Bill 32: Close But No Cigar 16 th Annual John K. Friesen Conference Simon Fraser University May 12, 2006 The Next Round of Guardianship Law Reform

Context  Late 1980s law reform initiative  1993 package  Stevenson/Hogarth  Phased approach  1999 amendments  Selective proclamation  Post proclamation amendment to the Representation Agreement Act  McClean report  2002 health care consent amendments  BCLI reports  PGT’s recommendation for court and statutory guardianship reform (2004, 2005)  Consultations in 2004 and 2006

Structure of Bill 32  Part 1 – Adult Guardianship Act Amendments  A new Part 2 (court appointed guardians)  A new Part 2.1 (statutory property guardianship)  Amendments to Part 3 (support and assistance for abused and neglected adults)  Amendments to Part 4 (administrative and miscellaneous)

Structure of Bill 32 (cont’d)  Part 2 – Planning Statutes Amendments  Amendments to Health Care (Consent) and Care Facility (Admission) Act  A new Part 2 of the Power of Attorney Act  Amendments to the Representation Agreement Act

Structure of the Bill (cont’d)  Part 3 – Transition, repeals and consequentials  Repeal of the Patients Property Act  Consequential amendments to other laws

PERSONAL PLANNING CHANGES UNDER BILL 32

Health Care Consent  Most controversial aspect of Bill 32 was instructional advance directives:  Extension to non-emergency treatment  Acknowledgements  Declining to act  Interaction with personal guardian or representative

Health Care Consent (cont’d) Bill 32 would have:  Added more individuals to TSDM ranked list:  Grandparents  Close friend  In-laws  Religious office holder  Clarified substitute’s role regarding post- emergency withdrawal of treatment that was started in an emergency  Clarified best interests considerations and interaction with values and beliefs

Enduring Powers of Attorney Bill 32 would have:  Made enduring powers of attorney the primary instrument for planning for future incapacity (McClean Report)  Enduring Powers of Attorney prevailed if conflict or inconsistency with property representation agreement  Created capacity test that includes specific criteria that must be met  May “continue” or “spring”  Execution  Two witnesses (only 1 if a lawyer or notary)  Prohibited witnesses  Attorney must sign before acting  Duties  Gifting

Enduring Powers of Attorney (cont’d)  Clarified termination  Resignation  Revocation  Suspension  Termination  Mandated PGT to review allegations of misconduct  Expanded Court orders to give directions  Clarified status extra-provincial enduring powers of attorneys

Representation Agreement Amendments Bill 32 would have:  Property matters limited to routine financial by removing property matters from s.9 agreements (McClean report)  Permitted a regulation to “cap” amount of money that can be managed routinely under s.7  Increased accessibility by eliminating mandatory consultation with lawyer for s.9 agreements  If both valid representation agreement and advance directive - representation agreement prevails

COURT AND STATUTORY GUARDIANSHIP CHANGES UNDER BILL 32

Court Guardianship Bill 32 would have:  New court and statutory guardianship law to replace the Patients Property Act  Court guardianship application  Service  Plain language document  Guardianship plans  Mediation  What must be demonstrated:  Incapacity  Decisions needed  Guardians assistance and protection required  Alternatives are insufficient  Balance of personal and property  Individualized orders

Court Guardianship (cont’d)  Duties enumerated in Act, some existing but some new:  Foster independence of adult  Privacy  Comply with instructions made when capable  Gifting rules  Consider Code of Practice  Ties to Health Care (Consent) and Care Facility (Admission) Act decision making  Court reviews  Flexible – not fixed dates  Court may establish review date or on application by: GuardianAdultOthersPGT  No hearing required if no objection filed  Hearing if objection filed

Statutory Property Guardianship Under Bill 32:  No longer tied to Mental Health Act  Largely moves PGT 2004 guidelines on Certificates of Incapability from “best practice” into law  Certificate effective when signed by PGT  No statutory guardianship if enduring Power of Attorney granted unless Attorney not complying with duties  Enduring Power of Attorney suspended and may be terminated  Adult has right to 2 nd assessment and to court review  PGT required to give the adult rights advice  Termination eased where no longer needed

Statutory Property Guardianship (cont’d)  Reassessment required:  On discharge  Annually on request  Private person may apply to replace PGT as statutory property guardian  Guardianship plan required  If application suitable, PGT may:  Require security  Establish remuneration  Rescind appointment where necessary

Guardians Appointed Outside BC Bill 32 would have required:  Where the adult remains a resident of the originating jurisdiction  Guardian from another province may register an Order under the Enforcement of Canadian Judgments and Decrees Act  Not supervised by the BC Public Guardian and Trustee  Replaces current OIC processes  The Public Guardian and Trustees in other Provinces have automatic authority  Non-Canadian Orders from prescribed jurisdiction may be confirmed

Guardians Appointed Outside BC (cont’d)  Where the adult moves to BC  The Order may be converted by the BC Court into an Adult Guardianship Act Order  Once confirmed, the Adult Guardianship Act applies, including:  Powers  Duties  Passing of accounts and court reviews

ABUSE, NEGLECT AND SELF-NEGLECT RESPONSE CHANGES UNDER BILL 32

Improved Response in Cases of Abuse and Neglect Bill 32 would have:  Strengthened ability to keep confidential the identity of person reporting abuse  Extended:  Interim restraining orders from 30 to 90 days;  Support and assistance orders from 6 months to 1 year  PGT’s asset protection powers from 7 to 30 days  Temporary property guardianship up to 90 days

TRANSITIONAND CONSEQUENTIAL AMENDMENTS CHANGES UNDER BILL 32

23 Other Acts Amended  Bill 32 would have updated language to guardian from committee but also to recognize attorneys and representatives  Notable others:  Court Rules Act  Estate Administration Act  Notaries Act

So What’s Next?