Adult Guardianship Law Overhauled

Adult guardianship legislation that was pending for years came into force on February 28, 2000. The legislation gives adults more power to determine their future and provides more support and protection for those who are vulnerable to abuse or no longer capable of making their own decisions.

Four acts make up the adult guardianship legislation. They are summarized below:

Representation Agreement Act
The Representation Agreement Act allows adults to make representation agreements permitting a representative to make important life decisions. Representatives can be given authority to make decisions about personal care, health care, and legal and financial affairs, should the adult become mentally incapable. A monitor can be named to oversee the activities of the representative.

A representation agreement can be customized. Simple agreements authorizing a representative to look after routine financial affairs may be completed and signed without the involvement of a lawyer. Agreements containing specific and more complex decisions (for example, authorizing a representative to refuse to consent to life support treatment or to manage a business) will require prior consultation with a lawyer or qualified paralegal.

Representation agreements will replace enduring powers of attorney. Existing enduring powers of attorney will remain valid, but these only authorize a person to manage someone else’s financial affairs; they do not authorize people to make health or personal care decisions. It will not be possible to make enduring powers of attorney after September 5, 2000, when section 8 of the Power of Attorney Act will be repealed (this date has been extended to September 5, 2001). Ordinary (or commercial) powers of attorney can still be made, but they become void if the person becomes mentally incapable.

Representation agreements will provide a type of “living will”. Some people have prepared living wills to express their wishes regarding life support and health care should they not be able to communicate their wishes at the time, but such documents were not legally effective in B.C.

Adult Guardianship Act
The Adult Guardianship Act promotes the coordination of support and assistance for abused or neglected adults. It authorizes the Public Trustee to designate various agencies to receive reports about, and arrange assistance for, such persons. These agencies also have the power to undertake comprehensive inquiries after receiving a report.

Provisions of the Adult Guardianship Act dealing with court ordered decision-making will not come into force at this time. As a result, the Patients Property Act will remain in force, which provides for the court ordered appointment of a committee for someone who is incapable.

Health Care (Consent) and Care Facility (Admission) Act
The health care consent provisions of this act confirm existing common law and customary practices concerning health care decision-making. The act confirms an adult’s right to refuse to consent to health care on moral, religious or other grounds regardless of the consequences.

It also sets out:
· The circumstances under which health care can be provided without consent (for example, in emergencies when the patient is incapable of making a decision)
· The rules for obtaining consent
· The procedure for obtaining consent from a patient’s family when the patient is incapable and no representative has been appointed.

Public Guardian and Trustee Act
This act changed the name “Public Trustee” to “Public Guardian and Trustee”, and created an advisory board and new investment powers for the Public Guardian and Trustee. It also clarified and improved the ability of the Public Guardian and Trustee to deal with cases where individuals are financially abused.

These four acts were passed in 1993 but not proclaimed because they would have cost the government $12 million a year to implement and administer. After years of review and consultation, the legislation has been substantially pared down and will cost about $2.8 million a year to administer.