B.C. Adult Guardianship Legislation Update
The British Columbia Government has proclaimed most of the Adult Guardianship legislation to be in force on February 28, 2000. In July, 1993, the British Columbia Legislature passed four Acts that will significantly reform adult guardianship law in that Province. These are: the Representation Agreement Act, the Adult Guardianship Act, the Health Care (Consent) and Care Facility (Admission) Act and the Public Guardian and Trustee Act,. The Adult Guardianship Amendment Act makes a number of significant changes to the four Acts that are examined below:
Representation Agreement Act
The Act sets out procedures for the creation, execution and challenge of a Representation Agreement, including the requirement of registration. The Act allows for the later "triggering" of the agreement by a subsequent event such as incapability and allows for the appointment of a representative for personal care issues. As well, the Act lowers the level of capability needed to enter into a "standard" Representation Agreement (which would cover most day to day financial affairs and minor health care issues) to something less than the capacity to enter into a contract.
The most significant change is that there is not going to be a Registry so all sections of the Act dealing with the requirement of registration have been amended or not proclaimed. It appears the government was not prepared to finance the cost of a Registry. A private registry service has been developed through the Representation Agreement Resource Centre: www.rarc.ca
The second major change is in response to concerns of some people that further protection from potential abuse was necessary if there was not going to be a Registry. Therefore, in order to make a standard Representation Agreement, a person must appoint a Monitor. If they do not appoint a Monitor, the Public Trustee may choose someone or become the Monitor by default.
The section requiring the Representatives to be present when the Representation Agreement is created has been eliminated.
All Enduring Powers of Attorney and Representations Agreements made before proclamation will be grand fathered. Enduring Powers of Attorney will continue to be allowed.
Regulations have been developed in regard to defining the powers of a standard representative.
Adult Guardianship Act
There are two aspects to the Adult Guardianship Act. One part contains provisions to deal with abuse and neglect of adults. If a report is made to a designated, local, community-based agency, an investigation is conducted, a plan formulated and a court order obtained or support services arranged.
The second aspect of the Act is the court appointment of a substitute decision maker for an incapable adult. The Act creates a process that requires a comprehensive investigation into a patient's situation and results in a Court Order specifically dealing with the patient's circumstances, i.e. restricted powers, limited time, subject to review, etc. All existing committees appointed under the Patients Property Act will eventually have to re-apply to Court for a new Order.
Part Two of the Act, which is the replacement for the Patients Property Act, has not been proclaimed at this time. It is anticipated that a revised guardianship procedure (read more economical) will be developed in the near future.
In the meantime, amendments to the Power of Attorney Act and the Patient's Property Act will allow for Enduring Powers of Attorney and Representation Agreements to continue to have effect in certain circumstances even if a Certificate of Incapability is issued for a person.
Health Care Consent and Care Facility Admission Act
This Act codifies the requirement that consent be obtained from or on behalf of a patient for medical treatment or admission to a care facility. It also sets out the hierarchy of consent.
Part Three of the Act which deals with the admission to a care facility has not been proclaimed at this time.
Public Guardian and Trustee Act
This Act reconstitutes the British Columbia Office of the Public Trustee as the "Public Guardian and Trustee". Changes include the setting up of an Advisory Board.
Virtually the whole Act is being proclaimed, except for certain provisions regarding the evaluation process.
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