Examining guardianship law’s effectiveness
Professor Doug Surtees has devoted much of his research work to elder and disability law. His latest project is combining those two interests and taking a deep look at guardianship orders to ensure that legislation surrounding the topic is achieving what it was intended to.
By Sarah TrefiakIn Saskatchewan, guardianship may be sought because an older individual has developed dementia, because an individual who does not have capacity has turned 18, or because a person has experienced a catastrophic event or illness.
“Guardianship law must balance interests such as providing individuals with the protection they need; maintaining as much of the person’s autonomy as possible; and not exposing individuals to unwarranted risk of financial or other abuse,” said Surtees, adding that guardianship is a topic that touches a large portion of the population at one or multiple points throughout their lifetime.
“Unless a person has created an Enduring Power of Attorney at a time when they did have capacity, the only other way for another to be able to make decisions for that person is to be appointed a guardian by the court,” explained Surtees. “My research is aimed at trying to determine if the courts are living up to the principle that the adult is to have the most effective and least restrictive form of support, and that guardianship orders do not take away any more of the adult’s rights than necessary for their protection.”
Surtees plans to analyze and compare recent guardianship orders—which provide information on a person’s age as well as specific powers granted to the guardian— to those issued a decade ago in order to identify weaknesses in the system. He plans to look at Saskatchewan orders specifically, but expects that his findings will mirror other provinces with similar legislation.
“Removing individuals’ rights is such an exceptional thing to do, that we have an obligation to evaluate whether we are doing the best we can.”