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The New Adult Guardianship Legislation

The new adult guardianship legislation has now been proclaimed. The long delayed and much debated legislation package is made up of four new acts: The Representation Agreement Act, The Adult Guardianship Act , Health Care (Consent) and Care Facility (Admission) Act , and the Public Guardian and Trustee Act. Together these acts were intended by well meaning legislators to provide for British Columbians, a whole new approach to management of their personal affairs by another party. Previously, we faced a choice between a very simple and inexpensive Enduring Power of Attorney, which was open to possible abuse, and a complicated and expensive but very secure court application under the Patient's Property Act. The new legislation attempted to provide a secure method of appointing a representative without the expense of a court application, and to extend to persons presently under diminished capacity, the ability to express their wishes with respect to their personal affairs.

While the goals were certainly laudable and some additional protection necessary, the implementation, in our opinion, leaves a great deal to be desired. Unfortunately, the new legislation attempts to set up such a complicated regime that only a small portion of it has actually been proclaimed. Even though our government passed these acts in 1993 and they have been thrashing them over for almost seven years, what they have given us today is a piecemeal implementation, which lacks the simplicity that should have been achieved after so much discussion.

The Representation Agreement Act

Previously, we were able to appoint a personal representative using a simple, one page, Enduring Power of Attorney, prepared at a very reasonable cost. Originally, the legislation provided that, as of September 5, 2000, the section of the Power of Attorney Act which permitted the insertion of the "Enduring" clause will be revoked. The Government has now extended that date to September 5, 2001.

It is important to note that existing Enduring Powers of Attorney will remain fully valid. While it will no longer be possible, after September 5, 2001, to grant a new Enduring Power of Attorney, existing Enduring Powers of Attorney will remain in full force and effect. Regular, non enduring, Powers of Attorney, those normally used for business purposes which do not contain the "enduring" clause, will continue to be used for business transactions, but they will automatically become void if the person granting them becomes incapable of handling his or her affairs.

The Representation Agreement Act provides for two types of Representation Agreements:

The first type of Representation Agreement is an improperly named "Standard Representation Agreement", intended for persons presently under diminished capacity, which provides for a bare minimum level of authority to handle only those specific tasks and "routine financial affairs" of an incapacitated person as are specifically permitted in the legislation, with virtually no discretion allowed. This Standard Representation Agreement requires the mandatory appointment of a second person known as a "Monitor", to watch over the actions of the Representative to prevent abuse. This type of agreement was designed to allow persons presently under a disability to have more control over their affairs by appointing a personal representative, therefore a Standard Representation Agreement can be entered into by persons of moderately diminished capacity, who nevertheless, understand their personal situation and wish to have a say in their personal affairs.

The Second type of Representation Agreement is intended for persons of full capacity and is termed an "Enhanced Representation Agreement". This agreement allows the Representative much wider authority, with grantor specified discretion and decision making powers. Due to its broad powers, an Enhanced Representation Agreement must be prepared by a Lawyer to ensure that the grantor has been given full and complete legal advice. This Enhanced Representation Agreement, in essence, replaces the currently used Enduring Power of Attorney. While a Monitor may be appointed, it is not mandatory and it is very unlikely that Monitors will be frequently used in Enhanced Representation Agreements.

Unfortunately, in its efforts to protect people from the possible abuse of a Power of Attorney, the new legislation prohibits the granting of a general power to make decisions for the grantor. We can no longer appoint someone "to do anything that I can lawfully do by an attorney". Instead we are required to canvass each grantor's individual needs and wishes and then insert a careful recital of each specific power that the Representative is to have.

To make matters worse, everyone involved in the process, the grantor, the lawyer, the witnesses and the representative(s) appointed are required to sign certificates of compliance with the act. The result is a lengthy document that few will think of as simple and most will criticize as impractical and unnecessarily expanded into a major legal project.

On the more positive side, there is an excellent improvement in making your Health Care Wishes known and binding. Both the Standard and the Enhanced Representation Agreements offer the Grantor an opportunity at last to set out legally binding instructions with respect to future medical care. The legislation provides clear legalization of a person’s right to specify the nature and kind of future medical care they will allow to be given to them at a time when they cannot make the decision personally, including the right to refuse medical treatment, directions which have, up to now, been given in quasi-legal, not necessarily binding, "Living Wills".

Adult Guardianship Act

Although the Adult Guardianship Act was intended to deal with adult guardianship, those provisions dealing with court ordered guardianship have not yet been proclaimed, therefore, the Patients Property Act will continue to be used for cases where a patient's affairs need to be properly handled and no Enduring Power of Attorney or Representation Agreement exists. On application under that act, the courts will order the appointment of a "Committee" for an incapacitated patient whenever it is required.

The Adult Guardianship Act does however provide important protection and assistance for adults who may be subject to abuse or who may be neglected. The Public Trustee is empowered to receive reports from the public regarding such persons, either directly or through various approved agencies and to investigate each situation reported to them. In appropriate cases, protection for the adult person may be ordered by the court.

Health Care (Consent) and Care Facility (Admission) Act

These acts permit a person to legally refuse to consent to health care on moral, religious or other grounds, without regard to the consequences, and also establish the procedure for providing emergency health care to a person who cannot provide the usual consent, including a hierarchy of persons who can give consent for the patient, if the Patient cannot consent himself.

Public Guardian and Trustee Act

This act gives some wider powers to the Public Trustee in the delivery of services to persons who may be under disability. The Public Trustee now becomes the "Public Guardian and Trustee".

There has been much discussion in professional circles for years over this legislation. Although passed in 1993 these acts could not be proclaimed because there was no infrastructure to implement such a grand overall plan. What has finally been proclaimed is only a portion of what was originally provided for in the acts. For anyone reading the acts, it is important to be aware of which sections are in force and those which are not yet proclaimed. Additional material can be found at the Public Guardian and Trustee's website.

For a more detailed explanation of the new adult guardianship legislation, please consult your lawyer

  For more information, Call Bob Bassett or Barry Porrelli  at 250-768-5152      

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No written page can replace the advice of a competent professional. Bassett & Company is pleased to provide this Article as a convenience to our visitors and prospective clients. This information is not to be relied upon as legal advice. Any information obtained through these pages should be verified independently by consultation with a lawyer. No solicitor client relationship shall be created as a result of obtaining this information and Bassett & Company shall not be responsible for errors or omissions in any material so obtained.

Last Update: 07/23/03
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