by Nahal Golmohammadi, winner of the 2024 Elder Law Section Student Essay Contest
The legal concept of capacity has been a part of the Western world since Roman society; the ideas behind capacity from the Roman period have prevailed. While the legal concept of capacity can assist older adults facing vulnerabilities, arguably, it can be also be a double-edged sword – within the legal profession we find a generalized legal test is adopted from a historically oppressive regime, which is employed to comprehend the nuanced and intricate concept of capacity. The idea of what capacity is and what capacity can look like vary from person to person, yet the legal field continues to employ archaic standards from a time before the existence of Western society.
In an attempt to create a universal and simple test for capacity, an incidental effect is created. Confusion, abuse, and the continued dehumanization of older adults become prevalent as one unravels the deleterious effects of legal capacity. I argue that by revoking an individual’s legal capacity, we are not only removing the ability for this individual to make decisions, but as an unpremeditated ramification, we remove the individual’s autonomy and self-dignity. No longer is the older, incapable adult seen as a participant in society. Instead, the older adult is reduced to an object of their identity: the incapable.
To address the growing concern of paternalism, I turn to Queer Theory as a method of unravelling society’s historical and present beliefs to scrutinize what it means to be incapable. Further, I will urge other legal practitioners and academics to consider the practicability of Queer Theory in the field of law.
Queer Theory has been traditionally used to challenge identities that perpetuate oppressive regimes and institutions. It is a political theory born from the resistance of the Stonewall era. Historically, the diverse demographic within the LGBTQ2S+ community was often forced together into one hegemonic group in academic studies. Queer Theory intended to address this generalization and grouping. Due to Queer Theory’s history of political resistance and its ability to acknowledge the wide range of diversity in large demographics, I believe it would be an excellent theory to examine the legal capacity and guardianship laws within Canada, specifically Ontario.
While legal capacity and guardianship laws can do good, it has created an identity among older adults of the “capable” and “incapable”, which leads to the oppression of the vulnerable. Using Queer Theory, I intend to address this identity and queer them.
I will begin by discussing the history of capacity laws in Canada and how the past is rooted in various acts of oppression and eugenics. I will then discuss Canada’s modern-day legislation and compare the past and the present. Next, I will discuss why legal scholars in Elder Law and even older adults should be interested in guardianship and the ramifications of capacity laws. Continuing, I will discuss Queer Theory – its origins, its critiques, and most importantly, how Queer Theory connects the history of lunacy laws to modern-day Elder law. With a foundational understanding established, I will attempt to analyze legal capacity through a queer lens.
The History of Lunacy and the Race to Perfection
It is argued that traditional legal capacity-related laws in Canada were created to address the need to act to protect those who are believed not to be able to care for themselves.1 When exercised, it would promote the protected person’s best interest. However, a sinister truth is revealed when Canada’s legal capacity laws take to the historical stage.
Guardianship laws have been a part of society as early as 449 B.C. Rome.2 At this time, Roman law stated that if a man were to be deemed a “fool,” let that person and his property be under the protection of his family or paternal relatives.3 The precise definition of “fool,” in the context of 449 B.C. Roman society remains ambiguous; nevertheless, it is reasonable to infer that, like any term, it was grounded in the prevailing societal norms and perceptions of what constituted ‘normal’ and ‘unfoolish’ behaviour during that era. The Roman legal system represents one of the earliest instances of guardianship laws on record, with their paternalistic principles from that era influencing subsequent developments such as the enactment of the Lunacy Act, 1890 in the 13th and 19th centuries.
Before the Lunacy Act, 1890, which is said to have been the foundational point that Canada’s legal capacity laws would grow,4 a history of the eugenics movement is revealed. The eugenics movement, also called Darwinism by some, was the idea that the human race could rise in superiority through selective breeding and natural selection. Though it is impossible to say why Roman law deemed it necessary for ‘fools’ to be taken under the care of another person, it can be said that the eugenics movement greatly influenced capacity laws in the 19th century.
The roots of legal capacity, and capacity law in general, were influenced and popularized through the eugenics movement – the same movement that influenced the crimes committed in Nazi Germany. Before the Lunacy Act, and even afterwards, there was a heated discourse that those who were ‘feeble-minded’ were a burden on society – and the human species in general – and therefore not fit for the superior race Darwinism promised. This popularized the idea that those who did not fit into the concept of “capable” were seen as burdens5 and failures of the human species.
The story of Darwinism influencing lunacy laws in Canada begins in 1839. In 1839, the Ontario Government passed legislation called “An Act to Authorize the Erection of an Asylum within this Province for the Reception of Insane and Lunatic Persons”.6 The goal of the legislation was to give the government of Ontario the authority to create the first provincial Asylum for people with developmental disabilities,7 marking the first piece of legislation to be introduced in Canada that directly dealt with the “feeble-minded”.8
Later, the other provinces of Canada would follow Ontario’s path and create their own “Asylum for Idiots”, leading Alberta to order the sterilization of people declared “mentally deficient” and considered a danger of transmitting such deficiency to future children.9 The rationalization behind this forced sterilization was the commonly accepted belief that people who were “feeble-minded” would make poor parents and produce children prone to crime and other social problems.10
Although Ontario did not follow suit with Alberta’s sterilization policies, the impact of the eugenics movement was still demonstrated in Ontario through institutions such as Orillia’s Asylum for Idiots.11 The Asylum’s original aim was to be a training school for juveniles. Still, as eugenics theory continued to rise in popularity, the original objective of the Asylum was altered. Bolstered by the support from critical Canadian figureheads such as Dr. Helen MacMurchy and Dr. C. Hincks, Orillia’s Asylum for Idiots became more about segregating the “feeble-minded” from the rest of society for the rest of their lives rather than an institution for learning.12
The year 1890 was when the Lunacy Act was introduced. As stated, this act became the basis of early Canadian guardianship laws.13 At the same time, the Lunacy Act was supposed to end the unjustifiable confinement of individuals being taken to Asylums and workhouses. Still, there was little change in the social and political beliefs surrounding those who fell into the category of lunatics. Society still perceived incapable individuals as feeble-minded, burdens to society, and living proof for some that Darwinism was necessary to keep the human species alive.
After the enactment of the Lunacy Act, many experts such as Dr. Helen MacMurphy,14 Dr. Clarence Hincks, and Dr. C.K Clarke aligned themselves with the eugenics movement.15 Their work convinced many politicians and medical professionals that feeblemindedness was a growing disease among Canadians16 and that it was the cause of criminality and disease.17 These experts on “feeblemindedness” convinced Canadians that the best way to combat the spread of mental deficiency was through the segregation and eventual sterilization of the unfit.18
The historical conflation of the eugenics movement and the idea of “lunacy” created laws that reflected the negative perceptions of people with cognitive and developmental impairments as being degenerates, sinful, and morally weak.19
Society no longer believes that those deemed incapable must be segregated and sterilized. However, the effects of those accepted norms still prevail. Individuals, especially older adults, who experience incapacity are seen as burdens to society. Media and modern culture promote ageist ideas that older adults who are disabled are burdens for removing resources yet not participating in replenishing them.
While legislation has attempted to move away from traditional guardianship laws and beliefs surrounding legal capacity, a paternalistic element still removes autonomy from the individual. This removal of autonomy can be equated to distrust of people with cognitive and developmental impairments, that they cannot protect themselves and therefore require state intervention.
Though that may be true for some, the diverse older adults in the “elderly” category may not agree to intervention. After all, they have spent the majority of their lives making decisions for themselves.
Current Day
From the 1920s to the present day, much has been done to re-establish the inherent rights owed to older adults with disabilities.
Currently, Ontario’s statutory framework for legal capacity, decision-making, and guardianship consists of two main statutes: the Substitute Decisions Act of 1992 and the Health Care Consent Act.20 The critical policy choices underpinning these statutes’ framework to promote and protect autonomy through decision-making, the presumption of capacity, emphasis on rights, and so on.21 However, as research shows, the legislation must adhere to its schema.
Specifically, the test requires the individual to “understand information that is relevant to making a decision” concerning their property or their person and if they can “appreciate the reasonably foreseeable consequences of their decision or lack of decision.”22 The adult is deprived of legal capacity; a substitute decision-maker is appointed to them. Canadian laws about legal capacity rely on cognitive tests to grant or deny legal ability.23
A substitute decision-maker (SDM) acts on behalf of the individual in their best interest. It is important to note that substitute decision-makers must respect any decisions the older adults made while they were still “capable.” If none were expressed, the substitute decision-maker makes decisions based on the older adult’s best interests. According to the legislation, SDMs must keep records of their activities and procedural duties and encourage individual participation in decisions. However, due to the lack of monitoring, whether SDMs follow these procedures is still being determined.24
Although this paper focuses on examining the legal definition of capacity in Ontario, it is essential to note the legislation in place in differing provinces, as each jurisdiction can impact the others.
Saskatchewan, Manitoba, and the Yukon currently use a co-decision-making model in guardianship legislation. Saskatchewan has the most comprehensive legislation, allowing the co-decision-making model in property and personal matters.25
Alberta’s legislation includes The Dependent Adults Act of 1976, which built guardianship around functional disability rather than capacity and a principle of partial guardianship to support the idea that human functioning is a spectrum of abilities rather than absolutes.26 This legislation removed the labelling of adults as “incapable” and further supported the individual autonomy of each adult experiencing disability rather than blanket terminology such as capable and incapable.
Why should Elder Law Care?
The everyday use of standardized tests for cognitive functioning to determine incapacity has weaknesses. The test currently applied in Ontario provides only a crude global assessment of an older adult’s experience with cognitive impairments. Modern-day adult guardianship legislation searches endlessly for the perfect “capacimeter,”27 which often affects older adults at a higher level due to the socially constructed class of incapability being linked to an older age.28 Often, guardianship is forced onto the subject by motivated family members and friends attempting to deal with a perceived vulnerability – a vulnerability that the older may not accept nor identify with.29
Determining a person as incapable or incompetent to manage their affairs in some or all respects removes a person’s authority over their own life and vests this authority in another. While usually done in the name of protection, such removal of an individual’s legal personhood is increasingly seen from a disability rights perspective as a violation that brings social and legal harm to individuals.30
Besides the overlap between the older population and those who experience disabilities, older adults who lose legal capability are also at risk of losing their rights and self-autonomy. The idea of legal capability still lies in the foundational idea behind lunacy laws: those who are “incapable” are seen as burdens of society and, therefore, must be taken care of by a capable individual. No more are they allowed to choose for themselves because their opinion does not matter: they are incapable. This vulnerable identity, therefore needing protection, is thrust onto older adults despite their diverse demographic. Adult guardianship often becomes a way to address society’s perception of the vulnerable older adult who needs protection, much as how society views children.31
The tradition of legal capacity laws lies in a history of restricting people’s right to autonomy and, therefore, their dignity.32 Older adults already face stereotypes and stigma from prevalent ageism in our society, which bleeds into the area of legal capacity. The idea that older adults are vulnerable and require protection from a guardian is linked to one of the founding reasons for the capacity laws: those who cannot care for themselves must be protected.33 These paternalistic interventions may appear out of caring concern, which is precisely that. However, what about those older adults who face morally invidious and unjustified intervention in their expressed wishes and desires?34
Regimes such as the paternalistic one create this idea that protected persons are more like objects than citizens, as their rights and self-autonomy are heavily restricted.35 Often, instead of alleviating the stress of decision-making from older adults who may need assistance, paternalistic legislation frustrates the fundamental purpose of guardianship: providing ongoing service to prevent harm.36
Traditionally, guardianship laws had the primary goal of protecting the adult and the adult’s estate, not promoting autonomy or assisting in decision-making.37 While Ontario attempts to move away from paternalistic legislation, there are still traces of extreme intrusion into the adult’s sphere of self-determination in current legislation. The paternalistic approach still lingers in the SDA through the idea of protecting autonomy through negative liberty.
A primary mode of protecting autonomy in a negative liberty approach is to state who cannot exercise autonomy, drawing a boundary between the competent and incompetent.38 Though this boundary has been accepted as a necessary evil, it does not have to be, nor does it make sense for it to be the accepted route. Negative liberty ensures that the state does not intervene to determine what life paths are best for individuals, nor does it define what a ‘good life’ is.39 Instead, negative liberty protects the individual’s autonomy to define and pursue a ‘good life for themselves’, whatever that may be.40
Legal capacity and its laws profoundly affect individuals who must come in contact with the legislation, that being older adults with cognitive disabilities. While legal capacity helps some, it often results in elder abuse and neglect for older adults. For the legal capacity to function at its prime, it must both be a ‘sword’ to advance autonomy and the freedom to make decisions while also being a shield to protect against others who would impose decisions on the individual.41
By allowing blanket restrictions on the exercise of rights by older adults with disabilities, Canada’s legal capacity laws may create the stereotype that older adults are unable to make decisions for themselves and thus are undeserving of agency and self-autonomy.42 Therefore, as legal scholars and academics, it is pertinent that we put more thought into the legislations that affect the personhood of our aging population, especially when such a demographic is soon to become the majority.
Limitations of Queer Theory
As this article proceeds, it will advocate queer thinking, pedagogy, and ontology. Therefore, it is helpful to acknowledge that the anti-identity stance Queer Theory practices are contested by political-based identity theorists.43 While queer thinking looks to dismantle and expose identities as forms of oppression, many people find comfort within a static identity. There are individuals, as well, who use the mantle of their identity to tackle systematic oppression within institutions. Queer Theory can, in this sense, appear to take away the power of identity from those who are already powerless.
Furthermore, there are some other contentions with queer thinking in academic settings. In academia, the value of queer scholarship can often be restrained to textual analysis.44 Although textual analysis can open the door to new ways of thinking, more practical applications must be applied. While this argument can be used for other contemporary forms of thought, I believe that the lack of practical application of Queer Theory can be explained in two ways.
Firstly, queer thinking requires us to abandon social norms to allow ourselves to expand our way of thinking. Queer Theory demands us first to understand the root and the history behind our social norms, why we perceive something to be expected, and then look to dismantle it by doing the opposite of normal – the queer. Though helpful, it would be difficult for society, especially the legal field, which requires definitions and the ‘norm’, to do away with expectations for one another. It is not easy to imagine a world where all members of society appreciate a Foucault level of understanding. As stated before, identities can be used as ammunition against oppressive institutions through normalizing behaviours. Queer Theory looks to do away with “normal” and accept everything as queer.
A potential way of tackling this is through a modified approach. Instead of removing all social norms, we can limit the influence the idea of “normal” has on our legislation. This would mean looking at identities we wish to label others with a sociopolitical and historical context – what does it truly mean to call someone “incapable”, and what historical connotations does that hold? By acknowledging the power of words, labels, and identities, we move away from continuing an oppressive regime.
Another explanation for the lack of practical application of Queer Theory, I contest, is that Queer Theory is still a new wave of thought. Queer Theory developed during the second wave of Feminism during the twentieth century due to the movement being primarily defined by middle-class white women. Queer Theory branched away from the identity of white cisgender women and looked to represent the underrepresented: the LGBTQ2S+ community. The LGBTQ2S+ community was, and still is, a diverse demographic with various sexualities, gender identities, age, race, and socioeconomic status (much like the older adult population).
Unlike Critical Theory, Marxism, and Feminist Theory, Queer Theory is a relatively new wave of thought. Its pedagogy is still being developed, and few academics continue to use queer thinking to tackle issues not specific to the LGBTQ2S+ community. It is still widely believed that Queer Theory is a theory made particular to the LGBTQ2S+ and that it only tackles problems about gender and sexual identities. Academia is allowing queer thinking to move away from that belief, by applying it to scenarios and demographics where there is a need to remove our society’s expectation of “normal.”
Just as Critical Race and Anti-Racist Theory branched from a more extensive, older ontology, queer thinking has yet to catch up to older ways of thinking. It is slowly creeping into the legal field. Therefore, I contend that the lack of application of queer ontology is not due to it being impractical, but because there is simply a lack of academics and scholars using the pedagogy in their analysis. Without legal professionals and lawyers adopting a queer perspective and attempting to put it to use, it cannot be said that queer thinking is not a viable option. Queer Theory is still very much in its infancy compared to others and therefore requires the time to become equal with other theories utilized in the academic sphere.
While I contend that Queer Theory has a practical application to our society’s problems, it does not negate the original point: Queer Theory demolishes identities, and identities can sometimes be ammunition against institutional oppression – especially for those who cannot abandon their identity due to racialization. It is essential to be conscious of the balance between ridding society of normal identities and simultaneously acknowledging that our identities – especially those who cannot hide from them – can be used to dismantle the institutions that write our futures.
What is Queer Theory?
Queer epistemology developed in the early 1990s and was influenced by psychoanalytic and post-structural ideas around identity, sexuality, and the role of the symbolic.45 The most frequently cited theorist and progenitor of Queer Theory is Michel Foucault.46 47 Queer theorists illustrated that some experiences lead to identities, which then were subject to disciplinary power.48
Queer Theory emerged as one of the results of the Stonewall era49 and a result of theorists searching to understand why there are some differences (ex., race, sexuality, etc.) that matter more than others.50 The stage in which the Theory was born was during the second wave of Feminism and the beginning of the gay rights movement, which influenced the liberal ideas of equality, Feminism, and other liberatory political movements.51 Queer Theory, thus, was centred on the notion of resisting identities. At the forefront of the theoretical movement, Queer Theory’s initial aims were to deconstruct the heterosexual-homosexual binary within our culture and critique the idea of “normal” relationships.52
As time passed and queer epistemology was further explored, Queer theory began to deviate from focusing solely on the identities of the LGBTQ2S+ community. Identities that created unstable power dynamics are found everywhere, and Queer theory was made to challenge and destabilize said identities. As a form of political activism, Queer theory, or “queering” became a way to resist the normativity assigned by society by indulging in the taboo or anti-normal. Queer Theory has developed into an ideology that challenges society’s idea of what is expected, intending to agitate and deconstruct social privilege, hierarchies, and power relations that harm populations that are subject to the oppressive effects of “normal”.53
How do Queer Theory, Elder Law, and Lunacy Laws interact?
Since the beginning of lunacy laws, capacity has been defined through society’s expectations of what is expected. In the nineteenth century, the idea of lunacy correlated with characteristics of “beast-like” behaviours, accompanied by whips and chains, which even affected the medical field, where metaphors of demonic possession prevailed.54 The best example of socially constructed normalcy is the treatment of women in the 18th century who were diagnosed by medical professionals with hysteria. The idea of a “normal” non-hysteric woman in the 18th century was emotionally stable, not lazy or irritable. As we know now, the diagnosis of female hysteria in the 18th century was riddled with misogynistic ideology, as were their definitions of what it meant to be a “normal” woman.
Despite our advancements in law, capacity is still used despite its naturally flexible and fluctuating definition. In modern times, capacity is still a social construct disguised as a biological fact, much like the concept of female hysteria in the 18th century. Our definition of capacity is built and developed on a history of eugenic-based medical pedagogy. Before and even after the Lunacy Act, eugenic theorists prevailed in the field of “Idiot Asylums” and paved the way to help construct the idea of our society’s idea of capacity.
With a social construction rooted in eugenics theory and sterilization, why do we continue to use the legal definition with our older population – especially those believed to be more vulnerable than the general population? It is essential to note the history behind capacity, as our modern definition is still affected by past ideologies, which will affect the people the laws intended to control. Our history dictates that those who are incapable or previously called idiots are burdens to society and, therefore, need to be taken care of. This creates a paternalistic foundation for future legislation and social ramifications, such as the older adult population being seen as a burden to society rather than as a participant.
When legislation and society force an identity onto a group, aggravating the effects of their oppression, queer thinking can provide insight because it challenges the limitations academics and lawyers place by using definitions and labels of “normal,” which ultimately affect the lives of our clients, and eventually our own lives as well.55
There is no more significant barrier to learning than the concept of normalcy and the rejection of deviancy, or “queerness”. Individuals who deviate from our ideas of normal are typically viewed in a negative light, such as morally wrong, intellectually deficient, politically incorrect, and even socially inferior.56 Such beliefs are reflected in the lunacy laws from Canada’s past, further establishing that our society has a specific idea of capability that others must attempt to achieve. If they fail to be the “normal”, aka “capable”, they are morally wrong, intellectually deficient, politically incorrect, and socially inferior.
However, by engaging the differences in ourselves and others, these differences will likely be the best teachers. Queering our perception of law can provide insight into a theory of thought that would not have been explored or discovered otherwise.57
Furthermore, Queer Theory looks to move beyond the binaries of identities, which is a valuable tool when addressing a legal issue that affects a large and diverse demographic. The demographic of elders is so varied and non-stagnant that laws need to be corrected to create laws based on a sub-population of the larger group. Those deemed an “elder” by legislation or society may not even subscribe to that identity. Furthermore, older adults with disabilities may experience their disabilities differently, each unique to the other. Generalizing any population, especially those who are more vulnerable, erases the individual identities present in those groups. By using Queer theory, we break away from the idea that the elderly or the older old have to fit into society’s view of being “old”.
Queer Theory states that the more acts and identities are repeated, the more natural and normal they appear.58 By successfully measuring up to society’s definition of ‘normal’ – in this case, capable – individuals can acquire more power and privilege over others who cannot live up to society’s definition of normal.59 Therefore, older adults who achieve our idea of being capable through displaying behaviour society deems normal can retain their self-autonomy and dignity. Whereas older adults show behaviour that is somewhat contrary to the definition of normal, their self-autonomy and dignity are stripped.
Capacity, in law, serves as an effective barrier to autonomy. Legal capability divides the capable from the incapable and the autonomous from the non-autonomous. All of these divisions are based on an individual’s ability to engage, in Ontario’s case, with whether they can appreciate and fully understand their decision. Only on one side, for the incapable, does the law scrutinize the quality of the decision made, as the capable are given the benefit of the doubt that because they are normal, they do not need to have their capacity questioned.
Queering Legal Capacity
What does it mean to queer legal capacity? It entails deconstructing the history of the expression and looking at the typical societal usage of that term. What does our society tell us that capacity is supposed to look like, and how can we alter that perception to capture the endless variants of humans and their capacity?
We begin by looking at the “normal” regime surrounding “capability.” From a legal perspective, society deems someone is legally capable when they can appreciate the consequences of their decisions and understand them completely. However, no example is provided for how one can display one’s understanding or appreciation. Do they have to indicate potential liabilities surrounding their decisions? Will they be willing to appreciate the consequence should something terrible happen, or would the failure lie at the hands of another, burdened by the older adult’s incompetency? These questions need answers, leading to more questions such as, what makes an older adult less capable than a young adult? Will the legal test of capacity fail when used against what society deems to be a healthy, mentally active, young adult? Or would that adult be considered legally incompetent as well?
This article contests that legal capacity and its definition could be more robust and more appropriately applied to the context of the situation in which it is attempting to be used. There can be young adults of sound mind and body yet unable to “appreciate” the consequences of their actions. Is that at the hands of incapability or lack of responsibility? We see this phenomenon in action during end-of-life planning. Often, end-of-life planning and legal capacity assume that the pre-dementia self is better equipped to make decisions than the “demented” self.60
Looking at the regular regime surrounding legal capacity, it must be accepted that capability is flexible and, therefore, requires a flexible understanding. Society is not homogenous, and neither are older adults. Older adults are part of a large demographic with a diverse spectrum of age, gender, sexual orientation, economic status, ethnicity, etc. The sole identifier that keeps older adults within the same demographic is age, and even that ranges drastically that an older adult who is 65 may not identify the same as an older adult who is 80.
Much like the diverse demographic, the definition of legal capacity must include that diversity to be a part of it. Being capable to one person may be defined as making decisions about clothes, where they are, or who they are speaking with. Others may describe it as simply being able to make a reply and answer a question.
Although queering legal capacity can open new avenues for others to explore, there is a problem with attempting to find a definition with Queer Theory. As stated previously, Queer Theory is anti-essentialist; it deconstructs societal norms and descriptions as a way of challenging oppressive institutions. To entirely queer legal capacity, in the most radical sense, would be to discard all laws and ideas of what capacity is. A completely queer concept of capacity would not be able to be defined or made into a test; it would state that the concept of legal capacity does not exist and that capacity is a construct created by institutions to control the actions of those they deem unworthy of making decisions, whether it is because of a mental deficiency, ethnicity, race, income status, gender, or sexuality; all areas that the government and society have attempted to control through ideas of the morally good and morally wrong.
The intention of this paper is not to encourage the removal of the test or legal definition. When used correctly and thoughtfully, legal capacity can benefit those more vulnerable to undue influence or other harm. However, a considerable amount research shows that there are more oppressive usages of legal capacity, seen through elder abuse and neglect, than beneficial usages. Therefore, while serving a valuable role in our judicial system, the definition of legal capacity needs to be altered to acknowledge institutional oppression while providing a resource to protect people who may need that protection.
Objectively speaking, many people struggle; they cannot pay their bills, are exploited for various reasons and do not care for themselves or their surroundings by basic hygiene norms. Moreover, many of these people could be characterized as vulnerable. Is intervention justified on behalf of them all? We know that it does not happen – that no explanatory mechanism has emerged to enable it. Why not? What is unique about the group of people currently characterized as incapable that, as a matter of (non-explicit) social policy, motivates intervention (which is then squared with the autonomy ideal through the theoretical mechanism of incapacity)?
Queering legal capacity entails the acceptance of the word capacity and the connotation it holds. When someone is deemed “incapable”, a multitude of ideas can appear in someone's mind because capacity is personally defined. There is no single answer for what capacity looks like; therefore, that must be accounted for. As with dementia patients or those with a capacity in some areas of their life but not capacity in others, the idea of capability fluctuates. It is essential to acknowledge that a stagnant definition is unhelpful for the elderly population, who are not a homogenous group.
A potential solution is asking the individual what being capable means to them. This allows the person the autonomy to choose for themselves what they feel is the best representation of their most capable selves versus their least capable self. Furthermore, their test can be applied day-to-day or decision-to-decision. It would not be a one-time question, then later disposed; it would have to be a question that always comes up. The person has to be able to fully utilize their rights and self-autonomy by saying: “today I do not feel capable”.
The problem is the need for more trust between the state and the citizen. The paternalistic history of legal capacity laws up to the modern-day has the interest of interfering with the individual by once again fortifying this notion that those who have or do experience incapability are essentially forbidden to make decisions for themselves. In the eyes of the state, proven through the historical background behind incapacity laws, the incapable individual should not be allowed to have autonomy over their decisions, particularly not if that decision includes whether they are capable or incapable.
How do we address this distrust between the state and the individual? Traditional queer theorists would contend that there does not need to be a relationship between the institution of the state and the individual. That capacity is not a concept that should be defined, as it would simply create the binaries of incapable and capable, much like the binaries of gender, male and female. Conventional queer theorists would also contest that the creation of capacity binaries, will only further fuel oppressive regimes by the state: the capable will be able to freely enjoy their rights without restrictions. At the same time, the incapable must forfeit their rights as they are considered vulnerable by the state – even if they may not self-ascribe themselves as helpless.
While traditional Queer Theory cannot be utilized in legislation, some things can be learned from this perspective. For one, there must be a relationship between the institution of the state and the individual, as that is part of retaining citizenship. However, the relationship between the two does not need to be negative or distrustful. Instead, a rapport can be built between the state and the individual through acknowledging self-determination, autonomy, and fundamental rights when decision-making and protecting these rights from those who wish to influence them – even if that means the state itself.
At the center of legal capacity lies dignity, which includes the satisfaction of taking risks.61 If the state interferes every time it feels that someone is making a “bad” decision, once provided with complete information about said decision, then the condition is invidiously infringing on someone’s autonomy. The right to choose should not be given only to those that the state feels can make “good” decisions; it should be given to everyone. It should be up to the individual whether they are willing to give their autonomy away once deemed legally incapable or to retain their independence and keep their dignity to make mistakes, regardless of how detrimental that mistake is. What is so worth protecting that we take away fundamental human rights from citizens to make decisions for themselves?
Further, we can ask whether there needs to be categories of capable and incapable, as they ultimately create binaries that separate “us” from “them.” Without legal capacity, vulnerable individuals may be at higher risk of being harmed. However, with legal capacity, as is shown, when a lawyer does not know the full rights of their legally incapable client, the vulnerability of that client is increased.62 Once more, it should be within the individual’s hands whether they wish to associate with an identity; it should not be forced on them; much like how not all older adults subscribe to the identity of “elder,” we should allow them to choose whether they wish to take the essence of legally incapable.
While it seems radical for an individual who would be, within our societal definition of incapable, capable of making decisions that would create a crisis within their familial systems, there must be a way to weigh the benefits and the negatives. Suppose an older adult understands the risk of rejecting legal capacity tests, such as increasing their vulnerability, and still denies taking a test or being categorized as either capable or incapable. In that case, that the decision should be respected. Further, we should acknowledge and respect that capability is flexible, the definition varies from person to person.
The idea of ‘supported decision-making’ has been recommended as a legal solution to guardianship laws. The idea behind supported decision-making is that the adult who is deemed legally incapable would have an appointed individual to assist them in making their own decisions.63 The idea creates the illusion of an effective solution to the guardianship problem by giving individuals the best of both worlds. However, what will stop the appointed individual from influencing the legally incompetent adult into agreeing with their wishes? What is society’s perception of the lawfully incompetent adult who needs assistance in coming to decisions that affect themselves? The supported decision-making idea/form/plan, on its face, provides a romantic solution to the paternalistic problem. What better way to control someone’s actions than to make them think they concluded themselves, even though there was undue influence?
Supported decision-making brings back the question of why the law and society are so vehemently opposed to older adults, who may be legally incapable of making mistakes. Without the label of older adult, would their capability even be questioned in the first place, or would it be marked up as poor decision making by society? This fundamental question can be answered by trailing back to the history of guardianship laws. I argue that organization controls the legally “incapable” because their actions are deemed burdens on society. The fewer mistakes made in the legal sphere, the fewer resources have to be used to fix those errors. It is an excellent way of not only saving money, but resources, which can be allocated to other pressing areas of law.
This is not to claim that supported decision-making does not have valid points to consider.
Supported decision-making is the first step towards acknowledging that older adults who are deemed legally incapable are still able to make their own decisions. Through that, their autonomy is at least recognized, though respect may differ from case to case. Nevertheless, does supported decision-making address the underlying qualm that Queer Theory has with guardianship laws: does it address the historic and underlying definition that those incapables are burdens and must be controlled to avoid mistakes – like an adult watching over a child?
Capacity is not always an all-or-nothing phenomenon. Rarely is a person completely incapable. Degenerative conditions such as dementia do not justify premature determinations of total incapacity. We have a broader understanding of mental illness today when it is present in a younger adult. However, ageist and paternalistic views still prevail towards older adults beset with forms of dementia. Our assessments need to be less general, label-driven, and more finely tuned and focused on how a person functions in society.64
CONCLUSION
This essay did not aim to find a specific answer to guardianship laws, as various articles have determined that guardianship is a nuanced topic. Guardianship can be observed and analyzed through multiple theories, and the subject of this essay was to examine guardianship through the lens of Queer Theory. Due to the systematic and historical oppression faced by those deemed legally incapable, Queer Theory provides an insight into the undiscussed. It sheds light on an accurate perception of older adults.
Before guardianship laws can advance in this direction, society must first address its desire to control those they feel would burden the general population. This has to be acknowledged in our academic fields before we can begin to build towards a guardianship model that not only gives autonomy to the legally incapable but promotes it while respecting their decision. As a society, we must ask ourselves: why is it okay if I make a mistake and have that mistake respected, whereas an older adult will have their capability questioned?
Academics and legal scholars should continue to use queer ontology in their analysis, as it provides insight into a frame of mind that they may not have considered. When legislations are made that will disproportionately affect a marginalized population, it is essential to consider how these legal identities can interact or even aggravate the complex and historical oppression disadvantaged communities face.
As a recommendation, further examination of guardianship laws should be conducted, by examining their historical usage, their modern-day, and our society’s fluctuating expectations of normal. Further, it would be beneficial to examine how society’s idea of capable affects older adults in different spheres of their lives, such as their private, public, and financial lives.
Elder law can learn much from Queer Theory and thinking. Queer Theory came into existence to serve a population that did not fit into the demographic of second-wave Feminism, namely white, cisgender, and middle class. Queer Theory, thus, was born to address the needs of a demographic that ranged in age, sexual orientation, gender identity, race, and so on, which is why it is an excellent fit for the older adult population once we recognize that elders are not a homogenous group.
Endnotes
1 Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity” (2010), Law Commission of Ontario.
2 Sarah Burningham, “Developments in Canadian Adult Guardianship and Co-Decision-Making Law” (2009) 18 Dal J Leg Stud 119.
6 Statutes of Upper Canada: “An Act to Authorise the Erection of an Asylum within this Province for the Reception of Insane and Lunatic Persons”, 1839, c 11
8 Statutes of Upper Canada: “An Act to Authorise the Erection of an Asylum within this Province for the Reception of Insane and Lunatic Persons”, 1839, c 11
13 Sarah Burningham, “Developments in Canadian Adult Guardianship and Co-Decision-Making Law” (2009) 18 Dal J Leg Stud 119.
15 Carolyn Strange, “Eugenics in Canada: A Checkered History, 1850s-1990s” (2010) Oxford University Press 523.
22 Samantha Backman, “The Right to Legal Capacity for Canadians with Disabilities: A Quest for Dignity, Equality, and Autonomy” (2020) 8:1 McGill Centre for Human Rights and Legal Pluralism.
27 Margaret I Hall, “Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability” (2012) 58:1 McGill LJ 61.
30 Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity” (2010), Law Commission of Ontario.
31 Margaret I Hall, “Mental Capacity in the (Civil) Law: Capacity, Autonomy, and Vulnerability” (2012) 58:1 McGill LJ 61.
37 Sarah Burningham, “Developments in Canadian Adult Guardianship and Co-Decision-Making Law” (2009) 18 Dal J Leg Stud 119.
38 Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity” (2010), Law Commission of Ontario.
40 Michael Bach and Lana Kerzner, ”A New Paradigm for Protecting Autonomy and the Right to Legal Capacity” (2010), Law Commission of Ontario.
43 Jodie Taylor, “Claiming Queer Territory in the Study of Subcultures and Popular Music” (2013) 7:3 Sociology Compass 194.
45 Katherine Watson, “Queer Theory” (2005) 38:1 The Group Analytic Society, 67.
46 Henry L Minton, “Queer Theory: Historical Roots and Implications for Pyschology” (1997) 7:3 Theory & Psychology, 337.
49 Henry L Minton, “Queer Theory: Historical Roots and Implications for Pyschology” (1997) 7:3 Theory & Psychology, 337.
52 A. Brooks & K. Edwards, “For Adults Only: Queer Theory Meets the Self and Identity in Adult Edcation” (1999), Adult Education Research Conference
53 Jodie Taylor, “Claiming Queer Territory in the Study of Subcultures and Popular Music” (2013) 7:3 Sociology Compass 194.
54 Peter Bartlett, “The Poor Laws of Lunacy: The Administration of Pauper Lunatics in Mid-Nineteenth Century England with special Emphasis on Leicestershire and Rutland” (1993) University of London.
55 A. Brooks & K. Edwards, “For Adults Only: Queer Theory Meets the Self and Identity in Adult Edcation” (1999), Adult Education Research Conference
58 Jodie Taylor, “Claiming Queer Territory in the Study of Subcultures and Popular Music” (2013) 7:3 Sociology Compass 194
60 Alexandre Baril
et al “Forgotten Wishes: End-of-Life Documents for Trans People with Dementia at the Margins of Legal Change” (2020) 35 No. 2 Can. J.L. & Soc’y 367.
62 Lise Barry, “‘He was wearing street clothes, not pajamas’: common mistakes in lawyers’ assessment of legal capacity for vulnerable older clients” (2018) 21:1 Legal Ethics, 3-22
63 Doug Surtees, “How Goes the Battle? An Exploration of Guardianship Reform” (2012) 50:1 Alberta Law Review, 116.
64 Ann Soden, “Beyond Incapacity” (2011) 5 McGill J.L & Health 295.