Finding similarities and differences in Finnish and British Columbian legal systems
6 August 2019
By Kathleen Cunningham
From May 28 to June 12, 2019, the Canadian Centre for Elder Law was pleased to host visiting scholar Katja Karjalainen, LL.D. from the University of Eastern Finland. In the blog post that follows she discusses her experiences as she begins the comparison of our two jurisdictions’ approach to what we know in BC as enduring powers of attorney and representation agreements made under s. 7 of the Representation Agreement Act.
By Katja Karjalainen, LL.D. University of Eastern Finland
I am employed by a multi-disciplinary research consortium “Dementia or mild cognitive impairment: @ work in progress”. One part of the project is a comparative study between the relevant legislations in Finland, Sweden and Canada. Thus, I ended up visiting the University of British Columbia and the Canadian Centre for Elder Law.
After landing in Vancouver, recovering from a 10-hour time-difference and walking around beautiful beaches, I felt slightly overwhelmed and insecure. What shall I really compare? How am I able to understand even basics of common law, a system so unfamiliar to a civil law lawyer like me? What difference does it make? What I have learned from my comparative research is that you cannot plan everything ahead. Research findings are always surprising. You should remain very open-minded, calm and just try to gradually gain some understanding of foreign legal thinking. These past experiences have been also confirmed obvious during my visit to the University of British Columbia.
The legal research I am conducting focuses on two diverging themes: on the one hand, private mandates in case of diminished capacity to act and on the other hand, reasonable accommodations in working life. Both are relevant from the perspective of the UN Convention on the Rights of Persons with Disabilities. In the following, I make a few preliminary observations on the findings regarding private mandates that I made during the time I spent in Canada.
When comparing the Finnish Continuing Power of Attorney (hereinafter ‘CPA’, in Finnish: ‘edunvalvontavaltuutus’) with British Columbian enduring power of attorney (hereinafter ‘EPA’) and innovation Representation agreement (hereinafter ‘RA’), two different aspects should be highlighted.
First, the capacity requirements of an adult giving powers of representation are worth noting. The requirements of capacity set in the Finnish Act on CPA seem to be somewhere in the middle of the capacity requirements of the British Columbian EPA and RA. In the Finnish system, an adult is capable to give a CPA if she understands its meaning at the moment of decision-making. The capacity is then bound to the legal act itself and the content of the given legal instrument. The common law the test of capacity used in British Columbia is more strict, as the requirements seem to extend the scope of the legal instrument itself. The British Columbian RA, is in principle, based on a similar premise as the Finnish CPA which relates to an adult’s understanding of the specific provisions and powers that she is giving. However, RA favors capacity and gives it high importance. Its specific provisions are meant expressly to support capacity. Thus, the way the capacity is understood and supported in the RA does not correspond the understanding in the Finnish CPA.
Second, the safeguards relating to the use of mandates have been scrutinized much more in British Columbia than in Finland. The tradition of using private mandates in case of diminished capacity to act is much longer in British Columbia than in Finland. Thus, it can be claimed that perhaps more problems have emerged in British Columbia. The Finnish CPA is still a relatively new instrument. The Act on CPAs came into force in 2007. Thus, just in recent years, we have started to have CPAs in use. Financial elder abuse has not yet raised public attention in Finland. In addition to that, it must be kept in mind that the distinctive character of Nordic societies is that they are based on something which could be called high mutual trust. This is visible also in relation to the law. In the Nordic countries, there are no notaries which would draft legal documents as documents can be drafted (in theory) without any legal assistance. Moreover, form requirements are relatively loose and can be – officially or unofficially – interpreted in favor of validity.
To sum up, my journey towards understanding common law, especially the Canadian legal system, has only begun. However, the research visit at the Canadian Centre for Elder Law has provided me with new insights for further research. I did arrive back home with new ideas and contacts.
The visit assured me that the comparative research of private mandates in case of diminished capacity to act is definitely worth conducting. Different legal systems have very different approaches towards promoting personal autonomy and self-determination of adults who do not have full decision-making capacity but the need to respect personal autonomy is universal. Moreover, as we observe a major paradigm shift – a changing mentality towards perceiving persons with diminished capacity as actors instead of objects of protection, researchers and practitioners in different countries can learn a lot from each other.
I would like to thank Executive Director Kathleen Cunningham for guiding me in the right direction and the British Columbia Law Institute and Canadian Centre for Elder Law for hosting me as a visiting scholar. In addition to that, I also wish to thank my employer – Law School of the University of Eastern Finland and the MCI@work project for giving me the possibility to explore the world. All mistakes and misinterpretations are of course my own.