Bill 32:Bill 32:Close But No CigarClose But No Cigar

16th AnnualJohn K. Friesen Conference

Simon Fraser UniversityMay 12, 2006

The Next Round of Guardianship Law Reform

ContextContext Late 1980s law reform initiativeLate 1980s law reform initiative 1993 package1993 package Stevenson/HogarthStevenson/Hogarth Phased approachPhased approach

1999 amendments1999 amendments Selective proclamationSelective proclamation

Post proclamation amendment to the Post proclamation amendment to the Representation Agreement ActRepresentation Agreement Act

McClean reportMcClean report 2002 health care consent amendments2002 health care consent amendments BCLI reportsBCLI reports PGT’s recommendation for court and PGT’s recommendation for court and

statutory guardianship reform (2004, 2005)statutory guardianship reform (2004, 2005) Consultations in 2004 and 2006Consultations in 2004 and 2006

Structure of Bill 32Structure of Bill 32 Part 1 – Part 1 – Adult Guardianship ActAdult Guardianship Act Amendments Amendments

A new Part 2 (court appointed guardians)A new Part 2 (court appointed guardians) A new Part 2.1 (statutory property A new Part 2.1 (statutory property

guardianship)guardianship) Amendments to Part 3 (support and Amendments to Part 3 (support and

assistance for abused and neglected adults)assistance for abused and neglected adults) Amendments to Part 4 (administrative and Amendments to Part 4 (administrative and

miscellaneous)miscellaneous)

Structure of Bill 32 (cont’d)Structure of Bill 32 (cont’d)

Part 2 – Planning Statutes AmendmentsPart 2 – Planning Statutes Amendments Amendments to Amendments to Health Care (Consent) and Health Care (Consent) and

Care Facility (Admission) ActCare Facility (Admission) Act A new Part 2 of the A new Part 2 of the Power of Attorney ActPower of Attorney Act Amendments to the Amendments to the Representation Representation

Agreement ActAgreement Act

Structure of the Bill (cont’d)Structure of the Bill (cont’d)

Part 3 – Transition, repeals and Part 3 – Transition, repeals and consequentialsconsequentials Repeal of the Repeal of the Patients Property ActPatients Property Act Consequential amendments to other lawsConsequential amendments to other laws

PERSONAL PLANNINGPERSONAL PLANNING

CHANGESCHANGES

UNDER BILL 32UNDER BILL 32

Health Care ConsentHealth Care Consent

Most controversial aspect of Bill 32 Most controversial aspect of Bill 32 was instructional advance directives:was instructional advance directives: Extension to non-emergency treatmentExtension to non-emergency treatment AcknowledgementsAcknowledgements Declining to actDeclining to act Interaction with personal guardian or Interaction with personal guardian or

representativerepresentative

Health Care Consent (cont’d) Health Care Consent (cont’d)

Bill 32 would have:Bill 32 would have: Added more individuals to TSDM ranked list:Added more individuals to TSDM ranked list:

GrandparentsGrandparents Close friendClose friend In-lawsIn-laws Religious office holderReligious office holder

Clarified substitute’s role regarding post-Clarified substitute’s role regarding post-emergency withdrawal of treatment that was emergency withdrawal of treatment that was started in an emergency started in an emergency

Clarified best interests considerations and Clarified best interests considerations and interaction with values and beliefsinteraction with values and beliefs

Enduring Powers of AttorneyEnduring Powers of Attorney

Bill 32 would have:Bill 32 would have: Made enduring powers of attorney the primary instrument for Made enduring powers of attorney the primary instrument for

planning for future incapacity (McClean Report)planning for future incapacity (McClean Report) Enduring Powers of Attorney prevailed if conflict or inconsistency Enduring Powers of Attorney prevailed if conflict or inconsistency

with property representation agreementwith property representation agreement Created capacity test that includes specific criteria that must be metCreated capacity test that includes specific criteria that must be met May “continue” or “spring”May “continue” or “spring” ExecutionExecution

Two witnesses (only 1 if a lawyer or notary)Two witnesses (only 1 if a lawyer or notary) Prohibited witnessesProhibited witnesses Attorney must sign before actingAttorney must sign before acting

DutiesDuties GiftingGifting

Enduring Powers of Attorney Enduring Powers of Attorney (cont’d)(cont’d)

Clarified terminationClarified termination ResignationResignation RevocationRevocation SuspensionSuspension TerminationTermination

Mandated PGT to review allegations of Mandated PGT to review allegations of misconductmisconduct

Expanded Court orders to give directions Expanded Court orders to give directions Clarified status extra-provincial enduring powers Clarified status extra-provincial enduring powers

of attorneysof attorneys

Representation Agreement Representation Agreement AmendmentsAmendments

Bill 32 would have:Bill 32 would have: Property matters limited to routine financial by Property matters limited to routine financial by

removing property matters from s.9 agreements removing property matters from s.9 agreements (McClean report)(McClean report)

Permitted a regulation to “cap” amount of money Permitted a regulation to “cap” amount of money that can be managed routinely under s.7that can be managed routinely under s.7

Increased accessibility by eliminating mandatory Increased accessibility by eliminating mandatory consultation with lawyer for s.9 agreementsconsultation with lawyer for s.9 agreements

If both valid representation agreement and If both valid representation agreement and advance directive - representation agreement advance directive - representation agreement prevailsprevails

COURT AND STATUTORY COURT AND STATUTORY GUARDIANSHIPGUARDIANSHIP

CHANGES UNDERCHANGES UNDER

BILL 32BILL 32

Court GuardianshipCourt GuardianshipBill 32 would have:Bill 32 would have: New court and statutory guardianship law to replace the New court and statutory guardianship law to replace the Patients Patients

Property ActProperty Act Court guardianship applicationCourt guardianship application

ServiceService Plain language documentPlain language document Guardianship plansGuardianship plans MediationMediation

What must be demonstrated:What must be demonstrated: IncapacityIncapacity Decisions neededDecisions needed Guardians assistance and protection required Guardians assistance and protection required Alternatives are insufficientAlternatives are insufficient

Balance of personal and propertyBalance of personal and property Individualized ordersIndividualized orders

Court Guardianship (cont’d)Court Guardianship (cont’d) Duties enumerated in Act, some existing but some new:Duties enumerated in Act, some existing but some new:

Foster independence of adultFoster independence of adult PrivacyPrivacy Comply with instructions made when capableComply with instructions made when capable Gifting rulesGifting rules Consider Code of PracticeConsider Code of Practice Ties to Ties to Health Care (Consent) and Care Facility (Admission) ActHealth Care (Consent) and Care Facility (Admission) Act

decision makingdecision making Court reviewsCourt reviews

Flexible – not fixed datesFlexible – not fixed dates Court may establish review date or on application by:Court may establish review date or on application by:

GuardianGuardian AdultAdult OthersOthers PGTPGT

No hearing required if no objection filedNo hearing required if no objection filed Hearing if objection filedHearing if objection filed

Statutory Property GuardianshipStatutory Property GuardianshipUnder Bill 32:Under Bill 32: No longer tied to No longer tied to Mental Health ActMental Health Act Largely moves PGT 2004 guidelines on Certificates of Largely moves PGT 2004 guidelines on Certificates of

Incapability from “best practice” into lawIncapability from “best practice” into law Certificate effective when signed by PGTCertificate effective when signed by PGT No statutory guardianship if enduring Power of Attorney No statutory guardianship if enduring Power of Attorney

granted unless Attorney not complying with dutiesgranted unless Attorney not complying with duties Enduring Power of Attorney suspended and may be Enduring Power of Attorney suspended and may be

terminatedterminated Adult has right to 2Adult has right to 2ndnd assessment and to court review assessment and to court review PGT required to give the adult rights advicePGT required to give the adult rights advice Termination eased where no longer neededTermination eased where no longer needed

Statutory Property Guardianship Statutory Property Guardianship (cont’d)(cont’d)

Reassessment required:Reassessment required: On dischargeOn discharge Annually on requestAnnually on request

Private person may apply to replace PGT as Private person may apply to replace PGT as statutory property guardian statutory property guardian

Guardianship plan requiredGuardianship plan required If application suitable, PGT may: If application suitable, PGT may:

Require securityRequire security Establish remunerationEstablish remuneration

Rescind appointment where necessaryRescind appointment where necessary

Guardians Appointed Outside BCGuardians Appointed Outside BCBill 32 would have required:Bill 32 would have required: Where the adult remains a resident of the Where the adult remains a resident of the

originating jurisdictionoriginating jurisdiction Guardian from another province may register an Order Guardian from another province may register an Order

under the under the Enforcement of Canadian Judgments and Enforcement of Canadian Judgments and Decrees ActDecrees Act

Not supervised by the BC Public Guardian and TrusteeNot supervised by the BC Public Guardian and Trustee Replaces current OIC processesReplaces current OIC processes The Public Guardian and Trustees in other Provinces The Public Guardian and Trustees in other Provinces

have automatic authorityhave automatic authority Non-Canadian Orders from prescribed jurisdiction Non-Canadian Orders from prescribed jurisdiction

may be confirmedmay be confirmed

Guardians Appointed Outside BC Guardians Appointed Outside BC (cont’d) (cont’d)

Where the adult moves to BCWhere the adult moves to BC The Order may be converted by the BC Court The Order may be converted by the BC Court

into an into an Adult Guardianship Act OAdult Guardianship Act Orderrder Once confirmed, the Once confirmed, the Adult Guardianship ActAdult Guardianship Act

applies, including:applies, including: PowersPowers DutiesDuties Passing of accounts and court reviewsPassing of accounts and court reviews

ABUSE, NEGLECT ABUSE, NEGLECT

AND AND

SELF-NEGLECT RESPONSESELF-NEGLECT RESPONSE

CHANGES UNDERCHANGES UNDER

BILL 32BILL 32

Improved Response in Cases of Improved Response in Cases of Abuse and Neglect Abuse and Neglect

Bill 32 would have:Bill 32 would have: Strengthened ability to keep confidential the Strengthened ability to keep confidential the

identity of person reporting abuseidentity of person reporting abuse Extended:Extended:

Interim restraining orders from 30 to 90 days;Interim restraining orders from 30 to 90 days; Support and assistance orders from 6 months to 1 Support and assistance orders from 6 months to 1

yearyear PGT’s asset protection powers from 7 to 30 daysPGT’s asset protection powers from 7 to 30 days

Temporary property guardianship up to 90 daysTemporary property guardianship up to 90 days

TRANSITION TRANSITION

AND AND

CONSEQUENTIAL CONSEQUENTIAL AMENDMENTSAMENDMENTS

CHANGES UNDER CHANGES UNDER

BILL 32BILL 32

23 Other Acts Amended23 Other Acts Amended Bill 32 would have updated language to Bill 32 would have updated language to

guardian from committee but also to guardian from committee but also to recognize attorneys and representativesrecognize attorneys and representatives

Notable others:Notable others: Court Rules ActCourt Rules Act Estate Administration ActEstate Administration Act Notaries ActNotaries Act

So What’s Next?So What’s Next?