Nova Scotia

Incompetent Persons Act to be examined by Justice minister Diana Whalen

Justice Minister Diana Whalen says she and her staff are looking at modernizing Nova Scotia’s Incompetent Persons Act after a legal scholar said the act is outdated.

Diana Whalen says the law is outdated

Justice Minister Diana Whalen says she and her staff have started work on reviewing the Incompetent Persons Act. (Andrew Vaughan/The Canadian Press)

Justice Minister Diana Whalen says she and her staff are looking at modernizing Nova Scotia's Incompetent Persons Act after a legal scholar said the act is outdated and drastically reduces an individual's' freedom. 

"My commitment is we're not going to sit on this," said Whalen. "We'll start our research and our contacts right away."

Sheila Wildeman teaches law at Dalhousie University's Schulich School of Law and is the associate director of the Health Law Institute.

She said the Incompetent Persons Act allows a parent or guardian to prove that a person has a "mental infirmity" making that person unable to manage their own affairs.

Once a person is declared incompetent, their rights to do everyday things like manage their own finances and choose where to live are removed. 

Wildeman doesn't believe that the Incompetent Persons Act could survive a legal challenge under the Charter of Rights and Freedoms. 

After hearing Wildeman's comments on CBC's Information Morning, Whalen had her staff started reviewing the act. 

"It is an act from 1989, it is outdated, there is no question. So I've committed that we'll have a look at it and see what steps we can take," said Whalen. 

The act needs to be significantly reworked, according to the justice minister. 

"We really have to modernize it and rethink how it was written and what we're trying to achieve. We want to achieve independence, we want to recognize the rights of people, that's really important." 

Changes to act will take time 

Two of the main concerns with the act are how a person is deemed to be incompetent and how a person might appeal that decision. 

Twenty-five-year-old Landon Webb is trying overturn his status as mentally incompetent. His parents claim he functions at the level of a 10-year-old boy. Webb wants to be free to choose his own path in life and plans to prove his competency to the courts. 

Changes to the act could be a long time coming though. Whalen said her department has been busy making changes to family law. 

"We brought in a number of acts this session. We need to get that done and then I'd say this is one we'd move to right away. We have staff that can begin the scan and begin the contacts with health and community services and with outside advocacy groups," said Whalen. 

"It does take time to bring in a new law and get it into the agenda to come to the house." 


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