Adult Guardianship Act (AGA) 2.1: Changes to the Certificate of

Incapability Process

Presentation to BC Cancer Agency – Psychosocial Oncology

February 19, 2015 Amanda Brown, React Adult Protection Program

Kevin Coughlin, Public Guardian and Trustee

Agenda

Adult Guardianship in British Columbia Getting to Statutory Property Guardian (SPG)

Assessing for Incapability under Part 2.1 of

the Adult Guardianship Act

Rights Advice and Notifications

Impact on BC Cancer Agency

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Adult Guardianship Legislation

Representation Agreement Act Health Care (Consent) and Care Facility

(Admission) Act

Adult Guardianship Act ◦ Part 3 – Abuse & Neglect Provisions ◦ Part 2.1- Statutory Property Guardianship

Public Guardian and Trustee Act

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New

Boot Camp for Quarterbacks 4

Overview of the Statutory Property Guardianship Process •Case Managers, Social Workers, Mental Health Clinicians, Designated Responders and any staff who may be involved in determining need, consulting with PGT, stewarding the process, coordinating assessments and providing rights notifications to adults and their families.

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Determining the Need

Investigate

Health Authority

PGT

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Informal Options

Pension Trustee

Enduring POA RA7 CoE SPG

Test of Incapability

None: Presumed capable

Voluntary: None

Involuntarily: ISP Certificate of Incapability

Yes - Medical &

Legal

Yes – Medical &

Legal

Yes – Supreme

Court Affidavits

Yes – Assessment under Part 2.1 of AGA

Statute None

Canada Pension Plan or Old Age

Pension Plan

Power of Attorney Act

Rep. Agreement

Act

Patients Property

Act

Adult Guardianship

Act

Authorized Actions

• Access bank account

• Set- up direct debits

• Manage Federal ISP Benefits (OAS, GIS, CPP)

• Manage financial and legal affairs

• Manage property

• Manage routine financial and legal affairs

• Manage financial and legal affairs

• Manage property

Guiding Principles

Presumption of Capability

Right to Self Determination

Court as a Last Resort

Just Enough Support

Green Light 9

Prior to conducting a formal assessment, the PGT and Health Authority have determined that there are no other appropriate alternatives and the green light is given to go ahead.

Following this point in time all assessments must be completed to a standard by duly qualified assessors.

What is a SPG/Committee of Estate?

PGT makes

financial and legal decisions

Committee of Estate

Statutory Property Guardian

Snapshot: Assessment and Investigation Services (AIS)

11 Regional Consultants Centralized admin services 1400 referrals per year – PGT becomes Committee of Estate for approximately 350

Investigate allegations of abuse, neglect or self neglect

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Adult May be

Incapable

Risk to

Assets

No Other Person

Public Guardian and Trustee Investigation

The PGT (under the PGT Act) and/or health authority (under the Adult Guardianship Act, Part 3) may: Interview the adult, their spouse, family, friends, care facility

staff, health authority staff Obtain reports about an adult’s health, personal, legal or

financial affairs Gather information from the adult’s bank, doctor, landlord,

lawyer

The PGT has broader authority to obtain financial records including: Asking a substitute decision maker (POA, RA, Trustee) to

provide a financial accounting Obtaining reports about the adult’s financial situation from the

adult’s bank, credit union or investment advisor

What happens during an investigation?

Adult is capable

Adult is able to make EPOA or

RA7

Informal supports are

sufficient

Adult is referred to appropriate

services

SDM now complying

Someone else able to assist

Certificate of Incapability is

warranted

Investigation Outcomes

The purpose of an incapability assessment under Part 2.1 of the Adult Guardianship Act is to determine whether an adult is incapable of managing his or her financial affairs.

Purpose of the Assessment

One Assessment

Functional Component

Medical Component

Assessment of Financial Incapability

Only medical practitioners (physicians) can conduct the medical component of the assessment. Physicians are the only ones who can conduct both the medical and functional components of the assessment. A qualified health care provider can conduct the functional component of the assessment. To be considered qualified for this purpose a health care provider must: be a registered social worker, registered nurse, registered psychiatric

nurse, registered occupational therapist or registered psychologist, and

meet the standards, limits and conditions established by their college to act as qualified health care provider

complete MOH course Support from Health Authority

Who Can Conduct the Assessment?

An adult is incapable of managing their financial affairs if, in the opinion of a qualified health care provider, any of the following apply:

The adult cannot: understand the nature of their financial affairs understand the decisions that must be made or the actions that must

be taken to manage their financial affairs understand the risks and benefits of making or failing to make

particular decisions understand that the information referred to in this subsection applies

to the adult demonstrate that he or she is able to implement, or to direct others to

implement, the decisions or actions about their financial affairs

Test of Incapability – AGA 2.1

The qualified health care provider is required to inform the adult of the results of the assessment. They must Advise the adult of the details and the results of the assessment including

the determination Offer the adult a copy of the report and attachments The qualified health care provider informs the adult of the results of the assessment unless they have reason to believe that providing the information may result in serious physical or mental harm to the adult or significant damage or loss to the adult’s property.

Inform the Adult of the Results

The Health Authority Designate is responsible for making a decision about whether or not to issue a

certificate of incapability.

This is not a decision that should be made lightly. Once a certificate of incapability is issued the adult loses their ability to make financial decisions which

means a loss of independence and autonomy.

Role of the Health Authority Designate

Second Assessment and Reassessment

Assessment

Second Assessment

Reassessment

Within 40 days of notice that the PGT is statutory

property guardian

Any time after the second assessment

PGT and health authority consult

Reassessment must occur if:

Court orders a reassessment

PGT informs health authority that a

reassessment is needed

Adult requests reassessment and has not

been reassessed in previous 12 months

Reassessment

Second Assessment or Reassessment – Best Practices

Generally, the health authority that will assist in facilitating the assessment is the health authority in the area where the adult is living.

PGT and health authority staff will consult with one another to determine the best manner to proceed in facilitating the assessment.

A second assessment is similar to obtaining a second opinion.

The QHCP(s) conducting the second assessment or reassessment should review the prior assessment information.

∗ Legislated notification and rights to review ∗ Standardized assessments by QHCPs ∗ All Committees now obliged to follow same

set of principles – duty to foster independence and include adult in decisions that affect them

Benefits of Changes to AGA 2.1

∗ No expected increase of referrals ∗ Consider involvement of other designated

agencies ∗ PHSA Health Authority Designates: ∗ Dr. Johann Brink ∗ Barbara Lohmann

∗ Contact Dr. Tristin Wayte for more information ∗ (604) 524-7700 ext. 336012

Impact on BC Cancer Agency

Resources

http://www.trustee.bc.ca/reports-and-publications/Pages/certificate-of-incapability-guidelines.aspx

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Thank you

& Questions?