no longer needed. Hartling admitted the 2010 assessment indicated it was a permanent assessment.
Doctor Christine Loock, a Vancouver-based doctor who specializes in congenital conditions and developmental disorders, echoed Gower on the importance of an assessment, speaking during an interview after the court dispute.
“You don’t chronologically outgrow your cognitive disability. It’s permanent,” she said. “You don’t age out of the need (for support),” Loock added.
“I would implore and encourage (the guardianship office office) to pursue more protocols,” Gower said about the office’s confusion with what authority it has. To further protect people with mental disabilities from harming themselves by being able to travel alone, he recommended an amendment to the law.
He asked Mooney to come up with the final wording, but he suggested it should allow the guardian to “permit or restrict travel within the Yukon territory or elsewhere.”
Currently, the office has assigned a guardian to 16 adults in the territory. Most of them need help with financial and legal decisions, said Lesley McCullough, a spokesperson for the Justice Department.
Mike McCann, the executive director of the Fetal Alcohol Syndrome Society of the Yukon, lauded Gower’s decision. Currently, the non-profit handles around five people who have been assessed with needing a guardian, he said.
“Maybe this court case is a good thing for them (the guardians) because they got clear direction of the scope of their responsibility under the (adult protections) act.”
Contact Krystle Alarcon at