Anno Ctrimo rrttio Euz.ua:TUJE. c.5 CAP. i'.

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TENTATIVE PROPOSALS FOR

A GUARDIANSHIP ACT

PART I: PERSONAL GUARDIANSHIP

Law Reform Commission of Saskatchewan

Saskatoon, Saskatchewan

January, 1981

T he Law Reform Commi s s io n of Saskatchewan was establis hed by An Act to Establish a Lm�' Reform Commission proc laimed in Nove mber, 1973, a nd beg an funct ion i ng i n February o f 1974.

The Commi s sioner s a r e:

PROFESSOR RONALD C.C. CUMING, B . A. , LL. B . , LL . M. , CHAIRMAN

MR . GE ORGE J.D. TA YLOR , Q. C.

MS MARJORIE A . GERWING, B . A . , LL . B .

Kenneth P. R . Hodges i s th e Re s e ar ch D i r e ctor .

The L e ga l Rese a rc h O f f i c er s are Harr i s Win ebe rg and Mi chae l ,J. Fin ley . Th e Secretar i e s are S andra Ritc h i e and Pat Harasymch uk.

* * * * * * * * * * * * * * * * * * * * *

The LauJ Reform Commission Act.

6. T he commi s s ion sha ll take and k e ep und e r r ev i e w

a ll the law of th e province , inc ludi n g s ta tu -te law , c ommon law and jud i c i a l dec i s i on s , w i th a v i ew to i ts s ys temati c deve lopmen t and r e f o rm, includ i ng the codi f ic a tion , e limi n a ti o n

o f an omali e s , repeal o f obs ole te and unnec e s s ary enac tme nt s , . and gene r a lly t he s i mp l i f i c a tion and moderni zation o f

the law , . . . .

* * * * * * * * * * * * * * * * * * * * *

ISSN 0701- 694 8

N 0 T E * * * * * * *

T he s e pro po s a l s have been prepa r ed b y the r e s earc h

staf f o f the Co mmi ss ion and have bee n tentatively adopted by the C o mmi s s ione r s . It is the po l i cy of the Co mmi s s ion to s e ek publ ic r e spons e to its propo s a l s be f ore a final report i s prepa r e d for pre s entation to the Attorney General . Acco r di ng ly , t he C o mmi s s ion we lco me s co mments and c r i t ic i s ms .

Sub mi s sions shou l d be directed to :

Law Refo r m Co mmi s s ion o f Saskatchewan 122 T hi r d Avenue Nort h S a s katoon , Saskatchewan S 7K 2H 6

TE NTATIVE PROP OSALS FOR

A GUARDIA NSHIP ACT

PA RT I: PERSONAL GUARDIANSHIP

A N OTE T O T HE RE ADER

T he se tentat ive prop os al s di s c u s s mat te rs whi c h are o f i n t erest

not onl y to l awyer s , but a l so to many other peo pl e . For the

a s s i s tanc e of rea de r s who do not have l eg a l training , t he Appe n dix

contains a br i e f exp l anation o f c e rtain legal t e r mi nology us e d in

t he r eport , a note on footnot e s and citation s , and a l i s t of

abbreviations .

For more c o mplete information about t he s e top ic s , t he r e a der

mig ht con s u l t O s born , A Concise Law Dictionary, The Shorte r Oxford

Engli sh Dictionary, and Yogi s and C hr i s t i e , Le gal Writing and Re sea rch

Manual .

TABLE OF C ONTENT S

1 . Introduction 1

2 . The Pre s en t Law i n Sas ka tchewan • • • . . . • • . . . • . • . 3

3 . Tentative Pro pos a l s fo r a New Guardiansh i p Act • • • • . • • 1 1

4 . The Pro po s ed A c t • • • • . • • • . • • • • • . • . • • • • • 14

5 . Co rm:nen tar y . • • . . . . • • • . . . . . . . . . . . . . • • 2 4

6 . Cons equen t i a l A me nd ment o f The Marriage Ac t • • • • • • • • 34

A ppendix . • • . . . • . • . . . . • . . . . • • • . . • . • ( i )

1. INT RODUCT ION

Th is re po r t pre s ents t entative pro po s a ls for t he r e form o f The lfentally

Dirwrdered PeJ'sons Ac:t1

i nsofar as t he s e lec tion , appoin tme nt and a uth ority

o f per sonal guardians o f pe rs o ns who are u na bl e to take care o f the ms e lve s

2 a re co nce rned . The prob l e m of who wil l act a s pe rsona l gu ard i an when

there is no o ne wi+l i ng or suit able to act a s such is am ong the most

d if fi cu l t issues in mental r e tard ation a nd geri at ric c ar e. l'iTho

takes over c a r e and su perv i s ion u pon the ir death i s an agonizing problem

for the parent s o f a me nta lly reta rded chi ld . The pro bl em of p r ovid i ng

g uardiansh i p a s s i stance to the elderl y wi l l take on g reater imp or t an c e i f

the pro je c ted po pulation growth o f Sas katchewa n cit izens a9ed 6.5 and over

p rove s a ccurate . A s a r e cent Sas ka tchewa n r e port on services f or senior

c i t ize ns poi nted ou t:

T here are pat t e r ns u ni que to thi s province whi ch su9g e s t

th at th e elder ly wi ll become a n e ve n mor e prominent s e c t or of the popu la ti o n than th ey are now. 3

Saska t c h e wan has a h i gher rate o f g rowth a mo ng the elderlv than the r e s t. o f

the Cana dian provi nc e s , i t being e s t i mated that t he elderly wi ll se

12.896 of the po pulat ion by 1985.4

The Pro vinc i a l Gerontologist has i.ndicat.ed

1. R.S.S. 1978, c . M- 1 4 .

2. A lat e r r e port wi ll be con ce rn e d with the posit i on of propertv guardians

under the Act.

3. F-?epcrt of the J01:nt Mlnisterial Task Force on 8eY'v1:c:c:B ,r:askatoon and Rural Comr17'J.m:ty, Au9us t , 1978, at 40.

4.

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that a ging can be v iewed as a three stage proc es s , c o rres pondin g to a n eed

fo r v ery l itt l e c a re , inc reas ing c ommun ity-bas ed s erv ic es , and even tuall y,

so me fo rm o f ins t itut ion aliza tion for t he very old.5

Thes e proj ect ion s

ind icat e a s ign ificant n eed fo r , a nd sugg est important resul t s from, a

l ega l f ramework for perso na l gua rd ian ship .

5 . Ibid., at 30.

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2 . THE PRESENT LAW I N SASKATCHE WAN

6 The procedu r e s of the pres ent Act are cumb e rsome , i t s provi s ions

inadequate , and its l anguage archai c .

Probably the be st d ef i n i tion o f per sonal gua r diansh i p was d eveloped

by the I n ternational L e ague of Soc i e t i e s for the Me ntal ly Hand i c apped :

The te rm "gu a rd i an s hi p" re f e r s to a l eg al l y r ecogn i z ed re lati onshi p b et ween a s pec i f i e d c o mpetent adu l t and

another speci f i ed pe rson , the "ward " , who , bec a us e o f ... some s igni fi c ant degree o f ment a l d i s ab i l ity,

jud i c i a l ly ver i fied , i s c on s idered to lack legal

c apac i ty to exerc i s e some or all o f t he rights pertaining to adult s general ly in the country o f wh ich he is a c i ti z en. The guardi an i s spe c if i c a l ly charg e d w ith protecti ng h i s ward ' s inter e s t s and , for c e r t ain purpo s e s , ex erc is i ng e s s en ti a l right s on h i s beha lf . ?

E arly law iden t if ied "idiot s " and "luna t i cs " a s be i ng su bj e c t to the

c ustod i a l autho r i t y o f the C r own but only w here there was proper t y to manage .

B l ackstone iden t if i e d the guardiansh i p o f idiots and lunat i c s a s one branch

of the "King 's ordinary revenue "8

and d i s t ingui shed an i d io t f rom a lunat i c

i n the fol lo wing mann e r:

A man i s not an idiot , i f he h ath any g l imme r i ng o f reason . . • A lunat i c .. . i s o n e who hath had und e r s tand ing , but by d i s ea s e , g r ie f , or other acc ident hath lost the us e o f his reason . 9

6 . A bove , note 1.

7. I n t ernational League o f Soc i e t i e s for the Mental ly Hand ica pped, Symposium on riuardianship o.f the Men tally Re tm•ded: Conc�Z.usions. Brus s e l ls , B e lg i um: I LSMH, 1969.

8. B l ac k s tone , Commen taries on the LroJJs of England, (l Oth ed.) , 1787, Vo l . I , at 303 .

9. Tbid . , at 304.

- 4 -

With its roots in the King ' s revenue , the j ur isdiction matured into

a supervisory one exerc i sed by the courts as a " parental and protective

j ur isdiction for the benefit of the lunat i c " :10

. • • the King i s bound of common right and by the laws

to defend his subjects : their goods and chattels ,

lands and tenements , and by the law of thi s realm ,

every loyal subject i s taken to be within the King ' s

protection , for which reason it i s that idiots and

lunatics , who are incapable of taking care of them­

selves , are provided for by the King a s pater patriae, and there i s the same reason to extend thi s care to infants . l l

Saskatchewan enacted its first " lunacy " leg i slation in 1919.12

This

Act was model led on the Eng l i sh Lunacy Ac t13

of 1890 which amended and

consol i dated provi sions in earl ier lunacy Acts. Except that "lunati c s "

are now referred t o a s " mentally disordered pers ons " , The Mentally Disordered

Persona Act14

has remained virtual ly unchanged.

Proceedings under the Act are by petition15

to the Court o f Queen ' s

Bench which may

make orders for committing the custody of mentally

d i sordered persons and the management of their estate s . l6

10 . Theobald , The Law Relating to Lunacy , 1924 , at 4 .

11 . Eyre v . Countess of Shafteabury , [15 58- 17 7 4] All E . R . Rep. 129 at 134 .

12 . The Lunacy Act, 1919, s.s. 1918-19 , c . 58 .

13 . 5 3 & 5 4 Viet . , c . 5 .

14 . Above , not e 1 .

1 5 . Sask . Q.B. Rules (1961), R. 511.

16 . The Mentally Disordered Persona Act , above , note 1 , s . 3 .

- 5 -

17 The peti tion may be heard by a j udge of that court in chambers and may

be made by the Attorney General , by any one or more of the next of kin

of the alleged mentally disordered person , by his or her spouse , by a

18 creditor or by any other pers on. The petition mus t

(1) set forth the grounds o n wh i c h the application i s made ;

(2 ) state the relation or connection of the peti t ioner

to , or with , the alleged mentally d isordered person and his property and estate; and

(3 ) include a description and value of the same separating real and personal estate.l 9

A copy of the petition and notice of the intended application mus t b e served

on the a l leged mentally d isordered per son , unless such service i s d is pensed

20 with by the court. To obtain an order of the court di spen sing with such

service , i t would appear that evidence should be adduced to show that the

al leged mental ly d i sordered person would be gravely inj ured or his or her

2 1 condition seriou s ly aggravated by serving the document s. I f the court

is satisfied beyond a reasonable doubt , after receiving viva voce or

affidavit evidence ,2 2

that the person is mentally disordered , the cou r t may

17 . Ibid. , s.4 .

18 . Ibid. , s . 5 ( 2 ) .

19 . Rule 5 11; Re Cochran, (1965 ) 46 D.L.R. ( 2d ) 587 per D i sbery , J. ( Sask . Q . B . ) .

20 . Rule 513 ; In Re Bulger , (1911) 1 W. W. R. 248 ( Man . K . B . ).

2 1. Wright v . Wright , [1951] S . C . R . 7 28 .

2 2 . Rule 512.

- 6 -

declare the person to be mentally disqrdered.23

While the Rules of Court

do not state precisely what is required by way of medical or other

evidence as to mental condition, it seems that the affidavits of two

medical practitioners, as well as at least one of a friend or relative

h 11 d. . f h . d 24

w o can persona y depose to the con 1t1on o t e person are requ1re •

The affidavit of the doctor or lay person must include facts on which

the opinion is based so that the court will have some evidence on which

it can come to its own conclusion as to the mental condition of the alleged

mentally disordered person.

If there is any reasonable doubt about the alleged mental disorder on

the basis of such evidence, the court may direct that the issue of the

alleged mental disorder be the subject of a trial.25

The trial takes

1 h . d 1 h d. 26

d h . d p ace at sue t1me an p ace as t e court 1rects an t e pract1ce an

procedure as to the preparation, entry for trial and trial of the issue,

and all incidental proceedings, are the same as in the case of any other

issue directed by the court or a judge.27

On the trial of the issue, the alleged mentally disordered person, if

within the court's jurisdiction, must be produced and examined, either in

23. The Mentally DisoPdePed PePsons Act , above, note 1, s. 5(1) .

24. Weir, "Mental Incompetency Applications", Special Lectures of the Law Society of Upper Canada, 1963, at 19; In Re BulgeP , above, note 10; Re AVepY , [1952] 2 D . L . R . 413 (Ont. C. A. ) .

25. The Mentally DisoPdePed PePsons Act , above, note 1, s. 6(1) .

26. Ibid. , s. 6(3).

27. Ibid. , s. 6(6) .

- 7 -

open court or privately, and where the trial is with a jury, before the

jury retires to consider its verdict, unless the presiding judge dispenses

"th h d t• . . 28

w1 sue pro uc 1on or exam1nat1on. The court may require an alleged

mentally disordered person to attend and submit to examination by one o r

d. 1 . . 29 more me 1ca pract1t1oners.

The issue at the trial is confined to the question of whether or not

the alleged mentally disordered person is, at the time of the trial, of

unsound mind and incapable of looking after himself or herself or managing

his or her own affairs.30

The alleged mentally disordered person may

demand a jury to try the issue of his or her alleged mental disorder.31

That demand, however, may be overridden if the judge is satisfied by

personal examination that the person is not mentally competent to form

and express a wish for a jury tria1.32

An application may be made at any time after one year after the date

of an order declaring a person mentally disordered, or sooner with permission

of the court, for an order declaring that the person's sanity has been

restored and that the person is then capable of managing himself or herself or

his or her own affairs.33

The court may direct a trial of the issue of

28. Ibid. , s.6(4).

29. Ibid. 1 s.8(2).

30. Ibid. I s. 6(5) .

31. Ibid. 1 s.7.

32. Ibid.

33. Ibid. , s. 9(1) .

- 8 -

the restoration to sanity of a person formerly declared or adjudged mentally

disordered.34

An order may then be made superseding, vacating, and setting

aside the original order for all purposes except as to acts or things done

in respect of the person or estate of the mentally disordered person while

th d . f 35

e or er was �n orce.

The alleged mentally disordered person and any person aggrieved or

36 affected by an order under the Act may appeal such order.

An order committing the custody of a mentally disordered person takes

ff . d' 1 h d b . d 37

e ect �mme �ate y upon t e or er e�ng rna e.

Because the proceedings for a declaration or an adjudication of mental

disorder are cumbersome, expensive and highly stigmatic, the Act38

extends

the powers of a guardian relating to the management and administration of

estates to persons who are not mentally disordered but who, through mental

infirmity, arising from disease, age or other cause, or by reason of

habitual drunkenness or the use of drugs, are incapable of managing their

ff . 39 a a�rs. Thus, unless a declaration or an adjudication of mental disorder

is made, there does not appear to be authority for the court to appoint a

1 d. 40 persona guar �an.

34. Ibid. , s. 9(3) .

3 5 • Ibid. , s . 9 ( 5) •

3 6 • Ibid. , s • 5 ( 3) and 9 ( 2) •

37. Ibid. , s. 3.

38. Above, note 1.

39. Ibid. , s. 42(1) , first enacted in the 1890 Lunacy Act , above, note 13.

40. Re Burton , [1965] 1 O . R . 125 per Gale, C. J. H. C.

- 9 -

As l ong ago as 1924 , Sir Henry Theobald, in h i s clas si c work on the

law relating to lunacy , found it

remarkable that procedure by inqui s it ion , which

goe s back to very early times , should s till remain in full force by the s id e of a modern

procedure whi ch date s from the year 1 89o . 41

He found the procedure by inquis ition , analogous to our procedure by t r ia l ,

to be so expens ive a s to be " eminently for the wealthy " , whereas the

proc edure analogous to the present section 4 2 was " s imple , inexpens ive

and speedy " . While Theobald recommended a s u seful some amendment of the

law so a s to make it pos s ible to appoint a personal guardian in the c a s e

of a perso n neither dec lared nor adjudged mentally d isordered ,4 2

such

has not been the case .

I n summary , the Commi s s ion sees the following deficienc i e s in the

exis t ing law :

( i ) While there i s authority to appoint a

personal guardian for a mentally

di sordered person , there i s no such

authority in respect of a person ne ither

declared nor adjudged mentally d isordered ; and

( i i ) The notion that a person mus t b e "mentally disordered " before a personal guardian may

be appointed has outlived its u s efuln e s s

as a n indication for whom the law ouaht t o

provide personal guardians .

41 . Theobald , above , note 10 at 511.

4 2 . Ibid., at 5 1 3 .

- 10 -

Accordingly, the Commission has concluded that the law should be reformed

so as to permit the appointment of personal guardians, whether or not

property management is involved, for persons who are unable to take care

of themselves.

- 11 -

3 • TENTATIVE PROPOSALS FOR A NEW GUARDIANSHIP ACT

While mos t other Canadi an common law j ur i sdictions retain leg islation

43 for the mos t part akin , if not identical , to our pre s ent s tatut e , a

legi slative initiative in thi s area has been provided by the recently

adopted Alberta Dependent Adults Act44

which deals comprehensively with

personal guardianship . A study paper entitled " The Dependent Adults Act " ,

published by the Government of Alberta prior to the introduction of the

s tatut e , in making a plea for limited personal guardianship , make s the

following comment:

As our knowledge and unders tanding of the mentally

incapacitated adult increas e s , we are learning that

the needs of each of thes e individuals is unique and

that while some require total guardianship and

trusteesh ip , others require only some degree of e i ther

guardiansh ip or trusteesh ip . The court , in exerci sing

its extens ive j ur i sdiction and in delegating its

authority to a person to act as guardian or trustee ,

should be able to mee t the particular needs of the ward . The c ourt should be able to consider a partial

order of guardian ship or trusteesh ip when in the

opinion of the court , only c ertain matters relating

to the person or e s tate of the ward require the

protection of a guardian or a trustee .

The study paper suggests that any new legislation should conform to the

following principle s:

(1) that clear evidence mus t be e stabli shed s howing that an adult per son is mentally

43 . See: Patients Property Act , R . S . B . C . 197 9 , c . 3 13 ; The Mental Health Act , R . S . M . 197 0 , c . MllO , Part I I I , a s amended ; Infirm Persons Act , R . S . N . B . 197 3 , c . I- 8 , as amended ; The Mentally Incompetent Persons' Estates Act , R . S . N . 197 0 , c . 2 34 , a s amended ; Incompetent Persons Act , R . S . N . S . 1967 , c . l 3 5 , as amended; The Mental Incompetency Act , R . s . o . 1970 , c . 271 ;

Mental Health Act , R . S . P . E . I . 1974 , c . M- 9 , Part IV , as amended .

44. S . A . 197 6 , c . 63 , as amended .

- 12 -

incapacitated to the extent that the person

is in need of protection , and

(2) that no order should be pos sible unles s it i s clearly in the be st interes t s of the

individual , and

( 3) that any person to whom authority has been

delegated over another person shall be bound to act only in the best interests of that

other person , and should always be subj ect

to the review of the court .

Our tentative proposals rely heav ily on the tenor of the Alberta

legi slation. As well , we agree with the approach of opting for completely

new legi slation , being , as we are , of the opinion that mere " ti nkering"

with the pres ent legi slation will only provide " an inadequate r e sponse " to

45 the need for law reform.

In our proposed statute which follows , we have attempted to provide

an acc e s s ible , understandable and eff i cient legal framework , d ivorced from

traditional and historic dependence on property , for the appointment of

personal guardians for those persons who are unable to take care of

themselves. We are of the opinion that the law should provide an

opportunity for the appointment of a per sonal guardian apart f rom property

cons iderations.

Secondly , the law , if it is to be ef fective , must be of universal

appli cation providing , within the propos ed framework , for thos e who are

4 5 . McLaughlin , Guardianship of the Person, National Institute on Mental

Retardation , 1979, at 49 .

- 13 -

in need of personal guard ianship , but for whom there is no one to assume

that rol e .

Final ly , the superv i s ion and accountability of personal guardian s

being matters of the utmost importance i n deve loping a s cheme o f personal

guardianship for those who are unable to take care of themse lve s , we

propos e the estab l ishment of an ombudsman-l ike official to moni tor and

supervis e , subject to ultimate court autho rity , personal guardi ans in the

exer c i s e of their guardianship authority.

- 14 -

4. THE PROPOSED AC T

An A ct respecting Guardians �or Persons w ho lac k rapac i tv to t a ke c a re o f The mselve s.

Short Title

1. Thi s Ac t may be c ited as The Guardianship Act.

Definitions 2.

Jur>1:sdiction 3.

( a ) "app l ic an t " me ans a p e r s on w ho brings an app li c at i on

unde r t his Ac t; ( b) "court " means the C ou rt o f Quee n ' s Bench ; ( c ) "depa rtme n t " me ans the Department o f Soc ia l Servi ces; (d ) "m in i s t e r " means t he Mini s te r of Soc i a l Se rv i ce s ; (e) "of fi c ial repres enta tiv e" means the person appoin ted a s

such pursuan t to s e c t ion 17 o f th is A c t ;

(f) "pe r s on " inc lude s the o f f i c i a l repre sentative , t he min i s ter , or an y oth e r s oc ia l we l f are agency ;

(g) "pe rson a l gua rdi an" me an s the person n amed a s such in an o rde r of t he c ourt or a pe rson who i s c on s t i tu t ed such by ope r·ation o f t his Act ;

(h) "propo s e d ward " me an s th e per s on i n re s pe c t o f wh om an app l ication for the appointment o f a pe r s on a l gua rd ian i s made unde r thi s Ac t ;

( i ) "wa rd " me an s a p e rson in re spect of whom an o rder appointing a pe rs on a l guard i an has been made .

(l ) Th e c ourt may , on the app l i cation of a pe rson h av ing a suff ic i ent int e re st , make an orde r a ppointing a pe r s ona l gua rd ian for a

pe rson wh o lacks suff i ci e nt capaci ty to under s t an d the nature and appre c i at e the con s eque n c e s of de c i s i on s in res pec t of matte rs re lating to his o r he r p e r s on a l c a re and we l f a re and w ho is in need o f care or supervis i on .

(2) Whe re an app l ication is mad e un de r thi s s e c t i on t h e c ourt sha l l inqu i re a s t o

(a) the extent to wh i ch the proposed ward i s in need of a pe rs o n a l guardian a nd for t !lat pu rpos e sh a l l c ons i d er th e phys i c a l , psvcholog i ca l , emo t i on al, s oc ia l , med ic a l , resid ent i a l , voc a t ional, economic and other n eeds o f t he p ropose d ward ; a nd

( b ) th e w is h e s o f the proposed ward to th e e x tent that t he court conside rs appropr iate h a vin g reg ard to th e ca pacitv of th e proposed w ard .

Court may order a report

Procedure

- 15 -

4. ( 1) The cou rt may a ppoint a p erson to make an i nve s t i gat i on and

to p repa re a report on any or a l l of th e matte r s re f e r re d to in sect i on 3(2 ).

5.

( 2 ) The p ers on s o a p po in ted s ha l l pre pare and f i le a re port w i th

the court and the report shal l be avai l abl e to all partie s to the proceed ings .

(3 ) ( a ) Th e report sha l l b e admi s s ib le with out proof of the qua l i f i cat ion s of the pe r s on pre par ing the re port ; and

( b ) th e p erson who pr ep a r es the re port s ha l l b e a va i la ble

for cros s -ex ami nation on the motion of any pa rty to the proceed i ng s .

( 1) On an y appl icat ion pu rsua nt to th i s Act , t he app l i cant sha l l s e rve a c opy o f the app l i ca t i on on

( a ) the propos ed ward o r ward ;

( b ) the n e are st re lative o f the p ropos ed ward or ward ;

( c) th e propo s ed per s on a l gua rd i an or pe rson a l g uard i an i f h e or she i s n eith er the a pplicant nor the n ea rest

rela tive wh o is served pursu ant to clau s e ( b);

( d ) i f the p roposed w a rd o r ward i s a re s ident o f a faci l ity , the p e r s on i n cha rge of the fac i l i ty ;

( e ) th e off i ci a l repre sentat ive i f not t he applican t ;

( f ) an y t ru s t e � of the pro pe rty of the proposed ward or ward ; and

(g) s uch oth e r pe rs o n h aving an i nte res t in the cus to dy an d ca re o f t he propo s ed wa rd o r w a rd a s th e cou rt may cons i de r appropriate u nde r th e ci rcumst ance s .

Persons eUgible to aat as personal guardians

Authority of a personal guardian

- 16 -

(2) The court may

(a) dispense with service on all or any of the persons referred to in subsection (1), except the official representative, and subject to clause (b) , the proposed ward or ward or

(b) dispense with service on the proposed ward or ward if

(i) the official represenative consents, and

(ii) the court is satisfied that to do so would be in the best interests of the proposed ward or ward.

(3) The official representative shall have a right to intervene and make representations in any application or other proceeding under this Act.

� The court may appoint as a personal guardian any person eighteen years of age or older who is a resident of Saskatchewan.

7 . ( 1) Subject to subsection (3) , where the court makes an order appointing a personal guardian, the court shall specify whether or not all or any one or more of the following matters relating to the ward's personal care and welfare are to be subject to the authority of the personal guardian:

(a) where and with whom the ward is to live;

(b) whether or not the ward should work, and if so, the nature or type of work, for whom the ward is to work, and other related matters;

- 17 -

( c) wh eth e r or not t he ward shou ld take or parti c ipate in an y educatio nal , voc at iona l , or oth er t rain ing , a nd i f s o , the natu re and ext e n t of th at training and matters re lating to t hat t raining ;

( d) wh ether or n ot the ward s hou ld app l y for any l i cenc e , pe rmit , approval or oth e r cons ent or auth orizat ion re qu i red by law ;

( e ) t o sue or de f end an y l e ga l act ion on b eh a l f o f t h e ward and s e t t le any legal a c t i on on beha l f of t he ward w ith th e ap prova l o f th e Court ;

( f ) t o c on s e nt to any nec essa ry h e alth c are that i s in the ward 's bes t inte re s ts ;

( g ) t o mak e such normal day-to-d ay dec is ion s on behalf o f the ward , inc luding d i et a nd dr ess , a s a guardian wou ld reasonab l y be e xp ec ted to make in the bes t inter es t s o f the ward and that are not s pec i f ied o r referred to in th is suhsection.

(2) In mak in g an orde r appo in ti n g a pe rs on a l guardian , t h e cou rt ma y

(a ) make its orde r s u bie c t to su ch condit i on s and re s t ric t ions as it c on side rs nec e s s ary, a nd

( b ) re s t r ic t , modif y, chan ge or add to an y o f the matt e r s s pe c ifi e d or re fe rred to in sub s e c t ion ( l ) .

(3) Notwi ths tand ing anything in s ubs e c t i on ( l), the p e r s ona l guardi an sha l l not have , e xcept w ith a spe c if ic orde r o f

t he cou rt , t he aut ho r ity

( a ) to c on sent to vo lunt a ry committal of the ward under The Mental Health Act;

(b) to consent on beha l f of t he ward to an inter vivos tran s pl ant under The Human Tissue r:-1:[t Act;

( c ) to consent on beha l f of t he ward to a s t e r il iz a t ion exce pt where it is the treat ment for some pre s en t o r in evitab l e d i sease;

Civil liability

Incidental authority

Exercise 8. of the pel'sonal guardian's authority

- 18 -

(d) to consent on behalf bf the ward to a

therapeutic abortion except where the

continuation of the pregnancy of the

ward would or would be likely to

endanger her life or health;

(e) to consent on behalf of the ward to the

termination of the ward's parental rights;

or

(f) to interfere with the ward's exercise of religious practices except to the extent that those practices threaten the ward's health or estate.

(4) In making an order under either subsection (1) or (3) , the Court shall have regard to the provisions of section 3.

(5) No action or other proceeding for damages lies against any person for any act done in good faith and without negligence in the exercise or intended exercise of any authority conferred by this Act.

( 6 ) A guardian may do whatever is necessarily incidental in the exercise of any authority conferred by the Court pursuant to this section.

A personal guardian shall exercise the specific duties and powers assigned by the court diligently, in good faith and in a manner so as to

(a) ensure that the ward's civil and human rights are protected; and

(b) encourage the ward to

(i) participate to the maximum extent possible in all decisions affecting him or her; and

(ii) act for himself or herself in all matters

in which he or she is able to do so.

Maintenance

Access

Mandatory Review

Application .far review

- 19 -

9. The c ourt ma y make an order

( a) for the expen s e of sh e l t e ring , s u pport ing , a nd c aring for the war d ; and

( b ) s et t ing a fee for s e rv i c es rendered by the

pers on a l guard i an ,

b y payment from t im e to t im e out of the es ta t e and proper t y o f t h e ward .

10. In mak i ng an order a ppoint ing a pe r s on a l guard i an , the court

ma y prov ide for a c ce s s to the ward by s omeon e oth e r than the pe r s on appointed pers ona l gua rdian , h av ing r egard to the

bes t int e r e s t s o f the w ar d.

11. ( 1) Upon maki ng an order appo int ing a pers ona l gua rd ian, the

court sha l l s p ec i f y

( a ) the t ime w i th i n wh i c h the ord e r mus t b e r evi ewed bv the c ourt wh ich sha l l not b e

late r than five yea rs a fte r the dat e o f t h e order,

( b ) the pe rs on r e qu i red t o apply to the c ou r t f or the review , a nd

( c ) any re qu irement to be c ompl i e d with b y the pers ona l gua rd ian or an y oth e r pers on w i th r e spect t o a rev i e w o f the c i rc ums tanc e s of the ward .

(2) h�ere the per s on r e qu i red to app l y to the c ou r t

f o r the rev i e w pursuant t o sub se c t i on ( 1) ( b ) f a i l s t o do s o, the o ffi c ia l repres entat ive sha l l make the

applicat i on f or revi ew .

12. ( 1) The c ou rt ma y, at a n y t ime , on the appl icat i on o f the ward

or a pers on h avi n g a s u ffi c ient i nt e r e st , r ev i ew the

appo intme nt o r c ons t i t ut ion of a pers on a l gua rdian und e r

th i s Act a nd whe re there ha s b e e n a mat e r i a l change o f c ircums tanc es , ma y a l ter or v a r y t h e author ity o f the

per s ona l gua rd i an or d is char ge the pe r s on a l guardian .

Costs

Duty to report

13.

14.

Entry to 15. investi gate

- 20 -

(2) Before making an order discharging a personal guardian under subsection (1) the court shall be satisfied that,

where necessary,

(a) suitable arrangements have been or will be

made for the ward; or

(b) an application for another personal guardianship order will be made.

The court may order that the costs of any application or report

made to it pursuant to this Act be paid

(a) by the applicant; or

(b ) by the Crown; or

(c) out of the ward's estate and property;

or by any two or more of them.

(1) Everyone who has information that a person may be a person in respect of whom an order could be made under section 3 (1) shall report that information to the department or to a peace officer or to the official representative.

(2) A person who makes a report pursuant to subsection (1) is not liable in any action for making the report unless the report is false and is made maliciously or recklessly.

{3) A peace officer or the official representative when in receipt of information under subsection ( 1 ) shall forthwith report the information to the department.

(4) Any information received by the department under subsection (1) shall be reported forthwith to the official representative.

( 5 ) The department shall investigate reports pursuant to subsection (1) and shall file a copy of its report with the official representative.

{1) Where the department has been requested to investigate a complaint pursuant to section 14 (5) and is refused access to the person who is the subject of the complaint, an

application may be made to a justice of the peace or to

inister 16. �sonal ian

- 21 -

a provincial court judge for a warrant authorizing

the applicant to enter and search , by force if necessary , any premises o r other place specified

in the warrant in order to conduct an investigation.

( 2) The department , a peace officer , or the offic ial

representative , having reasonable and probable

grounds to believe that a person may be a person in

respect of whom an o rder could be ma4e under section

3(1) and that person ' s heal th or welfare i s in immediate

jeopardy , may enter without warrant into any premi s e s

for the purpos e o f taking custody o f that per son and

removing him or her to a place of safety and may without

warrant take custody of that per son and , where cons idere d necessary , remove h im or her to a place o f s afety .

(3) The department , a peace officer , or the official repre sentative,

having reasonable and probable grounds to believe that a

personal guard ian has d ied or ceased to act and that the ward ' s

health or welfare i s in immediate jeopardy , may enter without

warrant into any premis e s for the purpos e of taking custody

of the ward and removing him or her to a place of safety and may without warrant take custody of the ward and , where

considered nece ssary , remove him or her to a place of safety .

(4) A peace offi cer or the official representat ive after taking

custody of a person under subsection ( 2) or subsection (3) sha l l forthwith report the matter to the department which

shal l , whenever practicable , assume custody of the person and thereafter be responsible for that person ' s care and

supervision.

(5 ) Where the department assumes custody of the per son under thi s

section , such custody shall not extend beyond five days

unle s s an application under section 3(1) is made .

( 6 ) Where the department a s sumes custody of the per son und e r thi s section , it shall report that information to the off i c i a l

repre sentative forthwith .

(1) Where it appears to the court that

(a ) a person i s a person in respec t o f whom an order could be made under s ection 3 (1) ; and

(b ) there is no one suitable and willing to be appointed that person ' s personal guardian ,

the court shall appoint the minister a s the person ' s personal guardian .

The official 17. representative

- 22 -

(2) Where the minister has been appointed the personal guardian, the minister shall be responsible,

subject to section 9, for the expense of sheltering, supporting, and caring for the ward.

(3) The minister may make such payments as is considered

necessary to or for the benefit of a personal guardian, ward, or other person, where special services or moneys are considered by the minister essential to enable the personal guardian to care for the ward.

(1) There shall be appointed as an officer of the Legislature an official representative of persons for whom a personal

guardian has been appointed or constituted under this Act.

{2) The official representative shall keep under review all applications and orders made under this Act so as to

further the best interests of proposed wards and wards as the case may be.

(3) The official representative may

(a) provide consultative services to assist in the co-ordination of existing community and other services and in the development of new services; and

(b) conduct research with a view to ascertaining more effective methods of providing community and other services aimed at promoting and carrying out the purposes of this Act.

(4) The official representative shall make and submit to the Speaker of the Assembly an annual report, which shall be laid before the Assembly within fifteen days from the commencement of the session next following the end of the year for which the report is made, respecting the exercise

of his or her powers and the performance of his or her duties and functions under this Act, including, without limiting the generality of the foregoing,

(a) the number of orders made under section 3 (1) ; and

(b) the number of apprehensions made under section 15(2) and section 15(3).

cation 18.

urt for tions

mentary 19.

nal ians

- 23 -

Any personal guardian may apply to the court for advice

or direction.

(1} Upon the death of a personal guardian, where there

is a testamentary nomination of another person to

act as personal guardian, the testamentary nominee,

upon notifying the official representative that he

or she consents to act as personal guardian, shall

become the personal guardian of the ward with the

same power and authority as the deceased personal

guardian.

(2} The testamentary nominee shall continue to act as

personal guardian unless and until

(a} a new personal guardian is appointed by

the court; or

(b) the court makes an order discharging the

testamentary nominee as personal guardian.

2 0 . An appeal lies from any order of the court to the Court of

Appeal within the time and in accordance with the practices

and procedures established in the rules of the Court of

Appeal.

5. COMMENTARY

- 24 -

Since personal guardianship transfers the exercise of certain rights

from the ward to the personal guardian, who, in the exercise of those

rights, stands in the ward's stead, and imposes certain duties of

protection on the personal guardian, it is necessary to identif y the

group of potential wards as clearly as possible so as neither to include

those for whom a personal guardian is inappropriate nor to exclude those

for whom one is.

It is clear that just as the question when appointing a guardian of

the property is the capacity of the person to look after his or her

business affairs, so the question of whether or not to appoint a personal

guardian is one's capacity to take care of oneself. The issue is self­

reliance: to the extent that persons are capable of taking care of

themselves, they must be accorded that opportunity; to the extent that

they are reliant on others f or decisions respecting t heir self- care, they

must have the opportunity to have a personal guardian appointed to make

those decisions.

It is not the quality of a person's personal care decisions that need

interest us, but rather the capacity of the person to make those decisions.

Interference in a person's life simply because an unreasonable decision

has been made is wholly unacceptable. It is only for those persons who

are unable, that is, who lack the capacity, to make their personal care

decisions that the courts should appoint a personal guardian. Eccentricity

is no� a reason which in itself dictates such a course of action; nor is

bad judgment. Nevertheless, there is a standard of personal care below

- 25 -

which society will intervene in the best interests and for the protection

of persons falling below that standard. This intervention must be

tempered with the recognition that capacity is a relative concept. Thus,

implicit in modern notions of personal guardianship is the idea that

orders appointing personal guardians should be "tailor- made" to the needs

and capabilities of those persons who are capable of making some, but n ot

all, of their personal care decisions.

One of the purposes of a "tailor- made" personal guardianship order is

to protect the protected from being over-protected. "Protective overkill"

is a major concern of those who recommend greater use of personal

guardianship as a "protective service". By its very nature, personal

guardianship not only imposes the obligation of protection on the guardian,

but also provides the opportunity f or exploitation. The exercise of

personal guardianship in a paternalistic manner, out of the best of motives,

may, in the end result, not be an exercise in the best interests of the

ward.

On an application for the appointment of a personal guardian, the

court must inquire as to the extent to which the proposed ward is in need

of one and must consider the physical, psychological, emotional, social,

medical, residential, vocational, economic and other needs of the proposed

ward.

In order to help the court determine the appropriateness of a personal

guardian, the court might appoint a person to make an investigation and to

prepare a report for its assistance. Once the report is prepared it should

- 26 -

be filed with the court and be made available to all parties t o the proceedinos.

While this report should be admissible without proof of the qualifications

of its maker, that person should be available f or cross-examination.

As well, the court should consider the wishes of the person for whom

a personal guardian is sought to the extent that the court considers

appropriate, having regard to that person's capacity.

We have already referred to the problem of providing personal guardians

where there is no one to assume that role. The resolution of that problem

is an important part of these tentative proposals. Alberta's recent

legislation has attempted to resolve this problem by establishing the office

of the Public Guardian. The Public Guardian has jurisdiction to be

appointed personal guardian where no one else is willing, able or suitable

to be appointed as such. As well, the Public Guardian is personal

guardian of any person whose guardian has died where no one else is willing

to act. If this mandate were taken seriously, one commentator suggests,

the Public Guardian

will have to make hundreds, if not thousands of

applications to be appointed as plenary or partial

guardian so that all persons in the mental retardation

institutions, mental health institutions, nursing homes,

geriatric facilities, and certain wards of public

hospitals as well as all the persons in the community

who are in need of a guardian have one. 46

46. McLaughlin, above, note 45, at 68.

- 2 7 -

McLaughlin concludes that the Alberta Public Guardian will be unable to

carry out thi s mandate s ince

The s cope of the problem is staggering ; it would

require a maj or re- structuring of the social

service system , the volunteer system and a maj or

re-allocation of funds to guarantee personalized guardianship for such a large group of per sons . 4 7

Under the Alberta s cheme , the Public Guardian assumes a dual role of guardian

and " ombudsman " . We would prefer to see thos e roles separated . Therefore ,

we recommend that the Minister of Social Servic e s be appointed personal

guardian where a person is in need of a personal guardian and there i s no

one suitable or willing to be appointed as such . The " ombudsman" role

should be f illed by an independent offi cer of the Legi slature whom we

refer to a s the " Off i c ial Repres entative " . We f eel that thi s arrangement

will overcome any arguments directed against a supplier o f soc i al serv i c e s

being appointed per sonal guardian with the inevi table conflict of interest

which is thought to aris e . Under our propo s al , the Official Representative

is to be notified of every applicat ion for the appointment of a per sonal

guard i an or for the review of a guardianship order thus providing an

opportunity for monitoring the c ircumstances surrounding every such

application . Where it appears that a person i s in need o f a per sonal guardian

and there i s no one suitable or willing to be appointed a s such , the court

mus t make an order appoint ing the Minister a s the person ' s personal guardian .

4 7. Ibi d .

- 2 8 -

The "front-end " of our proposed s cheme i s the need to bring to the

attention of the Department of Soc ial Services the plight of tho se in

need of a per sonal guardian . Thus , everyone who has information that

a person i s in need of a personal guardian mus t report that information

to the Department of Soc ial Servi ces , to a peace officer , or to the

Offic ial Representative , who in any event , must be made aware of such

information . The Department mus t investigate such report s and mus t file

a copy of its report with the Official Representative .

Where the Department has been reques ted to investigate a complaint

that a per son i s in need of a personal guardian and i s refused access to

that person , an application may be made to a j u s tice of the peace or

to a provinc i al court j udge for a warrant authori zing the appl ic ant to

enter , by force if necess ary , any premises or other place speci fied in

the warrant in order to conduct such an investigation . Where the Department ,

a peac e offi cer , or the Off i c ial Representative has reasonable a nd probable

grounds to believe that a person i s in need of a personal guardian and

that per son ' s health or welfa re i s in immediate j eopardy , ent ry without

a warrant may be made for the purposes of tak ing custody of and removing

that per son to a place of safety . S imilarly , where the Department , a

peace off icer , or the Off i cial Representative has reasonable and probable

grounds to believe that a personal guardian has died or ceased to act and

that the ward ' s health or welfare is in immediate j eopardy , again entry

without warrant may be made for the purposes of taking custody of and

removing the ward to a place of s afety . Where a peace officer or the

- 2 9 -

Offic ial Representative takes custody of a person , it must be reporte d

immediately to the Department which mus t , whenever practicable , a ssume

custody of the person and be respons ible for that person ' s care and

supervis ion .

Under our s cheme of personal guardianship , i t i s the duty of the

Official Representative to keep under review all applications and orders

made under the Act so as to further the bes t interests of proposed wards

and wards as the case may be . As wel l , the Offic ial Representative may ,

if cons idered necessary ,

( i ) provide consultative services to a s s i s t in

the co-ordination of existi ng community and

other services and in the development of new

services ; and

( i i ) conduc t research with a view to ascertaining

more effective methods of providing communi ty

and other serv ices aimed at promoting and

carrying out the purposes of the leg i s lation .

The following are some , but not all , of the s i tuations in whi ch the

Off i c i a l Repre s entative might dec ide action was neces sary .

1. Where an appl i cation i s made for an order appointing

a personal guardian ,

( a ) if the Off i cial Representative i s of

the opinion that the person in respect

o f whom the application i s made i s not

in need of a pers onal guardian , then the

- 3 0 -

Official Representative will oppose

the a pplicati on;

( b) if the Official Representative is of

the opinion that the person proposed

as personal guardian is not suitable,

again the proper course will be to

oppose the application;

( c) if the applicant is seeking greater

personal guardianship authority than

the Offici al Representative considers

necessary, such opini on will be brought

to the court's attenti on;

2 . Once an order appointi ng a personal guardian is

made, if the Official Representative is of the

opi nion that the order is not being carried out

in accordance with its terms and the terms of

the Act, an appli cation for review of the order

will be made .

3. Where the Official Representative finds that a

person i s in need of a personal guardian and

there is no one willing to assume that role,

the proper course will be to launch an

application to have the Minister named as personal

guardian. The monitoring role of the Offi cial

Representative wi ll be no different in the case where

- 3 1 -

the Mini ster i s appointed personal guardian

than it will be in the case of a private

ind ividual appointed as such .

4 . Where a personal guardian dies and leaves

a will nominating another person to cont inue

as personal guardian , that nomination wi ll be

eo!:fective upon notification to the Official

Repre sentative by the testamentary nominee ,

at which time the testamentary nominee become s

the personal guardian o f the ward with the same

power and authority as the deceased personal

guard i an . The testamentary nominee cont inue s

as such unles s and unti l a new personal guardian

is appointed by the court or the court make s an

order discharging the testamentary nominee a s

personal guardian . Thu s , i f the Official

Representat ive i s of the opinion that the

testamentary nominee is unsuitable to act as

personal guard ian or that the ward i s no longer

in need of a per sonal guardian , an applicat ion

wi ll be launched e i ther for the appointment of

a new personal guardian or for the d i scharge of

the testamentary nominee as personal guardian .

5. Where a personal guardian d i e s and leave s no wi l l ,

there will be a hiatus in the personal guardiansh ip

- 3 2 -

of the ward . However , i f anyone has information

that the ward is in need o f personal guardianship ,

that information mus t be reported to the depar tment

or to a peace off icer or to the Official Repre sentative

in the usual fashion . Similarly , where the department ,

a peace officer , o r the Official Repre sentative has

reasonable and probable ground s to believe that a

personal guardian has died or ceased to act and that

the ward ' s health or welfare i s in immediate j eopardy ,

entry , without warrant , might be made for the purpose

o f tak ing custody o f the ward and removing him or

her to a plac e o f safety . In tbi s way , it i s

env i s ioned that the gap in personal guardianship will

be alleviated a s quickly a s pos s ible .

6 . Where a personal guardi an d i e s nominat ing b y wi ll

another person to continue as personal guardian but

the testamentary nominee declines to accept that

nomination , while i t i s unreal i s t i c to cast the duty

upon that testamentarv nominee to inform the IJJi n i ster

or the O f f i ci al Repre sentative o f the refusal to act ,

with the co-operat ion o f the Bar , or in c a s e s where

applicat io n is made fer probat e , the C l erk of the

Surrogate Cour t , it is hoped that the Offic ial

Repre sentative would be made aware o f the death of the

personal guard ian . Once having been alerted , the

- 3 3 -

Official Representative wil l undertake such

course of action as is thought necessary in

the c i rcumstances .

Thus , unl ike the Alberta s cheme , our Offic ial Repre sentative would

never act a s a personal guardian . Rather , h i s or her role i s more l ike

that of an " ombudsman" ; being of a s s istance not only to wards , but a l so

to personal guardians , in the carrying out of their respect ive dutie s .

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6 . CONSEOUENTIAL AMENDMENT OF THE Ji1ARRIAr!E A CT

If our proposed Guard ianship Act were enacted , an amendment to The

u • A t .

A t4 6 l'larr-�age c would be required . The pre s ent Marr-�age c provides

that :

No person who :

( a ) is a mentally retarded person as

def ined in the regulations ;

(b ) i s a mentally i l l per son as defined

in the regulations ; or

( c ) has , in a communicable s tate , one of

the communi c able d i seases spec if i ed in the regulation s ;

shall marry within the province .4 7

Further , the A c t provides that :

No c l e rgyman or marriage c ommi s s ioner sha l l perform

a marriage ceremony where he knows or has reason to

believe that one of the partie s to the marr iage :

( a ) i s a mental ly retarded pe rson a s defined

in the regulation s ;

( b ) i s a mental ly i l l person as d e f ined i n the

regu lation s ; or

( c ) has , in a communicable state , one of the

communicable d i s e a s e s spP c i f ie d in the

regu lations . 4 8

4 6 . R.S.S. 1 97 8 , c . M- 4 .

4 7 . Ibid. , s . 5 3 .

4 8 . Ibid. , s . 5 4 ( 1 ) .

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Before performing a marriage c eremony , the clergyman or marriage c ommis sioner

mus t have rece ived a h ealth certificate from a qualified medical practitioner

s tating that the per son examined

i s not a mentally retarded per son or is not a

mentally ill person , a s defined in the

regulations under The Marriage Act • • • • 4 9

Thi s medi c al examination mus t have taken plac e within the 3 0 day s immed iately

pre ceding the date of the solemnization of the marriage .5 0

as :

h 1 . 5 1

1 1 t d d . d f . d Pursuant to t e regu a t1ons , a menta y re ar e person 1 s e 1 ne

one who i s inc apable of functioning in a marriage

relationship due to s ignificantly subaverage

intellec tual development with def i c its in adaptive

behaviour

and a mentally ill person is defined as :

one who i s incapable o f func t ioning in a marriage

relationship due to severe d isorder of thought ,

emotion or behaviour5 2

I n view of our tentative propos als for a Guardianship Act , we r e c ommend

tha t sections 53 and 5 4 , at least insofar as they refer to mentally r e tarded

and mentally ill persons , be redrafted in order to paralle l the language of

4 9 . Ibid. , s . 54 ( 2 ) ; Saskatchewan Regulation 2 1 9/7 8 , publi shed in the Saskatchewan Gaz e tte , July 14 , 1 9 7 8 .

5 0 . The Marriage A c t , ibid . , s . 54 ( 3 ) .

5 1 . Ibid. , s . 58 .

5 2 . saskatchewan Regulat ion 2 1 9/7 8 above note 49 .

- 3 6 -

the draft Act :

5 3 . No pe r son who :

( a ) lacks suffi c ient capacity to understand

the nature of and appreciate the consequences

of marriage ; or

( b ) has , in a communi cable state , one of the

communicable d i seas e s specified in the

regulations ;

shall marry wi thin the province .

5 4 . - - ( 1 ) No clergyman or marriage commis s i oner shall perform a marriage ceremony where he

knows or has reason to believe that one of the

parties to the marriage :

( a ) lacks suffic ient capacity to understand the nature of and apprec iate the consequence s

o f marriage ; o r

( b ) has , in a communicable state , o n e o f the

communicable d i seases spec ified in the

regulation s .

In addition , the regulations defining a "mentally retarded per son" and a

"mentally ill person" should be repealed and the language of the health

c ertificate should be redrafted to r eflect the language of the redrafted

section 5 4 ( 1 ) ( a ) of The Marriage A c t .

A P P E N D I X

A br i e f exp lana tion o f s ome l ega l termino logy , methods

of c itation a nd f ootnot ing, and a list o f abbreviations for

the as s i s tanc e of r eade rs wh o do not h ave l ega l train ing :

LEGAL TERMINOLOGY

affidavit - A w r i tten or p r inted dec laration or s tatement of facts , made

volunt ar i ly , and c onf i rmed by the oath or a f f i rmat ion of the par ty mak ing i t , taken b efore an o f f ic e r hav ing auth or i ty t o admi n i s t e r s u ch oath .

chambers - Any p la c e i n wh ich a j udge hears mot ions , s igns pape rs , or does oth er bus ines s perta in ing t o h is or he r o f f i c e , when not hold ing a s es s ion o f c ourt .

commi t tee - A per s on t o wh om th e c o ns ideration , determina t ion , or manag ement

o f any matter inc lud ing propertv i s c ommitted or r e f e r red by a c ou rt .

court - A body orga n i z ed to admi n i s ter j us ti c e .

idiot - I n l aw, a perso n who has been without understandinq from b i r th , and whom the l aw pre sumes never l ik e ly to attain any .

inter vivos - Between one l iving p ers on a nd anoth er .

luna tic - I n l aw , one who pos s e s s ed reason , but through d i s eas e o r other cause ha s l o s t i t .

peace officer - A pub l ic of f i c er whos e duty is to enforce and pres erve th e peac e .

persona l guardian - A per s on lawfu l ly i nves ted w i th the power , and c h arged w i th th e duty , o f tak ing care o f anoth e r pers on , who , for s ome p e c u l iar i ty o f s tatus , or d e fe c t of age , unders tanding , or s e l f - c ontr o l , i s c ons ide r ed incapab l e o f admini s te r ing h i s or h e r own a ffa i rs .

pe ti tion - An app l i c at i on made to a c our t request ing author i ty to do s ome act wh i c h r equire s the sanction of the court , such a s the appoi ntment o f a guard ian .

tes tamen tary nomine e - A pers on nom i nated to act in s ome c apac i ty bv a w i l l o r testament and not to take e f fect unt i l a fter the death of th e pers on mak ing i t .

viva v oce - By word of mou th , a s d i st ingu i shed f rom evidence by a f f i davit .

ward - A p e r s on p laced by auth or i ty of law under th e c a r e of a gua rd i an .

( i )

FOOTNOTES AND C I TAT I ONS

Footnotes us ua l ly record the origina l source o f informa tion o r quota ­

tions c ontain ed in a text , but may be us ed to d eve lop a point w i th ou t

inc l uding a digres s ion within the text itse l f .

I n lega l writing , the auth orities mos t o f ten cited in footnotes a re

s ta tutes and ca s e rep or t s .

s tatu tes (Ac ts of the Legis lature ) - Acts o f the Legis lature of

Sa s ka t chewa n are initia l ly pub lished in a nnua l vo lumes . Each a c t is d e s ignated by the y ea r or yea r s o f the s es sion o f th e

Legis lature in which it is adopted a nd is qiven a chaPter numb e r .

A refe rence to s . s . 1 9 7 0 c . 2 3 r e fers to a n a c t des igna ted as

the 2 3 rd chapter of the Sta tutes o f S aska t chewa n adopted dur ing

the 1 9 7 0 s ession o f the Le gis la ture . A reference to S . S .

19 7 4 -7 5 c . 2 3 refer s to a n a ct d e s iqna ted a s the 2 3 rd chapt e r

o f th e S ta tutes o f S a s k at ch ewa n adopted dur ing the 1 9 7 4 �7 5 s es s ion

o f the Legis la ture . The a nnua l vo l umes may contain acts adopted

during more than one s es s ion o f the Legis la ture .

Periodic a l ly , mos t of the provincia l s ta tute s in for c e ar e re­

pub lished in a serie s o f volumes known as the Revis ed S ta tutes

of Sa s ka t ch ewa n . A referenc e to R . S . S . 1 9 6 5 c . 2 5 designa t e s an

a c t which can be found as the 2 5th cha pter of the Revised

S ta tute s of S askatchewan a uthorized by the Legis la t ure in 19 6 5 .

The la s t revis ion occur red in 19 7 8 and i t shou ld be noted that

cha pte r s a re identified hv h oth a let ter a nd a number . For

exa mple , R . S . S . 1 9 7 8 c . B - 2 refers to the second act c onta ined

in the Revised S ta tutes o f S aska tchewan which b e gins with the

l etter " B " .

The Eng lish s ta tute cited a s 5 3 & 5 4 Vie t . c . 5 re fers to a

s ta tu t e cons idered by the ses s ion o f par liament i n the fi fty­

third a nd fif ty- four th regna l yea r s o f Vict o r ia ' s reign and

pa ssed in either the fifty- th ird o r fif ty- f our th yea r and

pub lished a s the � i f th cha pter o f the vo lume of s ta tutes for

those two vear s . In Sa s ka t ch ewan , the regna l yea r s a r e s e t

out a t th e b e g i nning o f the a nnua l volume o f s ta tutes b ut

the s ta tute s th em s elves a re ref e r r ed to by ca lenda r yea r .

case r eports - Important j udicia l dec isions a re pub l i s hed in b ou nd volumes .

There a re numerous s eries o f case reports , a nd s ome ca s es may a ppea r

in mor e than o ne series . For examp l e , a n impor ta nt S as ka tc h ewa n cas e

ma y a ppea r in th e Wes tern Week ly Repo r t s ( W . W . R . ) , a nd the Dominion

Law Repor t s ( D . L . R . ) . I f the case rea ched the Supreme C o u r t o f

Ca nad a on appe a l , it may a ls o be reported in the S upreme Cour t Repo r t s

( S . C . R . ) . C a s e cita tions inc l ude a n abb revia ted name o f the repor t .

( ii )

For example , Re Cochran ( 1 9 6 5 ) , 4 6 D . L . R . ( 2d ) 5 8 7 ( S as k . Q . B . )

r e fers t o a cas e wh i ch c a n b e f ound in the forty- s ixth volume

of th e s ec ond s er i es of the Domin i on Law Reports for the year 1 9 6 5 a t page 58 7 . I t was a dec is ion o f the Saskatchewan C ourt o f Que e n ' s B ench .

abbrevia ted citations - A cas e , s tatute or c ommentary i s u sua l ly c it e d i n fu l l only th e f ir s t t ime i t i s referred t o i n a text . Thereaf ter , th e fo l lowing abbr ev i a t i on among others i s u s ed .

ib id - The s ame s ourc e a s the immed iat e ly preceding footnote .

LI S T OF ABBREVIATIONS

A U E. R. Rep. - A l l Eng land Reports Reprint

C. A. - C our t of Appe a l

C. J. H. C. - Ch i e f Jus t ic e o f the H igh C ou r t

D. L. R . - Dominion L aw Reports

K. B. - K ing ' s Bench

O. R. - Ontar i o Reports

Q. B. - Que en ' s B ench

R. S. B. C. - Rev i s ed S tatutes of B r i t ish C o lumb ia

R. S. N. - Rev i s ed S ta tutes o f Newfound land

R. S. N. B. - Rev i s ed S tatute s of New B runsw i ck

R. S. N. S. - Revis e d S tatutes o f Nova S c ot i a

R. S. O. - Rev i s ed S tatutes o f Ontar i o

R. S. P. E. I. - Revis ed S ta tutes o f P r in c e Edward I s land

R. S. S. - Revis ed S tatutes o f S a s ka tc h ewan

S. A. - S tatutes o f A lb e rta

S. C. R. - S upr eme C ourt Reports

s . s . - S tatutes o f Saskatch ewan

W. W. l? . - Wes tern Weekly Report s

( i i i )