A new law called the Adult Capacity and Decision-making Act came into effect on December 28 2017. It replaces the Incompetent Persons Act, which allowed the court to appoint a guardian for an adult. The new law allows the court to appoint a representative for an adult who does not have capacity to make their own decisions.
A representative may have legal responsibilities and duties related to one part, some or all aspects of the adult's finances, personal and health care. A representative may only make decisions the adult is unable to make themselves.
Get more information about the Adult Capacity and Decision-making Act, and about being a representative decision-maker for an adult at novascotia.ca/just/pto/adult-capacity-decision.asp
Adult Capacity and Decision-Making Act – the Nova Scotia law that allows a judge to appoint a representative for an adult who is not able to make their own decisions.
Adult – In Nova Scotia, the age of majority (adulthood) is 19.
Assessor – An assessor is a doctor or psychologist, and, with training, an occupational therapist, nurse, social worker, or other qualified health care professional.
Capacity assessment - testing by a health care professional (assessor) to find out if a person has the ability to make their own decisions
Capacity assessment report - A report prepared by a health professional (assessor) to explain whether an adult is able to make their own decisions. The report may also include information from other sources, like family and friends.
Representative - A person with legal authority to act for and make substitute decisions on behalf of another adult
Representation order - A Court order appointing a representative
Representation plan - A plan to manage the well-being and financial matters of an adult who cannot manage those matters for themselves.
What is adult representation?
Representation allows someone to be responsible for the personal and financial interests of an adult who is not able to make their own decisions. The person who applies for representation is called a representative. If an adult is unable to make significant health, personal care or financial decisions on their own, a family member or other caring person will sometimes apply to the court to be appointed as the adult's representative. Some people may refer to a representative as an adult guardian, delegate, or substitute decision maker, although these terms do not always have the same legal meaning.
The person for whom a representative is appointed is called an adult in need of representation. Only a judge can appoint a representative.
The law relating to adults who need a representative to help in decision-making used to be called the Incompetent Persons Act. The Incompetent Persons Act allowed the court to appoint an adult guardian. The Incompetent Persons Act has been replaced by the Adult Capacity and Decision-making Act, which took effect on December 28, 2017. The new law allows the court to make a representation order appointing a representative for an adult.
Guardianship orders made under the Incompetent Persons Act continue as representation orders. Guardians become representatives. Guardians now have the same duties and responsibilities as new representatives under the Adult Capacity and Decision-making Act.
Representation used to be called “guardianship”. This term has changed to encourage greater respect for adults who need help to manage their personal and financial interests.
A representative must use the least intrusive and least restrictive steps possible to help an adult in need of representation manage their affairs. This means that the representative must not interfere with the privacy and freedom of the adult in need of representation unless absolutely necessary.
Who is an adult in need of representation?
An adult in need of representation is any adult who does not have the capacity to make their own decisions. Examples of when this might happen are when a person:
- is in a coma following an accident
- has an illness such as Alzheimer’s disease or a psychiatric condition that affects their mental ability
- has a mental disability that prevents them from managing their affairs
- has a mental disability as the result of accident or injury.
This section only deals with the representative decision-making for adults. It does not talk about child guardianship. In Nova Scotia, an adult is anyone over the age of 19 (the age of majority). All adults in Nova Scotia are presumed to have capacity unless there is clear evidence to prove this is not the case.
What is capacity?
Capacity is the ability to understand information that is needed to make a decision and to understand the possible results of a decision. For example, for an adult to consent to medical treatment, they must understand the risks of either accepting or refusing treatment.
All adults are presumed to have capacity unless there is clear evidence to prove this is not the case. Adults have a right to make their own decisions. This includes the right to make decisions that friends or family might think are risky or unwise. This does not mean they do not have capacity to make their own decisions. A person may have different degrees of capacity at different times. For example, an adult may have capacity to understand and agree to a simple medical procedure such as getting a flu shot, but may lack the ability to understand and make a decision about a more complex medical procedure such as a surgery. Another example is someone who has the capacity to make medical decisions, but not decisions related to managing their finances.
The way that an adult communicates does not determine whether they have capacity. An adult may need help from a translator, interpreter, family member, friend, or technology to communicate their wishes. This does not mean that they are unable to understand information or make a decision.
Who appoints a representative?
A representative for an adult is appointed by a Supreme Court of Nova Scotia judge. Before appointing a representative, a judge will hold a hearing to decide if an adult has the capacity to manage their own affairs.
Who can be a representative?
Any adult may apply to be the representative for an adult in need of representation. A Court will only appoint a representative when a judge is satisfied that the adult is in need of representation, and that the proposed representative:
- agrees to be appointed
- will fulfill their duties under the Adult Capacity and Decision-making Act, including acting in the best interest of the adult in need of representation
- is suitable to act as the adult's representative.
Some factors a judge will look at In deciding whether a person is suitable to act as the adult's representative include: the adult's views and wishes; the relationship between the adult and the proposed representative where relevant to a representative's duties; circumstances that might make it harder for a judge to oversee whether a representative is fulfilling their duties.
A trust company or the Public Trustee may also be appointed as a representative. However, a trust company can only deal with a person’s finances.
For more information, contact the Public Trustee.
Can the Court appoint more than one representative?
A Court may appoint more than one representative to act together (jointly) or separately.
If two or more representatives are appointed to act together, then the representation order must include a way to resolve any disputes that might come up between the representatives when carrying out their duties.
Factors the court will consider to decide if a representative should be appointed
In deciding if a representative should be appointed, the court will consider:
- the wishes of the adult
- capacity assessment report
- any other evidence about the adult's capacity
- representation plan
- any Power of Attorney made by the adult
- any Personal Directive made by the adult
- the matters with which the adult may need help
- the value and type of property the adult owns
- any other evidence the Court considers relevant.
How do I apply to be a representative?
The legal process for appointing a representative is set out in the Adult Capacity and Decision-Making Act. A representation application takes time and is complicated and technical. If you want to apply to be a representative, it is a good idea to talk with a lawyer.
To be appointed as a representative, you must file an application with the Supreme Court of Nova Scotia. The forms you need are in the Nova Scotia Civil Procedure Rules, which are the court rules.
You must file:
- A Notice of Application in Chambers – Civil Procedure Form 5.03 (“chambers” means that you will have a shorter hearing instead of a complete trial)
- A Supporting Affidavit (a sworn or affirmed statement explaining why you believe the adult needs a representative) – Civil Procedure Form 39.08. See the Guide to Adult Representation for information about what to include in the Affidavit.
- A draft Order for the judge to sign if they agree to appoint you as representative – Civil Procedure Form 78.05
Instruction Sheets and forms are on the Nova Scotia Courts website at courts.ns.ca/supreme_court/nssc_forms.htm.
You must also provide the court with these supporting documents:
- A Brief (a letter to the court explaining why you believe the adult is in need of representation)
- A Capacity Assessment Report from a health professional (medical doctor, psychologist, other trained capacity assessor)
- A Representation Plan
- A vulnerable sector check (a background check completed by police)
Forms for a capacity assessment report and representation plan are available on the Public Trustee’s website novascotia.ca/just/pto/forms.asp under 'Adult Capacity and Decision-making'.
When you have prepared all of these documents, you must take them to the court to be issued. This means that the court stamps them to confirm they have been added to court records. An issued copy of the application documents will be returned to you and must be personally served (delivered in person) to the adult and anyone else who is a respondent on the Notice of Application. Once the application documents have been served, you must also complete an Affidavit of Service – Civil Procedure Form 31.05 and file it with the court as proof of service.
You also need to make sure a copy of the Notice of Application is sent to other interested person, including:
- The adult’s spouse, parents, children over 19, and siblings over 19
- A guardian for the adult appointed under the old Incompetent Persons Act
- An attorney for the adult appointed by a Power of Attorney
- A delegate for the adult appointed by a Personal Directive
- If the adult lives in a care facility such as a nursing home, the director of the facility.
The application documents must be delivered to these people at least 25 days before the date of the hearing. This does not include the day when the documents are delivered or sent, the day of the hearing, weekends, or holidays.
If you are concerned that someone on the above list should not be given notice of the application ahead of time, you may ask the court for permission not to notify them. This request should be made to the court when you file the application.
If the adult or any other person who might be affected by the application does not agree with your application, they may file a Notice of Contest (Form 5.04) with the court.
Who can do a capacity assessment report?
A Capacity Assessment Report can be prepared by a medical doctor or registered psychologist. They can also be prepared by nurse practitioners or registered nurses, occupational therapists, and social workers, after completing specific training. This training will be developed in 2018 by the Public Trustee’s office.
What can a representative do?
A representative may only do the things described in the representation order and in the court-approved representation plan. For example, a representation order may give a representative authority to make only a single decision on behalf of the adult, or the order might cover a number of decisions. The representative can only make decisions for the adult that the adult cannot make for themselves. A representative may have authority to manage finances, make health and personal care decisions for the adult in need of representation. An example of personal care decisions is which social activities an adult in need of representation will attend, or if the adult works, where and what type of work the adult will do.
A representative must:
- act in good faith
- not make secret profits
- not delegate authority to another person
- not act for their own benefit or the benefit of anyone other than the adult.
A representative must not:
- sell or give away real estate belonging to an adult in need of representation without a court order
- make or change the adult's will
- start a divorce or change parenting arrangements
- give away anything that belongs to the adult in need of representation. One exception is that representatives may give gifts to the adult’s loved ones out of the adult’s property if the court agrees
- make a decision which the representative knows or has good reason to believe the adult could make on their own.
What are some of the representative's key responsibilities?
A representative must:
- always act in the adult's best interests
- make decisions in the least restrictive and least intrusive way
- tell the adult about any decision they need to make or have made on the adult’s behalf
- encourage the adult to make decisions whenever possible
- follow the wishes of the adult whenever possible, and
- respect the adult’s beliefs and values.
A representative must keep good records of all financial matters. If the representation ends for any reason, the representative must provide those records to the court. The court may also order the representative to produce those records or report to the court at any time.
Representatives must always protect the adult's privacy and personal information.
If a representative believes the adult’s ability to make decisions has changed the representative must have the adult’s capacity reassessed. A representative must apply to court to have the representation order reviewed if the adult's ability to make decisions changes.
The Nova Scotia government has a Guide to Applying for a Review of a Guardianship Order or a Representation Order. It is on the NS Public Trustee website.
What rights does an adult in need of representation have?
The starting point is that all adults have the ability to make their own decisions (capacity), unless there is clear evidence to prove this is not the case.
Adults have the right to:
- make their own decisions
- make decisions others might see as risky or unwise
- communicate in whatever way that makes us understood. The way we communicate does not matter in terms of whether we are able to make our own decisions.
The law says that an adult must be offered the least restrictive and least intrusive options before a representation order is granted. For example, this means that an adult should be offered support so they can make their own decisions whenever possible. All adults have the right to use whatever support they need to communicate or make decisions. This might include using an interpreter or having help from a friend, family member, or other support person.
Adults who are the subject of a representation application have the right to be represented by a lawyer. If they cannot afford to hire a lawyer, they can apply to Nova Scotia Legal Aid, or call Legal Aid at 1-877-420-6578. The adult has the right to speak to the court, be there at the court hearing, and submit paperwork to the court. If the adult who is the subject of the application does not agree with the court’s decision, they can appeal the decision at the Nova Scotia Court of Appeal.
Adults in need of representation have the right to apply for review of the representation order if there is a change in their ability to make decisions.
Do I have to cooperate with an assessment?
If an adult refuses to be assessed or decides to end an assessment in progress, the health professional must stop the assessment and notify the person applying for representation that the adult has decided not to be assessed. Only a court can order a person to participate in an assessment if they refuse to cooperate. Family members and friends cannot make an adult cooperate with an assessment.
However, if a health professional who has been trained as an assessor believes that an adult may be in need of representation, the health professional may prepare an assessment without the adult’s cooperation if information is available from other sources like family and friends. The health professional can request the adult’s personal health information from other sources even if the adult does not consent to the assessment. If the assessor believes that financial information is necessary to prepare the assessment report, the person applying to be a representative must ask the court for permission to access that information.
When a capacity assessment is done, the assessor must tell the adult the results of the assessment, and offer the adult a copy of the report.
How does representation end?
Representation ends when the adult in need of representation dies or regains capacity to make their own decisions. A judge may end representation if the representative is unable to carry out their duties because they:
- are not fulfilling their responsibilities satisfactorily
- have a mental or physical disability
- move out of the province permanently
- resign; or
If a representative dies, becomes incapable, refuses to act, or is unable to act for any reason, the judge will appoint a new representative if the adult is still in need of representation. If there is no alternate representative able and willing to act, the Public Trustee may act as representative until another representative is appointed.
If a representative wants to resign, they must apply to court to ask to be removed from the representation order.
What if an adult does not need a representative anymore?
If an adult regains the ability to make decisions, they can apply to the court to have the representative removed. If an adult regains capacity, the representative has the responsibility to apply to court to ask the court to review the representation order and to tell the court of the change in the adult’s capacity. If the review is successful, the representative must provide financial records to the Court and return all possessions to the person who has regained capacity.
When should I ask the court to review a representation order or an older guardianship order?
Anyone who has concerns about a guardian, representative, or adult in need of representation can apply to the Supreme Court of Nova Scotia for a review hearing. This includes a person who has been appointed as a guardian or representative, the adult in need of representation, family members, and friends.
Some examples of when you should ask the court for review include:
- If you were appointed as a guardian or representative for an adult and you believe the adult can make some or all of their own decisions
- If you have a guardian or representative appointed to make decisions for you, but you can make some or all decisions for yourself
- If the court ordered you to return for a review after a certain length of time.
For more information, see the Guide to Applying for a Review of a Guardianship Order or a Representation Order on the NS Public Trustee website.
What does a representation application cost?
A lawyer’s fee to prepare a representation application and appear in court will likely be in the range of $5,000 - $6,000, although some lawyers may charge more or less. You can also contact Nova Scotia Legal Aid to see if you qualify for free legal help.
Court filing fee
The cost of filing an Application with the Supreme Court of NS is $246.80 (December 2017). This includes tax and the cost of having the document issued (stamped) by the court.
If anyone other than the Public Trustee’s Office is appointed as a representative, that person must pay a bond (collateral) to the Supreme Court, to be held in trust. This is done so that the adult in need of representation is protected financially if the representative mismanages the adult’s money or property. The bond will be equal to 1 ¼ times the value of any property the representative has control over.
If you cannot afford to pay the bond, you can get a guarantor or co-signer to help you pay the bond. This could be another friend or family member, or a surety company. The court may not require you to pay the bond if you are not granted authority over the adult’s financial matters, if there are other safety measures in place to protect the adult, or if the value of the adult’s property is less than $3,000.
Vulnerable sector check
The cost of applying for a criminal record check/vulnerable sector check from the Halifax Regional Police is $50. Contact your local police or RCMP detachment for information.
Most health professionals will charge a fee to conduct a capacity assessment.
A person applying for a representation order may apply to the Public Trustee’s office for help paying some or all of the costs of a capacity assessment if they can show that it would be a financial hardship for the adult or themselves to pay for it. The government may pay a maximum of $500 for an assessment for personal care or financial matters, or $700 for an assessment of both personal care and financial matters.
Do representatives get paid?
Representatives may be reimbursed for their out-of-pocket expenses related to carrying out their duty as representative. This reimbursement is paid out of the money or property of the adult in need of representation.
A representative may also ask the court to approve taking a fee from the adult’s money or property, although no compensation may be taken from government benefits or support paid to the adult. This request to the court should be included in the representation application. The maximum compensation that a court may order for managing health care or personal care matters is $15/hour. For managing financial matters, the court may allow a representative to receive up to 2.5% of money received by the adult during the time the representative is appointed.
Can I manage an adult’s finances without applying to be a representative?
Yes. Sometimes when a person becomes incapable of making their own decisions, someone else will be able to help them. This is usually done by a spouse, child, other close family member, or even a close friend.
Informal arrangements work for many people, but there can be problems if the person has real estate or financial assets that need to be managed. For example, in an informal arrangement, you will not be able to deal with investments unless the person has appointed you as attorney in an enduring power of attorney. For more information, see the section on Powers of Attorney.
Can I make decisions about my finances and personal care before I need a representative?
Yes. While you still have capacity to make decisions, you can arrange for someone to manage your financial affairs. This legal document is called an Enduring Power of Attorney.
You can also arrange for someone to manage your health and personal care if you lose capacity and are unable to make your own decisions. This legal document is called a Personal Directive.
Complaints or concerns about a representative
Any interested person, including the adult can make a complaint to the Public Trustee if they are concerned that a representative is not doing their job right. Anyone can also complain to the Public Trustee if they are concerned about the decisions of a guardian under the Incompetent Persons Act. The Public Trustee will investigate the complaint and may refer the matter to other agencies if their services are needed, such as police or the Department of Community Services.
Anyone who has concerns about a representative may also apply to court to have a representation order reviewed. See the Nova Scotia government's Applying for a Review guide for more information.