Adult representation

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.

Representation allows someone to be responsible for the personal and financial interests of an adult who is not able to make some or all of 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,  another adult, such as a family member or other caring person, can apply to the court to be appointed as the adult's representative. Some people may refer to a representative as an adult guardian, attorney, 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 was replaced by the Adult Capacity and Decision-making Act on December 28, 2017.  The Adult Capacity and Decision-making Act 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, and 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 more than is absolutely necessary, and must consult with the adult before making decisions and keep them informed.

A representative is a person who has the legal right to make decisions for another adult. A judge appoints a representative for an adult who does not have capacity to make some or all decisions. The judge also approves a representation order and a representation plan. These tell what decisions the representative can make and what actions they can take for the adult. 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.

A representative can only make decisions for the adult that the adult cannot make for themselves. A representative may have authority to manage finances or to make health and other personal care decisions for the adult in need of representation. One example of a personal care decision is what social activities the adult will take part in. If the adult works, a personal care decision could be where and what type of work the adult will do.

A representative must:

• encourage the adult to make decisions whenever possible
• follow the adult’s prior instructions whenever possible
• follow the wishes of the adult whenever possible
• respect the adult’s beliefs and values
• only make decisions for the adult that the adult cannot make for themselves
• tell the adult about any decision they need to make or have made on the adult’s behalf
• protect the adult’s well-being and financial interests in any decision they make on the adult’s behalf
• act in good faith, and
• always make the least restrictive and least intrusive decisions possible.

A representative must not:

• make a decision the adult could make on their own
• make secret profits
• delegate authority to another person
• act for the benefit of anyone other than the adult
• sell or give away real estate belonging to the adult without a court order
• make or change the adult’s will
• start a divorce or change parenting arrangements, parenting time, contact or interactions with a child without a court order
• agree to adoption or guardianship of a child without a court order
• agree to tissue donation from the adult without a court order
• agree to a treatment, procedure or therapy that uses aversive stimulus without a court order
• give away anything that belongs to the adult
• represent themselves as the adult in any communication.

A representative may give gifts to the adult’s loved ones out of the adult’s property only if the court agrees.

A representative must keep good records of all financial decisions. If the representation ends for any reason, the representative must give the court records about financial decisions. The judge can order the representative to give those records or report to the court at any time.

Representatives must always protect the adult’s privacy and personal information.

A representative who thinks the adult’s ability to make decisions has changed must have the adult’s capacity reassessed and 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.

An adult may need a representative if they do not have the capacity to make some or all of their own decisions. The lack of capacity may be temporary or permanent.  This might happen when a person:

• is in a coma after an accident
• has an illness like Alzheimer’s disease
• has a mental disability that stops them from managing their lives
• has a mental disability as the result of accident or injury.

See the Nova Scotia government’s Guide to Adult Representation, under 'Is Representation the Best Option', for information about some things to consider in deciding whether a representation order is needed. The guide is on the NS Public Trustee website at novascotia.ca/just/pto/adult-capacity-decision.asp

The court cannot appoint a representative for any area already covered by a current, valid personal directive or enduring power of attorney. See the pages on Health Care Treatment and Consent and Power of Attorney for more information.

Capacity is the ability to do or understand something. In decision-making, capacity means you can understand:

• the information needed to make a decision, and
• what could happen because of a decision.

For example, you have capacity to agree to medical treatment only if you understand how the treatment could be good for you or bad for you.

All adults are presumed to have capacity 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. Just because someone made a bad decision, or decisions others might disagree with, does not mean they do not have capacity to make their own decisions.

A person can have different capacity at different times.

For example, you might be able to understand and make decisions about your health care, but not decisions about your money or property.

The way an adult communicates does not tell people whether they have capacity. You may need help from a translator, interpreter, family member, friend, or technology to tell people about your wishes. This does not mean that you cannot understand information or make decisions.

You can find this information, and more in The Legal Information Society of Nova Scotia’s book, It’s In Your Hands. For the chapter Adult Capacity and Decision Making, click here. 

A representative for an adult is appointed by a judge of the Supreme Court of Nova Scotia. The judge will hold a hearing to decide if the adult has the capacity to make important decisions for themselves.

When deciding if a representative should be appointed, the court will consider:

• the adult's wishes
• a capacity assessment report
• any other evidence about the adult's capacity
• a representation plan
• any power of attorney made by the adult
• any Personal Directive made by the adult
• the areas where the adult may need help
• the value and type of property the adult owns
• any other evidence the court thinks is important.

Any adult can apply to be the representative decision maker for an adult who does not have capacity to make important decisions on their own. A court will appoint a representative only when a judge is sure that the adult needs one because they do not have capacity to make certain decisions, and that the proposed representative:

• agrees to be appointed
• will fulfill their duties under the Adult Capacity and Decision-making Act, and
• is suitable to act as the adult's representative.

The judge will also think about:

• the adult's views and wishes
• the relationship between the adult and the proposed representative where relevant to a representative's duties
• things that might make it harder for a judge to oversee a representation order, such as if a proposed representative lives outside Nova Scotia
• the proposed representative's ability to carry out their responsibilities
• anything else the judge feels is relevant.

The court can appoint a trust company or the Nova Scotia Public Trustee as a representative. A trust company can only deal with a person’s finances. For more information, contact the Office of the Public Trustee.

A court may appoint more than one representative to share the responsibility (jointly) or to have separate responsibilities for decision-making. 

If two or more representatives are appointed to act together, the representation order must include a way to resolve any disputes that might come up between the representatives when carrying out their duties.

Where the representatives act jointly and one of them is no longer able to carry out their responsibilities, the remaining representative alone can continue to carry out their full responsibilities. 

The Nova Scotia government has a Guide to Adult Representation  that gives information on applying to become a representative.  It is on the Nova Scotia Public Trustee website.

It is important to know whether the adult has an enduring Power of Attorney and/or Personal Directive in place.  If those documents are in place a representation order may not be needed.

If you have chosen to become a representative for an adult, you will need to apply to the Supreme Court of Nova Scotia.  The process takes time and is technical.  It is a good idea to talk with a lawyer, even for a short time.

You must fill out several forms to apply to be a representative. You must file the forms with the Supreme Court of Nova Scotia.  The forms you need are listed below.  You can get them from the Supreme Court of Nova Scotia, or online at courts.ns.ca, in the Nova Scotia Civil Procedure Rules, which are the rules about forms and processes used at the Supreme Court of Nova Scotia.  

You must file:

1. A Notice of Application in Chambers – Civil Procedure Form 5.03 , under Rule 5.03 (“Chambers” is where judges have shorter hearings)
2. A Supporting Affidavit (a sworn or affirmed statement explaining why you believe the adult needs a representative) – Civil Procedure Form 39.08, under Rule 39.08.  See the Guide to Adult Representation for information about what to include in the affidavit.
3. A draft order for the judge to sign if they agree to appoint you as representative – Civil Procedure Form 78.05, under Rule 78.05

Instruction Sheets are on the Nova Scotia Courts website at courts.ns.ca/supreme_court/nssc_forms.htm.

You must also give the court these documents:

1. A letter to the court explaining why you believe the adult needs a representative (sometimes called “a brief” or a “written submission”)
2. A capacity assessment report from an approved health professional (medical doctor, psychologist, other trained capacity assessor) unless the adult in need of representation has refused or is unable to undergo an assessment
3. A representation plan
4. A vulnerable sector check (a background check completed by police)

You can find the forms for a capacity assessment report and representation plan on the Public Trustee’s website novascotia.ca/just/pto/forms.asp under Adult Capacity and Decision-making.

When you have filled out all of these documents,  take them to the court to be filed and issued. This means that the court stamps them to show that they have been added to court records. You must file enough copies of each of the documents to serve each of the respondents with their own copy, as well as two copies for the court. The court will give you an issued copy of the application documents.  The documents must then be personally served (delivered in person) to the adult and anyone else who is a respondent (named in) on the Notice of Application. Once the application documents have been served, you, or the person who served the documents, must fill out an Affidavit of Service – Civil Procedure Form 31.05 under Rule 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 persons, including:

• the adult’s spouse, parents, children 19 or over, and siblings 19 or over
• a person appointed to make decisions for the adult under the old Incompetent Persons Act
• a delegate for the adult appointed by a personal directive
• an attorney for the adult appointed by a power of attorney
• the director of a care facility, such as a nursing home, if the adult lives in one.

You must deliver the application documents to these people at least 25 business days before the date of the hearing. Remember to allow for the day when the documents are delivered or sent, the day of the hearing, weekends and 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. You should ask the court about it when you file the application.

The adult or any other person who might be affected by the application may not agree with your application.  If they do not agree they may file a Notice of Contest (Chambers Application) with the court (Form 5.04 for Contesting an Application on Notice in Chambers, under Rule 5.04).

Going to court nearly always involves costs.  These are listed below.

Legal fees

A lawyer will charge a fee to prepare a representation application and appear in court.  This work will likely cost $5,000 to $6,000.  Some lawyers may charge more or less. You can also contact Nova Scotia Legal Aid to see if you qualify for free legal help.  You can apply to court without a lawyer if you choose to or cannot pay a lawyer.

Court filing fee

It will cost $246.80 (March 2023) to file an Application with the Supreme Court of Nova Scotia. This includes tax and the cost of having the document issued (stamped) by the court.

Bond

If you are appointed as a representative, you 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 you manage the adult’s money or property badly. The bond will be equal to 1.25 times the value of any property you have control over as representative.

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. You might not have 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 worth less than $3,000.  The court may want some other assurances that the adult’s financial interests will be protected if their financial situation changes. 

Vulnerable sector check

It costs about $50 to apply for a criminal record check/vulnerable sector check.  Contact your local police or RCMP detachment for information.

This check is only valid if it was done within two months of your court date. Be careful not to get it done too early or you may be required to get the check done again at your own expense. 

Capacity assessment

Most health professionals will charge a fee to do a capacity assessment report.

You may apply to the Public Trustee’s Office for help paying some or all of the costs of a capacity assessment.  You will have to show that it would be a financial hardship for the adult or you to pay for it. The Public Trustee's Office may pay up to $500 for an assessment for personal care or financial matters, or $700 for an assessment of both personal care and financial matters. The cost of the assessment might be higher than the amount available through the Public Trustee. Talk with the assessor about the total cost before they start. 

A capacity assessment report can be done by an approved health professional, including a medical doctor or registered psychologist. The list of approved assessors also includes nurse practitioners or registered nurses, occupational therapists, and social workers who have completed training developed by the Nova Scotia Public Trustee’s Office.  A list of approved assessors can be found here: https://novascotia.ca/just/pto/forms/Adult-Capacity-and-Decision-making-Act-Allied-Health-Roster.pdf, or contact the Nova Scotia Public Trustee's Office.

The Nova Scotia government has information for Adults who may Need Representation.  It is on the NS Public Trustee website.

In Nova Scotia all adults have the capacity to make their own decisions, unless there is clear proof that they cannot.

Adults have the right to:

• make their own decisions
• make decisions others might see as risky or unwise
• communicate in whatever way that makes them understood. 

An adult has the right to the least restrictive and least intrusive options. For example, an adult should be offered support so they can make their own decisions whenever possible. An adult has 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. 

An adult who is the subject of a representation application has the right to have 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. 

In court, the adult has the right to be at the court hearing, to speak to the judge, and to give information to the court. If the adult does not agree with the judge’s decision, they can appeal the decision at the Nova Scotia Court of Appeal.

An adult who needs a representative has the right to apply to the court to review the representation order if their ability to make decisions changes. For example, if an adult can again make their own decisions, they can apply to the court to have their representation order reviewed, and to ask to have their representative decision-maker removed.

An adult does not have to take part in a capacity assessment.

If the 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 the adult may need a representative, the health professional can assess the adult's ability to make decisions even without the adult's cooperation. The assessor can use information from other sources like family and friends. The assessor can also ask for the adult's personal health information. The assessor might need the adult's financial information to write the assessment report. If so, the person who is applying to be a representative must ask the court for permission to get that information.

When a capacity assessment is done, the assessor must tell the adult the results and give the adult a copy of the report.

Representation ends when something important changes for the adult who has a representative, or for the representative.

The adult may regain capacity. This means that they can make important decisions again. This could happen, for example, as they get better after a stroke.

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 finds a representation order is no longer needed, the representative must give financial records to the court and return all possessions to the adult who has regained capacity.

Representation can also end if the representative:

• stops acting as a good representative
• has a mental or physical disability
• moves out of the province permanently
• resigns as representative; or
• dies.

If a representative dies, can no longer act, or refuses to act, a judge will appoint a new representative if the adult still needs one. If there is no back-up representative who can act for the adult, the Public Trustee may act as representative until another can be appointed.

If a representative wants to resign, they must apply to court to ask to be removed from the representation order.

You may have concerns about a guardian, representative, or adult who has a representative decision-maker.  If you have, you can apply to the Supreme Court of Nova Scotia to ask a judge to review the representation order.

You can do this if you are an appointed guardian or representative, or an adult who has a representative, or a family member or a friend.

You can ask for a review if you are an adult with a guardian or representative, but you can make important decisions for yourself or believe that the representative is not doing their job right.

Some other reasons to ask the court for a review are:

• If you were appointed as a guardian or representative and you feel that the adult can make some or all their own decisions, or something else significant has changed in the adult's life
• If you were appointed as a guardian or representative and you are no longer able to do the job
• 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 Nova Scotia Public Trustee website.

You can complain to the Public Trustee if you think 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 look into the complaint and may refer the matter to other agencies, such as police or the Department of Community Services.

You can use an online form to make a Complaint Respecting a Representative on the Public Trustee's website, or call the Nova Scotia Public Trustee at 902-424-7760.

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.

As a representative, you may be paid for out-of-pocket costs related to carrying out your duties. This money comes from the money or property of the adult you represent.

You may also ask the court to approve taking a fee from the adult’s money or property. You should know that no pay may come from government benefits or support paid to the adult.

You must ask the court to include this compensation when you apply to become the adult’s representative. The court may order up to $15 per hour for managing health care or personal care matters. If you are managing financial matters, the court may allow you to receive up to 2.5 percent of money the adult gets (for example interest earned) while you are their representative.

Sometimes when a person can no longer make their own decisions, someone else will be able to help them. This person is usually a spouse, adult child, or other close family member, or even a close friend.

Informal arrangements work for many people, such as through a joint bank account where the adult and the person helping them are joint account holders. If there are social assistance payments to be managed, an adult may have a trustee assigned by the government Department responsible for those payments. 

If informal arrangements work, you do not have to go to court.

If the adult has real estate or financial assets that need to be managed, though, there can be problems.  For example, in an informal arrangement, you will not be able to deal with investments unless the person previously appointed you as attorney in an enduring power of attorney. For more information, see the section on Powers of Attorney.

Yes. While you 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 name someone to deal with the Canada Revenue Agency on your behalf.

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.

You can also name a representative to deal with the Canada Revenue Agency on your behalf. 

• Public Trustee
• Nova Scotia Legal Aid
• A lawyer in private practice who does estates work, including adult representation
• Contact the Legal Information Society of Nova Scotia.