BILL 29 – 2007
ADULT GUARDIANSHIP AND PLANNING STATUTES AMENDMENT ACT, 2007
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Part 1 -- Adult Guardianship Act Amendments
1 Section 1 of the Adult Guardianship Act, R.S.B.C. 1996, c. 6, is amended
(a) by repealing paragraph (b) of the definition of "abuse" and substituting the following:
(b) damage or loss in respect of the adult's financial affairs, ,
(b) in the definition of "adult" by striking out "section 6 (2)," and substituting "section 5 (6),",
(c) by repealing paragraph (a) of the definition of "court" and substituting the following:
(a) in this Part and Parts 2 and 2.1, the Supreme Court, ,
(d) by repealing the definitions of "decision maker" and "nearest relative",
(e) by repealing paragraph (a) of the definition of "designated agency",
(f) in the definition of "near relative" by adding ", a grandparent" after "brother or sister",
(g) in the definition of "neglect" by striking out "damage to or loss of assets," and substituting "damage or loss in respect of the adult's financial affairs,",
(h) in the definition of "self-neglect" by striking out "mental harm or substantial damage to or loss of assets," and substituting "mental harm or substantial damage or loss in respect of the adult's financial affairs,",
(i) in paragraph (d) of the definition of "self-neglect" by striking out "loss of assets," and substituting "loss of property,",
(j) by repealing paragraph (e) of the definition of "self-neglect" and substituting the following:
(e) suffering from an illness, disease or injury that results in the adult dealing with his or her financial affairs in a manner that is likely to cause substantial damage or loss in respect of those financial affairs; , and
(k) by adding the following definitions:
"advance directive" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;
"attorney" means a person authorized by a power of attorney or enduring power of attorney to make decisions on behalf of another;
"code of practice" means a published code of practice approved by the minister that establishes standards or sets guidelines respecting the exercise of powers or the performance of duties by a guardian;
"enduring power of attorney" means a power of attorney made under Part 2 of the Power of Attorney Act;
"financial affairs" includes an adult's business and property, and the conduct of the adult's legal affairs;
"guardian" means a personal guardian or a property guardian;
"health authority designate" means any person designated by a prescribed body as having authority to issue a certificate of incapability under section 32;
"health care provider" means a person who is licensed, certified or registered under a prescribed Act to provide health care;
"personal care" includes matters respecting
(a) the shelter, employment, diet and dress of an adult,
(b) participation by an adult in social, educational, vocational and other activities,
(c) contact or association by an adult with other persons, and
(d) licences, permits, approvals or other authorizations of an adult to do something;
"personal guardian" means a person appointed by the court under this Act to make decisions regarding an adult's personal care or health care;
"plan for guardianship" means a plan for guardianship submitted under section 5 (2) (b), including, if applicable, a plan as changed by the court or revised under section 25 (6);
"power of attorney" means a power of attorney made under Part 1 of the Power of Attorney Act;
"property guardian" means a person appointed by the court under this Act to make decisions regarding an adult's financial affairs;
"qualified health care provider" means a medical practitioner or a member of a prescribed class of health care providers;
"statutory property guardian" means a person who, under Part 2.1, may make decisions regarding an adult's financial affairs.
2 Section 2 is amended
(a) in paragraph (b) by striking out "their assets;" and substituting "their financial affairs;", and
(b) in paragraph (c) by striking out "decision makers or".
3 Section 3 (1) is repealed and the following substituted:
(1) Until the contrary is demonstrated, every adult is presumed to be capable of making decisions about the adult's personal care, health care and financial affairs.
4 Part 2 is repealed and the following substituted:
Part 2 -- Court Appointed Guardians
Division 1 -- Appointment Procedures
Assessment order
4 (1) A person may apply to the court for an order directing an adult to submit to an assessment of incapability if
(a) the person has reason to believe that the adult is incapable of making decisions about that adult's personal care or health care, or of managing that adult's financial affairs,
(b) the person intends to make, or has made, an application to the court to appoint a guardian for the adult, and
(c) the adult is refusing to be assessed.
(2) A copy of the application must be served on the persons listed in section 5 (3)
(a) at least 30 days before the date set for the hearing, or
(b) a shorter time as the court directs.
(3) On receiving evidence respecting the matters set out in subsection (1), the court may make an order directing the adult to attend at the time and place the court directs and submit to one or more assessments of incapability for the purposes of a guardianship application,
(a) before a guardianship application under section 5 is made, if applicable, or
(b) at any time before the court makes a determination to appoint or refuse to appoint a guardian.
Application for appointment of guardian
5 (1) Any person may apply to the court for the appointment of a personal guardian, property guardian or both, for an adult.
(2) An application must be accompanied by the following:
(a) 2 assessment reports, each
(i) completed in the prescribed form by a qualified health care provider who assessed the adult using prescribed assessment procedures, and
(ii) describing the extent to which the adult is incapable of making decisions about the adult's personal care, health care or financial affairs;
(b) a plan for the adult's guardianship prepared in the prescribed form by the proposed guardian;
(c) a copy of any representation agreement, power of attorney and enduring power of attorney, made by the adult, that is known to the applicant;
(d) in addition to the records described in paragraph (c), if the application is or includes an application for a personal guardian, a copy of any advance directive, made by the adult, that is known to the applicant.
(3) A copy of the application, the accompanying documents and any prescribed informational material must be served, at least 30 days before the date set for the hearing, on the following persons:
(a) the adult who is the subject of the application;
(b) the adult's spouse, unless the adult's marriage or marriage-like relationship has ended, and adult children, if any;
(c) if the adult has no spouse or adult children, another near relative of the adult;
(d) the adult's guardian, if any;
(e) the adult's proposed guardian, if not the applicant;
(f) the Public Guardian and Trustee, if not the applicant;
(g) any person known to the applicant to be the adult's attorney or representative;
(h) any other person that the court may direct.
(4) A marriage ends for the purposes of this section when an agreement, judgment or order referred to in section 56 of the Family Relations Act is first made in respect of the marriage.
(5) A marriage-like relationship ends for the purposes of this section when the parties to the marriage-like relationship stop cohabiting with each other with the intention of ending the relationship.
(6) An application may be made for an order appointing a guardian for a person who is 18 years of age, but the order is not effective until the person reaches 19 years of age.
(7) Despite subsection (3), service is not required in respect of any person referred to in subsection (3) (b) to (h) who consents, in writing, to the application.
Mediation
6 (1) If a guardianship application is made under section 5 and there is a dispute about
(a) whether or not the adult who is the subject of the application needs a guardian,
(b) who the proposed guardian should be, or
(c) the adequacy of the plan for guardianship,
a hearing under section 7 must not proceed unless mediation is conducted in accordance with the regulations, or unless the regulations permit otherwise.
(2) The following must not be the subject of mediation under this section:
(a) whether or not an adult is incapable;
(b) the content of any written or oral comments submitted to the court by the Public Guardian and Trustee under section 7 (2) (c);
(c) any prescribed matter.
Hearing the application
7 (1) The following may attend the hearing of a guardianship application and make representations:
(a) a person served under section 5 (3);
(b) any other person who files an appearance and whom the court agrees to hear.
(2) The court must consider
(a) the information submitted under section 5 (2),
(b) any agreement that has been reached as a result of mediation under section 6, and
(c) any written or oral comments submitted to the court by the Public Guardian and Trustee.
(3) The court may require a person proposed as a guardian to attend and answer questions to enable the court to determine the person's suitability as a guardian.
Appointment of guardian
8 (1) The court may make an order appointing one or more guardians for an adult if the court is satisfied that
(a) the adult needs to make decisions respecting the adult's personal care, health care or financial affairs,
(b) the adult is incapable of making those decisions,
(c) the adult needs, and will benefit from, the assistance and protection of a guardian, and
(d) the needs of the adult would not be sufficiently met by alternative means of assistance.
(2) The court may appoint as guardian a person who is
(a) eligible under section 10 to act as a guardian, and
(b) in the opinion of the court, suitable to be the adult's guardian.
(3) Subject to subsection (4), when appointing a guardian for an adult, the court must consider any wishes the adult, when capable, expressed orally or in writing respecting who should, or should not, act as guardian.
(4) Unless there is good and sufficient reason for refusing the appointment, the court must appoint as guardian a committee nominated under the Patients Property Act, before that Act was repealed, or a person nominated by the adult as a guardian, if the nomination was
(a) made in writing and signed by the adult at a time when the adult was both an adult and mentally capable of nominating a committee or guardian, and
(b) executed in accordance with the requirements for the making of a will under the Wills Act.
(5) Unless the court orders otherwise, a property guardian must give security for the proper performance of the property guardian's duties, and, if the security is in the form of a bond, the bond must be
(a) in the amount the court directs,
(b) in the name of the Public Guardian and Trustee,
(c) approved by the Registrar of the court, and
(d) filed with the Public Guardian and Trustee.
(6) The Public Guardian and Trustee may make an application at any time for security to be given or varied.
(7) Unless the court orders otherwise, the applicant for guardianship must deliver a copy of the guardianship order made by the court under this section to the persons who were served with, or consented to, the guardianship application.
If more than one guardian appointed
9 (1) If more than one guardian is appointed, the court may assign to each guardian
(a) a different area of authority, or
(b) all or part of the same area of authority.
(2) If all or part of the same area of authority is assigned to more than one guardian, the guardians must act unanimously in exercising that authority unless the court
(a) orders otherwise, or
(b) appoints a guardian to act only as an alternate guardian and includes in the order
(i) the circumstances in which the alternate guardian is authorized to act in place of the guardian, and
(ii) the limits or conditions, if any, on the exercise of authority by the alternate guardian.
(3) Unless the court orders otherwise, if there is more than one guardian and one of them is unable to act, or the authority of one of them ends under section 27 (1),
(a) if the guardians must act unanimously, the remaining guardians
(i) must not continue to act until the guardian is able, in the case of a guardian who is not able to act, or
(ii) must not continue to act, in the case of a guardian whose authority ends under section 27 (1), and
(b) if the guardians need not act unanimously, the remaining guardians may continue to act.
Who may be appointed
10 (1) Subject to subsection (2), the following persons may be appointed as a guardian:
(a) in the case of either a personal guardian or a property guardian,
(i) an adult who agrees to comply with the duties of a guardian, and
(ii) the Public Guardian and Trustee;
(b) in the case of a property guardian, a financial institution authorized to carry on trust business under the Financial Institutions Act.
(2) The court must not appoint the following persons as a guardian:
(a) a person who has a conflict of interest with the adult;
(b) a person, other than a near relative of the adult, who provides personal care or health care services to the adult for compensation.
(3) A person who, on the death of an adult, will be or might be a beneficiary of the adult's estate does not, for that reason, have a conflict of interest with the adult.
Appointment of temporary property guardian
11 (1) The Public Guardian and Trustee may apply to the court for an order appointing the Public Guardian and Trustee as temporary property guardian for an adult if the Public Guardian and Trustee has reason to believe that
(a) the adult is incapable of making decisions about that adult's financial affairs, and
(b) an order is needed urgently to protect the adult's financial affairs from damage or loss.
(2) In relation to an application made under this section,
(a) the Public Guardian and Trustee is not required to serve anyone with the application, or file the documents required under section 5 (2), and
(b) an assessment of the adult's incapability by a qualified health care provider is not required.
(3) The court may appoint the Public Guardian and Trustee as temporary property guardian for an adult if the court is satisfied that
(a) the conditions set out in subsection (1) exist, and
(b) it would not be in the best interests of the adult to wait until an application is made under section 5 or a statutory property guardian is appointed under Part 2.1.
(4) A temporary property guardian has, for a period of up to 90 days, as ordered by the court, authority to do anything that a statutory property guardian could do, except permitting the replacement of the statutory property guardian under section 36.
Effect of appointment on other instruments
12 (1) Unless the court orders otherwise, if a personal guardian is appointed for an adult, any provisions respecting personal care or health care within a representation agreement or an advance directive made by the adult are terminated.
(2) Unless the court orders otherwise, if a property guardian is appointed for an adult,
(a) any enduring power of attorney made by the adult is terminated, and
(b) any provisions respecting financial affairs within a representation agreement made by the adult are terminated.
(3) If a property guardian is appointed for an adult, any power of attorney made by the adult is terminated.
Additional court powers
13 In an order appointing a guardian, the court may do one or more of the following:
(a) in relation to the plan for guardianship,
(i) change or delete provisions of the plan for guardianship,
(ii) incorporate the plan for guardianship as part of the order, and
(iii) make orders respecting revisions to the plan for guardianship;
(b) give directions relevant to a review of the order for the purposes of sections 25 and 26, including the date, if any, before which the guardian must make an application for review;
(c) specify the circumstances in which the order will end;
(d) limit the scope of, or put conditions on the exercise of, the authority that a guardian would otherwise have under this or another enactment, or make any other provision in the best interests of the adult.
Division 2 -- Powers and Duties of Guardians
General prohibitions
14 (1) A guardian must not make or change a will for the adult for whom the guardian is acting, and any will or change that is made for an adult by his or her guardian has no force or effect.
(2) Unless the court orders otherwise or another enactment provides otherwise, a guardian must not delegate any of the guardian's decision-making authority.
General powers
15 (1) A guardian has only the powers granted to the guardian by
(a) an order of the court, and
(b) an enactment.
(2) A guardian may retain the services of a qualified person to assist the guardian in doing anything the court has authorized the guardian to do.
(3) A guardian may request information and records respecting the adult for whom the guardian is acting, if the information or records relate to
(a) the incapability of the adult, or
(b) an area of authority granted to the guardian.
(4) A guardian has the same right to information and records described under subsection (3) as does the adult for whom the guardian is acting.
Powers of personal guardian
16 (1) The court may, in an order appointing a personal guardian for an adult, authorize the personal guardian to
(a) do anything the personal guardian considers necessary in relation to the personal care or health care of the adult, or
(b) do one or more things, including any of the following:
(i) decide where the adult is to live and with whom, including whether the adult should live in a care facility;
(ii) decide whether the adult should work and, if so, the type of work, the employer, and any related matters;
(iii) decide whether the adult should participate in any educational, social, vocational or other activity;
(iv) decide whether the adult should have contact or associate with another person;
(v) decide whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity;
(vi) make day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;
(vii) subject to subsections (2) and (4), give or refuse consent to health care for the adult;
(viii) physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.
(2) Unless the court provides otherwise, a personal guardian must not
(a) give or refuse consent on the adult's behalf to any type of health care prescribed under section 34 (2) (f) of the Health Care (Consent) and Care Facility (Admission) Act, or
(b) interfere with the adult's religious practices.
(3) If a personal guardian is provided the power to consent, or refuse consent, to health care for the adult, the personal guardian may consent, or refuse consent, to health care necessary to preserve life.
(4) A personal guardian must not consent to the provision of professional services, care or treatment to the adult for the purposes of sterilization for non-therapeutic purposes.
Powers of property guardian
17 (1) The court may authorize a property guardian to do, on an adult's behalf, anything in respect of the adult's financial affairs that the adult could do if the adult were capable.
(2) A property guardian may permit the adult to hold, manage or control a part of the adult's property to defray normal living expenses or part of them, and the property guardian is not liable for loss or damage to the adult's property resulting from the adult holding, managing or controlling that part of the property.
(3) Despite section 14 (2), a property guardian may delegate investment matters to a qualified investment specialist, including a mutual fund manager, if the delegation is done in accordance with,
(a) if the property guardian is the Public Guardian and Trustee, the Public Guardian and Trustee Act, or
(b) in any other case, section 15.5 of the Trustee Act.
(4) A property guardian may, in an instrument other than a will,
(a) change a beneficiary designation made by the adult, if the court authorizes the change, or
(b) create a new beneficiary designation, if the newly designated beneficiary is the adult's estate or
(i) the designation is made in an instrument that is renewing, replacing or converting a similar instrument made by the adult, while capable, and
(ii) the newly designated beneficiary is the same beneficiary that was designated in the similar instrument.
(5) A property guardian may make a gift or loan, or charitable gift, from the adult's property if the court permits the property guardian to do so or if
(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult's dependants, and to satisfy the adult's legal obligations, if any,
(b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and
(c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value.
(6) A property guardian may receive a gift or loan under subsection (5) if the court permits.
(7) Permission of the court under subsection (5) or (6)
(a) must be express, and
(b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally.
(8) If a property guardian has authority to make decisions about specific property belonging to an adult, the property guardian may request a person who has custody or control of the property to deliver it to the property guardian, and, subject to subsection (9), the person must deliver that property promptly.
(9) A person must not deliver, to an adult's property guardian, a will made by the adult if the adult has given instructions to a lawyer who holds the adult's will, or the will contains instructions, prohibiting delivery of the will to the property guardian.
(10) Unless the court orders otherwise,
(a) only the adult's property guardian may act as the adult's litigation guardian, and
(b) a property guardian must not begin divorce proceedings on the adult's behalf.
Effect of anything done by a guardian
18 Anything done by a guardian with regard to any matter in respect of which the guardian has authority is deemed for all purposes to have been done by the adult, as though that adult were capable of making decisions.
Division 3 -- Duties and Liabilities of Guardians
General duties
19 (1) A guardian must
(a) act honestly and in good faith,
(b) exercise the care, diligence and skill of a reasonably prudent person,
(c) act within the authority granted in the court order or under an enactment,
(d) to the extent reasonable, act in accordance with the plan for guardianship, and
(e) to the extent reasonable, foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult.
(2) In exercising a power or performing a duty, a guardian must consider any applicable standards or guidelines in a code of practice.
(3) A guardian must not disclose information or records obtained in the exercise of his or her authority except to the extent necessary to
(a) perform the guardian's duties,
(b) make a report to the Public Guardian and Trustee or comply with a request of the Public Guardian and Trustee, or
(c) make an application to the court or comply with an order of the court.
(4) A guardian, other than the Public Guardian and Trustee, must
(a) keep prescribed records, and
(b) produce the prescribed records for inspection and copying at the request of the adult or the Public Guardian and Trustee.
(5) A guardian, other than the Public Guardian and Trustee, must report to the Public Guardian and Trustee
(a) any substantial changes affecting the adult, including a change in
(i) the residence of the guardian or of the adult,
(ii) the adult's or guardian's contact information, and
(iii) any prescribed circumstances, and
(b) at the request of, and on the matters specified by, the Public Guardian and Trustee.
Duties of personal guardian
20 (1) In this section, "pre-expressed wishes" means instructions or wishes regarding personal care or health care that an adult most recently expressed while capable, including any instructions or wishes set out by the adult in a representation agreement or an advance directive that was terminated under section 12.
(2) When making decisions on behalf of the adult, a personal guardian must comply with the adult's pre-expressed wishes, unless to do so would be inconsistent with an order of the court.
(3) If there are no pre-expressed wishes relevant to the decision to be made, a personal guardian must act in the adult's best interests, taking into account
(a) with respect to the adult's personal care or health care,
(i) the adult's known beliefs and values, and
(ii) any prescribed matters, and
(b) with respect to the adult's health care,
(i) whether the adult's condition or well-being is likely to be improved by the proposed care,
(ii) whether the adult's condition or well-being is likely to improve without the proposed care,
(iii) whether the benefit the adult is expected to obtain from the proposed care is greater than the risk of harm, and
(iv) whether a less restrictive or less intrusive form of care would be as beneficial as the proposed care.
Duties of property guardian
21 (1) A property guardian has a fiduciary duty to the adult.
(2) When managing and making decisions about the adult's financial affairs, a property guardian must act in the adult's best interests, taking into account
(a) any instructions or wishes the adult most recently expressed while capable, including any instructions or wishes expressed in an enduring power of attorney, and
(b) the adult's known beliefs and values.
(3) A property guardian must
(a) invest the adult's property only in accordance with the Trustee Act,
(b) to the extent reasonable, give priority when managing the adult's financial affairs to meeting the personal care and health care needs of the adult,
(c) not dispose of property that the property guardian knows is subject to a specific testamentary gift in the adult's will,
(d) to the extent reasonable, keep the adult's personal effects at the disposal of the adult, and
(e) if the adult has or acquires property that
(i) is valued at a prescribed amount or greater, and
(ii) was not disclosed or valued correctly in a plan for guardianship or in the most recent passing or providing of accounts under section 22,
deliver to the Public Guardian and Trustee a true account of the property, within 30 days of discovering or acquiring the property.
(4) Subsection (3) (a) does not apply to the Public Guardian and Trustee.
(5) Despite subsection (3) (c), a property guardian may dispose of the adult's property if the disposition is necessary to comply with the property guardian's duties.
(6) A property guardian must keep the adult's property separate from the property guardian's own property.
(7) Unless the order appointing the property guardian provides otherwise, subsection (6) does not apply to property that
(a) is jointly owned by the adult and the property guardian as joint tenants or otherwise, or
(b) has been substituted for, or derived from, property described in paragraph (a).
Accounts
22 (1) A property guardian other than the Public Guardian and Trustee must apply to pass accounts of the adult's financial affairs before
(a) the court, if ordered to do so by the court or requested to do so by the Public Guardian and Trustee, or
(b) the Public Guardian and Trustee,
(i) if ordered to do so by the court or requested to do so by the Public Guardian and Trustee, and
(ii) in the form required by the Public Guardian and Trustee.
(2) On the passing of accounts under subsection (1) (a), the court may make any order it considers proper.
(3) When an order appointing a property guardian ends, other than by the death of the adult, the property guardian must provide the adult and any person who is replacing the property guardian with
(a) a report of the decisions made and actions taken on the adult's behalf,
(b) the adult's accounts, and
(c) except where the property guardian is the Public Guardian and Trustee, copies of any reports submitted by the property guardian to the Public Guardian and Trustee.
(4) A property guardian may apply to pass accounts of the adult's financial affairs before the court at any time, and the court may make any order it considers proper.
(5) A guardian other than the Public Guardian and Trustee may at any time appeal to the court any decision respecting the passing of accounts made by the Public Guardian and Trustee.
(6) When an order appointing a property guardian ends because of the death of the adult, the property guardian must provide the accounts of the adult's financial affairs
(a) to the executor or administrator of the adult's estate, or
(b) if the property guardian and the executor or administrator of the adult's estate are the same person, to the beneficiaries of the adult's estate.
(7) The executor, administrator or beneficiaries of the adult's estate may provide to the property guardian written approval of, and consent to, the accounts received under subsection (6).
(8) If a property guardian fails to provide the accounts of the adult's financial affairs as required under subsection (3) or (6), or if the accounts are incomplete or inaccurate, a person entitled to the accounts may require the property guardian to attend before the court to explain the property guardian's failure to provide the accounts or to provide a satisfactory accounting, and the court may give any direction it considers proper.
Liability of guardians
23 A guardian who acts in the course of the guardian's duties is not liable for any injury or death of the adult, or loss or damage to the adult's financial affairs, as applicable, if the guardian complies with
(a) the guardian's duties, as set out in this Act and any order of the court,
(b) any directions of the court given under this Act, and
(c) any other duty that may be imposed by law.
Payment and expenses of guardians
24 (1) A personal guardian must not be remunerated for acting as the adult's personal guardian, except that a personal guardian may be reimbursed from the adult's property for reasonable expenses properly incurred in acting as the adult's personal guardian.
(2) A property guardian may be remunerated from the adult's property for acting as the adult's property guardian, and remuneration must be
(a) if the Public Guardian and Trustee is acting as the adult's guardian, in accordance with any regulations made under section 23 of the Public Guardian and Trustee Act, and
(b) in any other case, in accordance with the regulations.
(3) Despite subsection (2), the court may order that a property guardian
(a) other than the Public Guardian and Trustee, must not be remunerated for acting as the adult's property guardian, or
(b) be remunerated other than as set out in the regulations.
(4) A property guardian may be reimbursed from the adult's property for reasonable expenses properly incurred in acting as the adult's property guardian.
(5) Subject to the regulations, a guardian has,
(a) for any expenses and remuneration permitted under this section, and
(b) for any amounts advanced for or on behalf of the adult, or for the support of the adult's dependants,
a lien on the real and personal property of the adult for whom the guardian is acting.
Division 4 -- Review, Replacement and End of Guardianship
Application for review
25 (1) A guardian must apply to the court for a review of the order appointing the guardian if
(a) the adult's needs, circumstances or ability to make decisions has changed significantly since the order was made and a change in or cancellation of the order appears to be in the best interests of the adult,
(b) the court requires a review to be made under section 13 (b), or
(c) the guardian is no longer able or willing to act as the adult's guardian.
(2) The Public Guardian and Trustee may apply to the court for a review of an order appointing a guardian if
(a) one or more of the circumstances described in subsection (1) exist and the adult's guardian does not apply for a review within a reasonable time, or
(b) following an investigation under section 30, the Public Guardian and Trustee believes it to be in the best interests of the adult for whom the guardian is acting.
(3) An adult who has a guardian may apply to the court for a review of an order appointing a guardian.
(4) Any person may apply to the court for a review of an order appointing a guardian for an adult if
(a) the person has reason to believe that the adult's needs, circumstances or ability to make decisions has changed significantly since the order was made, or
(b) the adult requests a review.
(5) Applications under subsections (3) and (4) may be made in respect of the same adult no more than once every 12 months, or another period as the court directs.
(6) An application made under subsection (1) must be accompanied by the plan for guardianship, including, if applicable, a revision of the plan for guardianship prepared in the prescribed form by the guardian.
(7) A copy of an application for review must be served
(a) unless the court orders otherwise, on the adult's guardian,
(b) unless the court orders otherwise, on the persons who were served under section 5 (3), except a person referred to in section 5 (3) (d), (e) or (g), and
(c) on any other person that the court may direct.
(8) A person who is served with a copy of an application for review
(a) may file a notice of objection with the court within 30 days after being served, and
(b) if a notice of objection is filed by a person other than the Public Guardian and Trustee, must serve a copy of the notice on the Public Guardian and Trustee.
(9) The Public Guardian and Trustee may submit to the court written comments regarding the application for review and the notice of objection.
Review
26 (1) On receiving an application under section 25 to review an order appointing a guardian for an adult, the court
(a) must hold a hearing if
(i) a notice of objection is filed under section 25 (8), or
(ii) the Public Guardian and Trustee has applied for the review following an investigation under section 30, and
(b) in any other case, may proceed without a hearing.
(2) If the court holds a hearing, the following may attend and make representations:
(a) a person served under section 25 (7) or 30 (3), as applicable;
(b) any other person who files an appearance and whom the court agrees to hear.
(3) If the adult's capability is in issue, the court must order, whether or not the court holds a hearing and at any time before making an order under subsection (6), production of 2 assessment reports, and, for this purpose,
(a) the court may make any order the court could make under section 4, and
(b) section 5 (2) (a) applies,
as if the review were an application for appointment of a guardian.
(4) Despite subsection (3), if
(a) a notice of objection has not been filed under section 25 (8), and
(b) the adult does not ordinarily reside in British Columbia,
the court may accept as evidence an assessment conducted by 2 persons entitled to practise medicine in the jurisdiction where the adult is ordinarily resident.
(5) Whether or not the court holds a hearing, the court may consider evidence respecting whether or to what extent the guardian's conduct adhered to any standards or guidelines contained in a code of practice.
(6) Whether or not the court holds a hearing, the court may, having considered the matters set out in section 8 (1), make an order cancelling the guardianship order, or, if the court determines that the adult still needs a guardian, make an order to do one or more of the following:
(a) continue a guardian's appointment;
(b) vary the powers or duties of a guardian;
(c) appoint additional guardians;
(d) remove a guardian and appoint a different guardian if the court is satisfied that the guardian
(i) is no longer acting as a guardian,
(ii) has not complied with the duties of a guardian, or
(iii) is, for any other reason, no longer a suitable guardian;
(e) in respect of any guardian, make any order the court may make under this Part, or vary or cancel an order made under this Part.
(7) Section 8 (2) to (5) applies to an order appointing additional guardians or a different guardian.
(8) Unless the court orders otherwise, the applicant must deliver a copy of any order made by the court under subsection (6) to the persons who were served with notice of the application for review.
When authority of guardian ends
27 (1) The authority of a guardian ends if the guardian
(a) becomes incapable,
(b) dies,
(c) is removed by order of the court,
(d) becomes bankrupt,
(e) is convicted of a prescribed offence or any offence in which the adult was the victim, or
(f) is a corporation, and the corporation dissolves, winds up or ceases to carry on business.
(2) Until another guardian is appointed under this Act, the Public Guardian and Trustee may exercise the authority of a guardian if
(a) the authority of a guardian has ended under subsection (1),
(b) there is no other guardian who is willing and able, and has authority, to act, and
(c) the Public Guardian and Trustee receives notice of an event described in subsection (1).
(3) As evidence of the authority of the Public Guardian and Trustee under this section to exercise the authority of a guardian, the Public Guardian and Trustee may produce a certificate in the prescribed form.
When orders end
28 (1) An order appointing a guardian ends
(a) on the death of the adult,
(b) by order of the court, or
(c) in the circumstances specified by the court.
(2) Despite the end of a guardianship order, the Public Guardian and Trustee may carry out and complete a transaction entered into by the Public Guardian and Trustee, acting as property guardian, in relation to the adult's property, that is not completed before the order appointing the guardian ends.
(3) Despite the end of a guardianship order under subsection (1) (a), on the death of the adult and until letters probate of the will or letters of administration of the estate of the adult are granted and notice in writing of the grant is served on a property guardian, the property guardian
(a) continues, for the purpose of preserving the adult's estate until the grant is made and notice is served, to have the rights, powers, duties and privileges that the property guardian would have had if the adult had not died, and
(b) has the powers of an executor of the last will and testament, or the powers of an administrator of the estate, of the adult.
(4) The court may make an order that subsection (3) does not apply,
(a) at any time the court makes any other order under this Part, or
(b) if no letters probate of the will or letters of administration of the estate of the adult are granted, on application by a property guardian.
(5) Despite section 22 (1) (b), the Public Guardian and Trustee must not require a property guardian to pass accounts before the Public Guardian and Trustee after the death of an adult.
Release of property guardian
29 Unless the court orders otherwise, if, in the case of a property guardian,
(a) the property guardian is removed by order of the court or the order for guardianship ends, and
(b) accounts are passed in accordance with section 22,
the property guardian is released from all actions, claims and demands for or concerning the property guardian's actions under this Act, except in respect of undisclosed acts, neglects, defaults or accounts, or dishonest or unlawful conduct.
Division 5 -- Investigations and Extrajurisdictional Orders
Investigations by Public Guardian and Trustee
30 (1) If the Public Guardian and Trustee has reason to believe that a guardian has failed, or is about to fail, to comply with the guardian's duties, the Public Guardian and Trustee may conduct an investigation.
(2) After conducting an investigation, the Public Guardian and Trustee may apply to the court for a review under section 25.
(3) Unless the court orders otherwise, a copy of the application under subsection (2) must be served, at least 30 days before the date set for the hearing, on the adult and on the guardian who is the subject of the application.
(4) Section 25 (7) does not apply to an application for review made as a result of an investigation under this section.
Extrajurisdictional guardianship orders
31 Subject to any limitation or condition set out in the regulations, a person who
(a) is authorized by judgment, decree or order of a court or tribunal to act outside British Columbia in a manner similar to a guardian, and
(b) complies with any prescribed requirements
may exercise powers and perform duties in British Columbia in respect of the adult for whom the person is acting, as if that person were a guardian under this Act.
Part 2.1 -- Statutory Property Guardians
Obtaining a statutory property guardian
32 (1) If a person has reason to believe that an adult may be incapable of managing the adult's financial affairs, the person may
(a) if the person is a health care provider, request a qualified health care provider to assess the adult's incapability, or
(b) in any case, notify the Public Guardian and Trustee of the person's belief, and the Public Guardian and Trustee may request a qualified health care provider to assess the adult's incapability.
(2) If, after assessing the adult according to prescribed procedures, the qualified health care provider determines that the adult is incapable of managing that adult's financial affairs, the qualified health care provider may, using the prescribed form, report the adult's incapability to a health authority designate.
(3) If a health authority designate receives a report under subsection (2) of an adult's incapability, the health authority designate may issue, after consultation with the Public Guardian and Trustee, a certificate of incapability in respect of the adult, if satisfied that, based on the report and any additional information the designate receives,
(a) the adult needs to make decisions about the adult's financial affairs,
(b) the adult is incapable of making those decisions,
(c) the adult needs, and will benefit from, the assistance and protection of a statutory property guardian,
(d) the needs of the adult would not be sufficiently met by alternative means of assistance, and
(e) either
(i) the adult has not granted power over all of the adult's financial affairs to an attorney under an enduring power of attorney, or
(ii) an attorney has been granted power as described in subparagraph (i) but is not complying with the attorney's duties under the Power of Attorney Act or the enduring power of attorney, as applicable.
(4) If the health authority designate issues a certificate of incapability, the certificate must be forwarded to the Public Guardian and Trustee.
(5) On receiving the certificate of incapability, the Public Guardian and Trustee may accept the certificate by signing it, in which case the Public Guardian and Trustee is the adult's statutory property guardian.
(6) If the Public Guardian and Trustee does not accept the certificate of incapability,
(a) the Public Guardian and Trustee must advise the health authority designate that the certificate has not been accepted, and the reason it has not been accepted, and
(b) a person may use the certificate in an application for the appointment of a property guardian for the adult in place of one of the assessment reports required under section 5 (2) (a).
(7) This section does not apply if the adult has a property guardian.
When Public Guardian and Trustee becomes
statutory property guardian
33 (1) On becoming an adult's statutory property guardian, the Public Guardian and Trustee has all the powers of a property guardian under this Act or any other enactment, including any powers that a court could grant to a property guardian.
(2) On becoming an adult's statutory property guardian, the Public Guardian and Trustee
(a) has the duties of a property guardian as set out in sections 19 (1) (a), (b) and (e), (2) and (3) (a) and (c), 21 (1), (2), (3) (b) to (e) and (5) to (7) and 22 (3), (4) and (6) to (8), and sections 14 (1), 18, 23 and 24 (2) (a), (4) and (5) apply, and
(b) must advise the adult, and, if contact information is known to the Public Guardian and Trustee, the adult's spouse or a near relative of the adult, that
(i) the Public Guardian and Trustee is the adult's statutory property guardian, and
(ii) the adult has the rights described in subsection (3).
(3) On being advised that the Public Guardian and Trustee is an adult's statutory property guardian,
(a) the adult, or a person acting on behalf of the adult, may request, within the prescribed time, a second assessment of the adult's incapability conducted by a qualified health care provider in accordance with prescribed assessment procedures, and
(b) if, following the second assessment, a qualified health care provider determines that the adult is incapable of managing that adult's financial affairs, the adult, or a person acting on behalf of the adult, may apply to the court under section 35 for a review of the determination.
(4) When the adult is advised that the Public Guardian and Trustee is the adult's statutory property guardian, the authority of any attorney, or the authority in respect of financial affairs of any representative, acting for the adult is suspended until
(a) the adult no longer has a statutory property guardian, or
(b) the Public Guardian and Trustee gives notice to the attorney or representative under subsection (5).
(5) An enduring power of attorney is terminated, or financial provisions of a representation agreement are terminated, if
(a) in the opinion of the Public Guardian and Trustee, it would be in the best interests of the adult, based on prescribed criteria, to terminate the enduring power of attorney or financial provisions, and
(b) the Public Guardian and Trustee gives notice to the attorney or representative that the enduring power of attorney or financial provisions of the representation agreement are terminated.
When adult must be reassessed
34 The incapability of an adult who has a statutory property guardian must be reassessed by a qualified health care provider, in accordance with prescribed assessment procedures, if
(a) the adult is receiving psychiatric treatment in a facility designated under the Mental Health Act and the adult is to be discharged,
(b) the adult's statutory property guardian informs the health authority designate that a reassessment should occur,
(c) the adult requests a reassessment and has not been reassessed within the preceding 12 months, or
(d) the court orders that a reassessment occur under section 35 (3).
Court review of finding of incapability
35 (1) If an adult has been determined to be incapable of managing the adult's financial affairs under section 33 (3) or 34, the adult may apply to the court for a review of that determination.
(2) The following are parties to a review under this section:
(a) the adult who has been determined to be incapable;
(b) the health authority designate who issued the certificate of incapability;
(c) if ordered by the court, the adult's personal guardian.
(3) The court may order the adult to attend at the time and place the court directs and submit to an assessment of incapability conducted by a qualified health care provider in accordance with prescribed assessment procedures.
(4) The court may
(a) confirm the determination of incapability, or
(b) reject the determination of incapability and order that the authority of the statutory property guardian is ended.
Replacing the statutory property guardian
36 (1) Any of the following persons may apply to the Public Guardian and Trustee to assume powers and duties as an adult's statutory property guardian:
(a) an individual;
(b) a financial institution authorized to do trust business under the Financial Institutions Act.
(2) An application must
(a) be in the prescribed form, and
(b) be accompanied by a plan, in the prescribed form, for performing the duties of a statutory property guardian.
(3) The Public Guardian and Trustee may grant the application if satisfied that
(a) the applicant is suitable, and
(b) the plan submitted under subsection (2) (b) is appropriate to manage the adult's financial affairs.
(4) If the Public Guardian and Trustee grants an application,
(a) the authority to act as the adult's statutory property guardian is transferred from the Public Guardian and Trustee to the applicant, and
(b) the Public Guardian and Trustee must not exercise power as the adult's statutory property guardian.
(5) Before granting an application, the Public Guardian and Trustee may require an applicant to provide security for the proper performance of the duties of a statutory property guardian in a form acceptable to the Public Guardian and Trustee.
(6) The Public Guardian and Trustee may determine the remuneration, if any, the applicant will receive from the adult's property for acting as the adult's statutory property guardian.
(7) On granting an application, the Public Guardian and Trustee must give the applicant a notice in the prescribed form that confirms the transfer of the Public Guardian and Trustee's authority as statutory property guardian to the applicant.
(8) A statutory property guardian who has been granted authority under this section
(a) has all of the powers of a property guardian under this Act or any other enactment, except those powers a court must specifically grant to a property guardian,
(b) has the duties of a property guardian as set out in sections 15 (2) to (4), 19 (1) (a), (b), and (e) and (2) to (5), 21 and 22 (1) (b) and (3) to (6), and sections 14, 18, 23 and 24 (2) (b), (4) and (5) apply, and
(c) must act, to the extent reasonable, in accordance with the plan submitted under subsection (2) (b).
(9) If the Public Guardian and Trustee refuses an application, the applicant may
(a) apply to the court to be appointed the adult's property guardian, and
(b) use the certificate of incapability issued under section 32 in place of one of the assessment reports required under section 5 (2) (a).
(10) The Public Guardian and Trustee may rescind a grant of authority made under this section if
(a) the person who has been granted the authority fails to comply with this Act or the regulations made under it, or
(b) it is no longer in the best interests of the adult for the adult's statutory property guardian to continue to act.
When authority ends
37 (1) The authority of a statutory property guardian who has been granted that authority under section 36 ends if
(a) the Public Guardian and Trustee rescinds the grant of authority, or
(b) the person granted authority
(i) becomes incapable of managing the adult's financial affairs,
(ii) dies,
(iii) becomes bankrupt,
(iv) is convicted of a prescribed offence or any offence in which the adult was the victim, or
(v) resigns as statutory property guardian by giving written notice to the Public Guardian and Trustee.
(2) If the authority of a statutory property guardian ends under subsection (1), the authority of that statutory property guardian is transferred back to the Public Guardian and Trustee,
(a) if authority ends under subsection (1) (a), when the Public Guardian and Trustee notifies the statutory property guardian that the grant of authority has been rescinded,
(b) if authority ends under subsection (1) (b) (i) to (iv), when the Public Guardian and Trustee receives notice of the applicable event, and
(c) if authority ends under subsection (1) (b) (v), when the Public Guardian and Trustee receives the notice of resignation described in that subsection.
(3) The authority of an adult's statutory property guardian ends if
(a) the Public Guardian and Trustee is the statutory property guardian and the Public Guardian and Trustee
(i) is satisfied that the adult no longer needs a statutory property guardian, and
(ii) has provided notice to the adult that the adult no longer has a statutory property guardian,
(b) following a second assessment under section 33 (3), or a reassessment under section 34,
(i) a qualified health care provider determines that the adult is capable of managing the adult's financial affairs and notifies a health authority designate of the determination, and
(ii) the health authority designate accepts the determination of capability and notifies the Public Guardian and Trustee of the determination,
(c) the court ends the statutory property guardianship under section 35, or
(d) the court appoints a property guardian for the adult.
(4) If the authority of an adult's statutory property guardian ends under subsection (3), the certificate of incapability issued under section 32 is cancelled.
(5) Despite the end of a statutory property guardianship, the Public Guardian and Trustee may carry out and complete a transaction, entered into by the statutory property guardian in relation to the adult's property, that is not completed before the authority of the adult's statutory property guardian ends.
(6) On the death of the adult and until letters probate of the will or letters of administration of the estate of the adult are granted and notice in writing of the grant is served on a statutory property guardian, the statutory property guardian
(a) continues, for the purpose of preserving the adult's estate until the grant is made and notice is served, to have the rights, powers, duties and privileges that the statutory property guardian would have had if the adult had not died, and
(b) has the powers of an executor of the last will and testament, or the powers of an administrator of the estate, of the adult.
(7) If no letters probate of the will or letters of administration of the estate of the adult are granted, the statutory property guardian may apply to court for an order that subsection (6) does not apply.
Release of statutory property guardian
38 Unless the Public Guardian and Trustee orders otherwise, in respect of a statutory property guardian who has been granted authority under section 36, if
(a) the authority of the statutory property guardian ends, and
(b) the statutory property guardian has passed all accounts before the Public Guardian and Trustee,
the statutory property guardian is released from all actions, claims and demands for or concerning the statutory property guardian's actions under this Act, except in respect of undisclosed acts, neglects, defaults or accounts, or dishonest or unlawful conduct.
Extrajurisdictional statutory property guardianship
39 (1) Subject to any limitation or condition set out in the regulations, a person who
(a) holds a statutory position, under an enactment of a province of Canada, equivalent to the Public Guardian and Trustee,
(b) is authorized by an enactment of a province of Canada to act in a manner similar to a statutory property guardian, and
(c) complies with any prescribed requirements,
may exercise powers and perform duties in British Columbia in respect of the adult for whom the person is acting, as if that person were a statutory property guardian under this Act.
(2) Subsection (1) also applies to a person who is acting under authority that has been delegated by a person described in subsection (1) (a).
5 Section 44.1 is repealed.
6 Section 45 (2) (b) is amended by striking out ", decision maker".
7 Section 46 (2) is amended by striking out "A person" and substituting "Despite the Freedom of Information and Protection of Privacy Act and the Personal Information Protection Act, a person".
8 Section 47 (1) (c) is amended by striking out "decision maker,".
9 Section 48 (2) (b) (iii) is amended by striking out ", business or assets".
10 Section 51 is amended
(a) by repealing subsection (1) (d),
(b) in subsection (1) (e) by striking out "30 days;" and substituting "90 days;",
(c) in subsection (1) (e) (iii) by striking out "assets, business or", and
(d) by repealing subsection (2) and substituting the following:
(2) An order may be made under subsection (1) (e) without notice to the adult or a person against whom the order is sought, if there are reasonable grounds for believing that proceeding without notice is necessary for the immediate protection of the adult.
11 Section 54 is amended
(a) by repealing subsection (2) (f) and substituting the following:
(f) the adult's attorney, representative or guardian; , and
(b) by adding the following subsection:
(4) Subsection (3) (b) does not apply if the only order being sought is an order under section 56 (3) (c).
12 Section 56 is amended
(a) in subsection (3) (c) (iii) by striking out "assets, business or",
(b) in subsections (4) (a), (d) and (e) and (7) by striking out "6 months" and substituting "one year", and
(c) in subsection (4) (e) by striking out ", business or assets".
13 Section 57 (4) (b) is amended by striking out "6 months" and substituting "one year".
14 Section 59 is amended
(a) in subsection (1) (b) (iii) by striking out "adult's assets" and substituting "adult's property", and
(b) in subsection (2) (d) by striking out ", business or assets".
15 The following section is added to Part 4:
Transfer of property by incapable adult
60.2 (1) If an adult transfers an interest in the adult's property while the adult is incapable, the transfer is voidable against the adult unless
(a) the interest was transferred for full and valuable consideration, and that consideration was actually paid or secured to the adult, or
(b) at the time of the transfer, a reasonable person would not have known that the adult was incapable.
(2) In a proceeding in respect of a transfer described in subsection (1), the onus of proving a matter described in subsection (1) (b) is on the person to whom the interest was transferred.
16 Section 61 (a) is repealed.
17 Sections 62 and 63 are repealed and the following substituted:
Right to information
62 (1) A designated agency, a qualified health care provider and the Public Guardian and Trustee have the right to all the information necessary to enable them to perform their duties, powers and functions under this Act.
(2) Any person who has custody or control of information that a designated agency, a qualified health care provider or the Public Guardian and Trustee is entitled to under subsection (1) must disclose that information to the designated agency, qualified health care provider or Public Guardian and Trustee, as applicable.
(3) This section overrides
(a) any claim of confidentiality or privilege, except a claim based on solicitor-client privilege, and
(b) any restriction in an enactment or the common law about the disclosure or confidentiality of information, except a restriction in section 51 of the Evidence Act.
Disclosing information
62.1 (1) A designated agency may disclose information obtained under this Act for the purposes of exercising the powers or performing the duties or functions of the designated agency under this Act.
(2) The Public Guardian and Trustee may disclose information obtained under this Act for the purposes of exercising the powers or performing the duties or functions of the Public Guardian and Trustee.
(3) A qualified health care provider who performs an assessment of an adult's incapability under this Act may disclose information obtained under this Act for the purposes of providing a report of the assessment to
(a) the Public Guardian and Trustee,
(b) a health authority designate, for the purposes of exercising the powers or performing the duties or functions of the health authority designate under this Act,
(c) a designated agency, for the purposes of exercising the powers or performing the duties or functions of the designated agency under this Act, and
(d) a person who
(i) makes a request, in writing, to the qualified health care provider for the report, and
(ii) confirms in the request that the report is to be used only for the purpose of an application to the court for an order under this Act.
(4) Subsection (3) overrides any restriction in an enactment or the common law about the disclosure or confidentiality of information.
Supreme Court jurisdiction
62.2 (1) Nothing in this Act
(a) limits the inherent jurisdiction of the court to act in a parens patriae capacity, or
(b) deprives a person of the right to ask the court to exercise that jurisdiction.
(2) On application by a guardian, the court may
(a) give directions regarding the scope of the guardian's powers and duties, and
(b) make any order in the best interests of the adult.
Costs of an application
62.3 For any matter for which an application may be made under Part 2 or 2.1, or section 62.2 (2), the court may order that the costs of the application be paid from the property of the adult who is the subject of the application.
Power to make regulations
63 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing bodies for the purpose of the definition of "health authority designate" in section 1, and conferring on those bodies the authority to designate a person for the purpose of issuing a certificate of incapability under section 32;
(b) prescribing Acts for the purpose of the definition of "health care provider" in section 1;
(c) prescribing classes of health care providers whose members may act as qualified health care providers;
(d) respecting procedures for assessments of incapability, including
(i) prescribing different procedures for assessments made for different purposes,
(ii) prescribing factors to be considered in an assessment of incapability, and
(iii) prescribing indicators of capability or incapability;
(e) respecting the making of an assessment report and the contents of the report;
(f) prescribing forms and certificates for the purposes of this Act;
(g) respecting plans for guardianship and plans for statutory property guardianship, including
(i) the form and content of plans,
(ii) requiring plans to be accompanied by an affidavit swearing to the truth of the matters set out in the plan and an undertaking to comply with the plan, and
(iii) prescribing the form of the affidavit and undertaking described in subparagraph (ii);
(h) prescribing informational material that must be served under section 5;
(i) respecting the value of gifts, loans or charitable gifts that may be made by a property guardian under section 17, expressed in any form, including as a percentage of net income, and including setting different values for different classes of gifts, loans and charitable gifts;
(j) setting out the circumstances in which a report must be made to the Public Guardian and Trustee under section 19 (5) (a) (iii);
(k) respecting matters to be considered by a personal guardian under section 20 (3);
(l) prescribing an amount for the purposes of section 21 (3) (e);
(m) respecting remuneration for property guardians, including
(i) setting tariffs, rates or limits,
(ii) expressing a tariff, rate or limit in any form, including as a percentage of an adult's net annual income,
(iii) setting conditions on remuneration, including when remuneration may be taken and requiring the passing of accounts before the court or the Public Guardian and Trustee as a condition of remuneration,
(iv) setting different tariffs, rates, limits or conditions for different classes of persons,
(v) permitting the Public Guardian and Trustee to reduce or disallow remuneration after reviewing a property guardian's accounts, and
(vi) permitting the Public Guardian and Trustee to require remuneration taken by a property guardian to be returned to the adult, with or without interest;
(n) respecting liens under section 24 (5), including
(i) setting conditions on entitlement to a lien,
(ii) conferring a discretion on the court to order that a guardian does not have a lien,
(iii) prescribing expenses and remuneration, and advances, for which a lien may be claimed, and limiting the amounts that may be claimed,
(iv) requiring a lien to be registered and respecting procedures and forms for the registration of a lien,
(v) setting priorities in respect of a lien claimed by a guardian on any real or personal property of the adult,
(vi) prohibiting a lien from being registered, and
(vii) respecting cancellation of a lien and respecting procedures and forms for the cancellation of a lien;
(o) prescribing offences for the purposes of sections 27 and 37;
(p) prescribing time limits within which a person must apply for a second assessment of incapability under section 33 (3);
(q) prescribing criteria for the purposes of section 33 (5);
(r) respecting records to be kept by a guardian, including the form and content of those records;
(s) respecting disclosure of information by the Public Guardian and Trustee under section 62.1;
(t) defining words and expressions used but not defined in this Act.
(3) The authority to make a regulation under subsection (2) (m) does not affect the authority to make a regulation under section 23 of the Public Guardian and Trustee Act.
(4) The Lieutenant Governor in Council may make regulations respecting mediation under section 6, including regulations
(a) respecting the circumstances in which a person must participate in mediation and the nature or extent of that participation,
(b) respecting matters that must not be the subject of mediation,
(c) setting out the rights and duties that accrue to the persons involved in mediation, the court and the mediator,
(d) respecting the forms and procedures that must or may be used or followed before, during and after the mediation process, including specifying a period of time after which a person may proceed to court under section 7 after completing mediation,
(e) respecting the confidentiality of information disclosed for the purposes of mediation,
(f) respecting the circumstances, if any, and manner in which a person involved in mediation may opt out of or be exempted from mediation,
(g) respecting the costs and other sanctions that may be imposed in relation to mediation, including, without limitation, in relation to any failure to participate in mediation when and as required or otherwise to comply with the regulations,
(h) respecting the qualifications required for, and the selection and identification of, individuals who may act as mediators in the mediation process contemplated by the regulations, and
(i) respecting the circumstances, if any, in which a hearing may proceed under section 7 without mediation, before mediation has been completed, or before any period of time prescribed under paragraph (d) of this subsection has elapsed.
(5) If and to the extent that there is any conflict between the regulations made under subsection (4) and any other enactment, including, without limitation, the rules of any court, the regulations made under subsection (4) prevail.
(6) The Lieutenant Governor in Council may make regulations respecting extrajurisdictional guardianship orders and extrajurisdictional statutory property guardianships for the purposes of sections 31 and 39, including
(a) limiting the application of sections 31 and 39 according to
(i) the jurisdiction in which the extrajurisdictional order or enactment was made, or
(ii) the residency of the person who is the subject of an extrajurisdictional order or extrajurisdictional statutory property guardianship,
(b) respecting
(i) confirmation by the court of a judgment, decree or order, and
(ii) registration or filing of a judgment, decree or order with the court,
(c) respecting certificates evidencing delegated authority for the purposes of section 39 (2), and registration or filing of the certificate with the court,
(d) requiring security to be posted,
(e) imposing conditions or limitations on the exercise of powers or performance of duties by a person acting under an extrajurisdictional order or enactment,
(f) conferring a discretion on the court to impose conditions or limitations on the exercise of powers or performance of duties by a person acting under an extrajurisdictional order,
(g) respecting the application of any provision of this Act or the regulations to a person acting under an extrajurisdictional order or enactment, and
(h) prescribing circumstances in which section 31 or 39 does not apply, or ceases to apply.
18 Section 65 is repealed and the following substituted:
Transition from the Patients Property Act
65 (1) If an adult is a patient within the meaning of paragraph (a) of the definition of "patient" in section 1 of the Patients Property Act at the time that section is repealed by the Adult Guardianship and Planning Statutes Amendment Act, 2007,
(a) the Public Guardian and Trustee is deemed to be the adult's statutory property guardian under this Act, and
(b) a reference to the patient in any instrument is deemed for the purposes of this Act to be a reference to the adult.
(2) If an adult who is a patient within the meaning of paragraph (b) of the definition of "patient" in section 1 of the Patients Property Act has, at the time that section is repealed by the Adult Guardianship and Planning Statutes Amendment Act, 2007, a committee with power and authority over the adult's person or the adult's affairs, or both,
(a) the person who, until the repeal of that section, was the committee is deemed to have been appointed under this Act as personal guardian or property guardian, or both, as applicable, with the same powers as the committee,
(b) the order appointing the committee is deemed to have been made under this Act, and
(c) a reference in the order to the committee or the patient is deemed for the purposes of this Act to be a reference to the guardian or the adult, respectively.
(3) In addition to the regulation making powers under section 63, the Lieutenant Governor in Council may make regulations the Lieutenant Governor in Council considers necessary or advisable to bring this Act into operation and to facilitate the transition from the Patients Property Act to this Act.
(4) The authority to make or amend a regulation under this section, but not the authority to repeal a regulation under this section, ends 3 years after the date on which this section comes into force.
Part 2 -- Planning Statutes Amendments
Health Care (Consent) and Care Facility (Admission) Act
19 Section 1 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, is amended
(a) by repealing the definitions of "designated agency", "guardian" and "substitute decision maker", and
(b) by adding the following definitions:
"advance directive" means a written instruction made by a capable adult that
(a) gives or refuses consent to health care for the adult in the event that the adult is not capable of giving the instruction at the time the health care is required, and
(b) complies with the requirements of Part 2.1;
"close friend", in respect of an adult who needs health care, means another adult who has a long-term, close personal relationship involving frequent personal contact with the adult, but does not include a person who receives compensation for providing personal care or health care to that adult;
"near relative", in respect of an adult who needs health care, means an adult child, a parent, a grandparent, an adult brother or sister, any other adult relation by birth or adoption, or a spouse of any of these;
"personal guardian" means a personal guardian appointed under the Adult Guardianship Act; .
20 Section 8 (b) is amended by striking out "relatives or friends," and substituting "near relatives or close friends,".
21 Section 9 is amended
(a) by adding the following subsections:
(1.1) For the purposes of sections 5 and 6, and despite section 6 (e) and (f), an adult may give or refuse consent to health care in an advance directive, except that an adult may not give consent in an advance directive to any health care for which a person chosen under section 16 could not give substitute consent under section 18 (1).
(1.2) If a capable adult gives or refuses consent to health care, the consent or refusal is not affected by any subsequent incapability. , and
(b) in subsection (3) by striking out "However," and substituting "As an exception to subsection (2),".
22 Sections 11 (b), 12 (1) (c) and (2), 12.2, 14 (1) (b) and 15 (b) are amended by striking out "substitute decision maker, guardian" wherever it appears and substituting "personal guardian".
23 Section 12 is amended by adding the following subsection:
(3) If a personal guardian or representative becomes available or a person is chosen under section 16 after a health care provider provides health care to an adult under this section, the personal guardian, representative or person chosen under section 16 may refuse consent for continued health care, and, if consent is refused, the health care must be withdrawn.
24 Sections 13 (b) and 14 (1) (a) and (4) are amended by striking out "relative or friend" and substituting "near relative or close friend".
25 Section 16 (1) is amended by adding the following paragraphs:
(d.1) the adult's grandparent;
(d.2) the adult's grandchild;
(f) a close friend of the adult;
(g) a person immediately related to the adult by marriage.
26 Section 17 is amended
(a) in subsection (3) by striking out "substitute decision maker or guardian" and substituting "personal guardian",
(b) in subsection (6) by striking out "substitute decision maker" and substituting "person", and
(c) by repealing subsection (7) and substituting the following:
(7) A person who has custody or control of any information or document referred to in subsection (6) must, at the request of a person chosen under section 16, disclose that information to the person chosen under section 16 or produce that document for inspection and copying by that person.
27 Section 18 is amended
(a) in subsection (1) by striking out "give substitute consent" and substituting "give or refuse substitute consent", and
(b) in subsection (2) (b) by striking out "and (2) (a)" and substituting "and (2)".
28 Section 19 is amended
(a) in subsection (1) (a) (ii) by striking out "friend or relative" and substituting "near relative or close friend",
(b) by repealing subsection (2) and substituting the following:
(2) If the adult's instructions or wishes are not known, the person chosen under section 16 must decide to give or refuse consent in the adult's best interests. , and
(c) by repealing subsection (3) (a) and substituting the following:
(a) the adult's current wishes, and known beliefs and values, .
29 The following Part is added:
Part 2.1 -- Advance Directives
Adult may make advance directive unless incapable
19.1 (1) An adult may make an advance directive unless the adult is incapable of understanding the nature and consequences of the proposed advance directive.
(2) An adult is incapable of understanding the nature and consequences of the proposed advance directive if the adult cannot understand
(a) the scope and effect of the health care instructions set out in the advance directive, and
(b) that a person will not be chosen under section 16 to make decisions on behalf of the adult about the health care described in the advance directive except in the circumstances set out in section 19.8.
Scope of advance directive
19.2 (1) Subject to subsection (2), an adult may in an advance directive give or refuse consent to any health care described in the advance directive.
(2) An instruction in an advance directive to do either or both of the following is not valid and must be severed from the advance directive:
(a) to do anything that is prohibited by law;
(b) to omit to do anything that is required by law.
If both advance directive and representation agreement
19.3 (1) Subject to subsection (2), if an adult makes both an advance directive and a representation agreement, regardless of when, in relation to each other, the advance directive and representation agreement are made,
(a) section 19.7 of this Act does not apply, and
(b) for the purposes of section 16 of the Representation Agreement Act, the instructions contained in the advance directive are to be treated as the wishes of the adult, expressed while capable.
(2) An adult may, in the adult's representation agreement, state that a health care provider may act in accordance with a health care instruction set out in the adult's advance directive without consent of the adult's representative, in which case section 19.7 applies in respect of that instruction.
Form of advance directive
19.4 (1) An adult who makes an advance directive must
(a) include or address in the advance directive any prescribed matter, and
(b) indicate in the advance directive that the adult knows that
(i) a health care provider may not provide to the adult any health care for which the adult refuses consent in the advance directive, and
(ii) a person may not be chosen to make decisions on behalf of the adult in respect of any health care for which the adult has given or refused consent in the advance directive.
Execution of advance directive
19.5 (1) Subject to subsections (2) to (5), an advance directive must be in writing and signed and dated by
(a) the adult in the presence of 2 witnesses, and
(b) both witnesses in the presence of the adult.
(2) Subject to subsection (3), an advance directive may be signed on behalf of an adult if
(a) the adult is physically incapable of signing the advance directive,
(b) the adult is present and directs that the advance directive be signed, and
(c) the signature of the person signing the advance directive on behalf of the adult is witnessed in accordance with this section, as if that signature were the adult's signature.
(3) The following persons must not sign an advance directive on behalf of an adult:
(a) a witness to the signing of the advance directive;
(b) a person prohibited from acting as a witness under subsection (5).
(4) Only one witness is required if the witness is a practising member of the Law Society of British Columbia or a member of the Society of Notaries Public of British Columbia.
(5) The following persons must not act as a witness to the signing of an advance directive:
(a) a person who provides personal care, health care or financial services to the adult for compensation, other than a practising member of the Law Society of British Columbia or a member of the Society of Notaries Public of British Columbia;
(b) a spouse, child, parent, employee or agent of a person described in paragraph (a);
(c) a person who is not an adult;
(d) a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.
Changing or revoking an advance directive
19.6 (1) An adult who has made an advance directive may change or revoke the advance directive unless the adult is incapable of understanding the nature and consequences of the change or revocation.
(2) A change must be in writing and must be signed and witnessed in the same manner as an advance directive under section 19.5.
(3) An adult may revoke an advance directive by
(a) making another document, including a subsequent advance directive, and expressing in it an intention to revoke the advance directive, or
(b) destroying the advance directive with the intention of revoking it.
Providing health care if adult has advance directive
19.7 (1) Subject to section 19.8, this section applies when
(a) in the opinion of a health care provider, an adult needs health care,
(b) the adult is incapable of giving or refusing consent to the health care, and
(c) the health care provider
(i) does not know of any personal guardian or representative who has authority to make decisions for the adult in respect of the proposed health care, and
(ii) is aware that the adult has an advance directive that is relevant to the proposed health care.
(2) A health care provider
(a) may provide health care to an adult if the adult has given consent to that health care in the adult's advance directive, and
(b) must not provide health care to an adult if the adult has refused consent to that health care in the adult's advance directive.
(3) A health care provider is not required to make more than a reasonable effort in the circumstances to determine whether the adult has an advance directive or a personal guardian or representative.
When advance directive does not apply
19.8 (1) This section applies if a health care provider reasonably believes that
(a) the instructions in an adult's advance directive do not address the health care decision to be made,
(b) in relation to a health care decision, the instructions in an adult's advance directive are so unclear that it cannot be determined whether the adult has given or refused consent to the health care,
(c) since the advance directive was made and while the adult was capable, the adult's wishes, values or beliefs in relation to a health care decision significantly changed, and the change is not reflected in the advance directive, or
(d) since the advance directive was made, there have been significant changes in medical knowledge, practice or technology that might substantially benefit the adult in relation to health care for which the adult has given or refused consent in an advance directive.
(2) Subject to subsection (3), in a circumstance described in subsection (1),
(a) section 19.7 does not apply,
(b) the health care provider must, despite any instruction or wish expressed in the advance directive respecting who may give substitute consent if the circumstances set out in subsection (1) apply, obtain substitute consent in accordance with section 11 or 16, and
(c) the person giving substitute consent must act in accordance with section 19 (3).
(3) Subsection (2) does not apply in the circumstance described in subsection (1) (d) if the adult, in the adult's advance directive, expressly states that the instructions given in the advance directive apply regardless of any change in medical knowledge, practice or technology.
(4) Nothing in this section affects the operation of sections 12 and 12.1.
Withdrawal of health care
19.9 If a health care provider
(a) is not aware that an adult has an advance directive that refuses consent to specific health care,
(b) provides the health care to the adult, and
(c) subsequently is made aware of an advance directive in which that adult refuses consent to that health care,
the health care provider must withdraw the health care, unless section 19.8 applies.
Advance directive must not be mandatory
19.91 An adult must not be required to have an advance directive as a condition of receiving any good or service.
Extrajurisdictional advance directives
19.92 Subject to any limitation or condition set out in the regulations, a document that
(a) performs the function of an advance directive,
(b) was made in a jurisdiction outside British Columbia, and
(c) complies with any prescribed requirements
is deemed to be an advance directive made under this Act.
30 The following section is added:
Court directions and orders
33.4 (1) The following people may apply to the court for an order under subsection (2):
(a) a health care provider responsible for the care of an adult who is incapable of giving or refusing consent to health care;
(b) an adult's representative or personal guardian;
(c) a person chosen under this Act to give or refuse substitute consent to health care or admission to a care facility on behalf of an adult who is incapable;
(d) an adult who is assessed as incapable of giving or refusing consent to health care or admission to a care facility.
(2) On application by a person described in subsection (1), the court may do one or more of the following:
(a) order the adult to attend at the time and place the court directs and submit to one or more assessments of incapability;
(b) give directions respecting
(i) the interpretation of a provision of an advance directive, or any other health care instruction or wish, made or expressed by an adult when capable, or
(ii) who should be chosen to provide substitute consent under this Act for an incapable adult;
(c) confirm, reverse or vary a decision by
(i) an adult's representative or personal guardian, or
(ii) a person chosen to provide substitute consent under this Act,
to give or refuse consent to health care or admission to a care facility;
(d) make any decision that a person chosen to provide substitute consent under this Act could make.
(3) Any person may apply to the court for an order voiding an advance directive on the basis that fraud, undue pressure or some other form of abuse or neglect was used to induce an adult to make the advance directive, or to change or revoke a previous advance directive.
(4) Nothing in this Act
(a) limits the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity, or
(b) deprives a person of the right to ask the Supreme Court to exercise that jurisdiction.
31 Section 34 is amended
(a) in subsection (2) by adding the following paragraphs:
(m) respecting matters that must be included or addressed in an advance directive;
(n) prescribing one or more forms of advance directives, the use of which is optional. , and
(b) by adding the following subsection:
(4) The Lieutenant Governor in Council may make regulations respecting extrajurisdictional advance directives for the purposes of section 19.92, including
(a) limiting the application of section 19.92 according to
(i) the jurisdiction in which the extrajurisdictional advance directive was made, or
(ii) the manner in which the extrajurisdictional advance directive was made or signed,
(b) respecting conditions or limitations on the operation of the extrajurisdictional advance directive,
(c) respecting the exercise of powers or performance of duties by a person authorized to act in respect of the extrajurisdictional advance directive,
(d) respecting the application of any provision of this Act or the regulations to a person acting in respect of the extrajurisdictional advance directive, and
(e) prescribing circumstances in which section 19.92 does not apply, or ceases to apply.
32 The following section is added:
Transitional -- advance directives
35.1 (1) The Lieutenant Governor in Council may make regulations setting out criteria by which written instructions made by a capable adult that
(a) give or refuse consent to health care in the event that the adult is not capable of giving the instruction at the time the health care is required, and
(b) were made before Part 2.1 comes into force,
may be deemed to be advance directives.
(2) If regulations are made under subsection (1), written instructions that meet the prescribed criteria are deemed to be advance directives.
33 The Health Care (Consent) and Care Facility (Admission) Act, as amended by the Supplements Repeal Act, S.B.C. 2006, c. 33, is amended
(a) in section 14 (9) (a) by striking out "substitute decision maker, guardian" and substituting "personal guardian",
(b) by repealing section 14 (10) and substituting the following:
(10) On being notified under subsection (9), the Public Guardian and Trustee may apply to the court under the Adult Guardianship Act for the appointment of, or a change to the appointment of, a personal guardian. , and
(c) in section 18 (3) by striking out "substitute decision maker or guardian" and substituting "personal guardian".
Power of Attorney Act
34 The Power of Attorney Act, R.S.B.C. 1996, c. 370, is amended by adding the following heading before section 1:
Part 1 -- General Powers of Attorney .
35 Section 1 is amended by striking out "In this Act:" and substituting "In this Part:".
36 The following section is added:
Interpretation
1.1 Nothing in Parts 2 and 3 of this Act affects the application of the common law to this Part.
37 Section 8 is repealed.
38 The following Parts are added:
Part 2 -- Enduring Powers of Attorney
Division 1 -- Definitions and Presumption of Capability
Definitions
10 In this Part and Part 3:
"adult" means an individual who is 19 years of age or older;
"attorney" means a person who
(a) is authorized under an enduring power of attorney to act as an attorney, and
(b) has signed the enduring power of attorney under section 17;
"court" means the Supreme Court of British Columbia;
"enduring power of attorney" means a power of attorney
(a) in which an adult authorizes an attorney to
(i) make decisions on behalf of the adult, or
(ii) do certain things
in relation to the adult's financial affairs, and
(b) that continues to have effect while, or comes into effect when, the adult is incapable;
"financial affairs" includes an adult's business and property, and the conduct of the adult's legal affairs;
"health care" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;
"health care provider" means a health care provider under the Adult Guardianship Act;
"near relative" means an adult child, a parent, a grandparent, an adult brother or sister or any other adult relation by birth or adoption;
"personal care" includes the following matters in respect of an adult:
(a) diet, dress and hygiene;
(b) health related activities, including medication;
(c) social, recreational, employment and educational activities;
(d) shelter, including admission to a care facility under the Health Care (Consent) and Care Facility (Admission) Act;
"qualified health care provider" means a qualified health care provider under the Adult Guardianship Act;
"spouse" means a person who
(a) is married to another person and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or
(b) is living with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender.
Adults presumed to be capable
11 (1) Until the contrary is demonstrated, an adult is presumed to be capable of
(a) making decisions about the adult's financial affairs, and
(b) understanding the nature and consequences of making, changing or revoking an enduring power of attorney.
(2) An adult's way of communicating with others is not grounds for deciding that the adult is incapable of making the decisions or having the understanding referred to in subsection (1).
Division 2 -- Making an Enduring Power of Attorney
Adult may make enduring power
of attorney unless incapable
12 (1) An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.
(2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:
(a) the property the adult has and its approximate value;
(b) the obligations the adult owes to his or her dependants;
(c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;
(d) that, unless the attorney manages the adult's business and property prudently, their value may decline;
(e) that the attorney might misuse the attorney's authority;
(f) that the adult may, if capable, revoke the enduring power of attorney;
(g) any other prescribed matter.
What enduring power of attorney may do
13 (1) An adult may, in an enduring power of attorney, authorize an attorney to
(a) make decisions on behalf of the adult, or
(b) do anything that the adult may lawfully do by an agent
in relation to the adult's financial affairs.
(2) An adult may grant general or specific powers to an attorney.
Enduring power of attorney must include
provision for continued authority
14 An adult who makes an enduring power of attorney must state in the enduring power of attorney
(a) whether the attorney may exercise authority
(i) while the adult is capable, or
(ii) only while the adult is incapable
of making decisions about the adult's financial affairs, and
(b) that the authority of the attorney continues despite the adult's incapability.
What enduring power of attorney must not do
15 A direction to an attorney to do either or both of the following is not valid and must be severed from an enduring power of attorney:
(a) to do anything that is prohibited by law;
(b) to omit to do anything that is required by law.
Adult must sign enduring power of attorney
16 (1) Subject to subsections (2) to (6), an enduring power of attorney must be in writing and signed and dated by
(a) the adult in the presence of 2 witnesses, and
(b) both witnesses in the presence of the adult.
(2) Subject to subsection (3), an enduring power of attorney may be signed on behalf of an adult if
(a) the adult is physically incapable of signing the enduring power of attorney,
(b) the adult is present and directs that the enduring power of attorney be signed, and
(c) the signature of the person signing the enduring power of attorney on behalf of the adult is witnessed in accordance with this section, as if that signature were the adult's signature.
(3) The following persons must not sign an enduring power of attorney on behalf of an adult:
(a) a witness to the signing of the enduring power of attorney;
(b) a person prohibited from acting as a witness under subsection (6).
(4) Only one witness is required if the witness is a practising member of the Law Society of British Columbia or a member of the Society of Notaries Public of British Columbia.
(5) If an enduring power of attorney is to be effective for the purposes of the Land Title Act, the enduring power of attorney must be executed and witnessed in accordance with the Land Title Act.
(6) The following persons must not act as a witness to the signing of an enduring power of attorney:
(a) a person named in the enduring power of attorney as an attorney;
(b) a spouse, child, parent, employee or agent of a person named in the enduring power of attorney as an attorney;
(c) a person who is not an adult;
(d) a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.
Attorney must sign enduring power of attorney
17 (1) Before a person may exercise the authority of an attorney granted in an enduring power of attorney, the person must sign the enduring power of attorney in the presence of 2 witnesses.
(2) The signing of an enduring power of attorney by an attorney is not required to be in the presence of the adult or any other attorney.
(3) Section 16 (2) to (4) and (6) applies to witnesses of an attorney's signature.
(4) A person named as an attorney in an enduring power of attorney who has not signed the enduring power of attorney is not required to give notice of any kind that the person is unwilling or unable to act as an attorney.
(5) If a person named as an attorney does not sign the enduring power of attorney, the authority of any other attorney is not affected, unless the enduring power of attorney states otherwise.
Division 3 -- Attorneys
Who may act as attorney
18 (1) An adult may name one or more of the following persons as an attorney:
(a) an individual, other than an individual who
(i) provides personal care or health care services to the adult for compensation, or
(ii) is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services;
(b) the Public Guardian and Trustee;
(c) a financial institution authorized to carry on trust business under the Financial Institutions Act.
(2) Despite subsection (1) (a), a spouse or near relative of the adult who receives compensation for providing personal care or health care services to the adult may be named as an attorney.
(3) If an individual who is not an adult is named as an attorney, the individual must not act as attorney until that individual is an adult.
(4) An adult who names more than one attorney may assign to each of them
(a) a different area of authority, or
(b) all or part of the same area of authority.
(5) If all or part of the same area of authority is assigned to more than one attorney, the attorneys must act unanimously in exercising the authority, unless the adult does one or more of the following in the enduring power of attorney:
(a) describes the circumstances in which the attorneys need not act unanimously;
(b) sets out how a conflict between attorneys is to be resolved;
(c) authorizes an attorney to act only as an alternate attorney and sets out
(i) the circumstances in which the alternate is authorized to act in place of the attorney, including, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and
(ii) the limits or conditions, if any, on the exercise of authority by the alternate.
Duties of attorney
19 (1) An attorney must
(a) act honestly and in good faith,
(b) exercise the care, diligence and skill of a reasonably prudent person,
(c) act within the authority given in the enduring power of attorney and under any enactment, and
(d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.
(2) When managing and making decisions about the adult's financial affairs, an attorney must act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.
(3) An attorney must do all of the following:
(a) to the extent reasonable, give priority when managing the adult's financial affairs to meeting the personal care and health care needs of the adult;
(b) unless the enduring power of attorney states otherwise, invest the adult's property only in accordance with the Trustee Act;
(c) to the extent reasonable, foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult;
(d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult's will, except if the disposition is necessary to comply with the attorney's duties;
(e) to the extent reasonable, keep the adult's personal effects at the disposal of the adult.
(4) An attorney must keep the adult's property separate from his or her own property.
(5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that
(a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or
(b) has been substituted for, or derived from, property described in paragraph (a).
Attorney's powers
20 (1) An attorney may make a gift or loan, or charitable gift, from the adult's property if the enduring power of attorney permits the attorney to do so or if
(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult's dependants, and to satisfy the adult's other legal obligations, if any,
(b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and
(c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value.
(2) An attorney may receive a gift or loan under subsection (1) if the enduring power of attorney permits.
(3) Permissions under subsections (1) and (2)
(a) must be express, and
(b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally.
(4) An attorney may retain the services of a qualified person to assist the attorney in doing anything the adult has authorized the attorney to do.
Attorney must not make a will for adult
21 An attorney must not make or change a will for the adult for whom the attorney is acting, and any will or change that is made for an adult by his or her attorney has no force or effect.
Liability of attorney
22 An attorney who acts in the course of the attorney's duties is not liable for any loss or damage to the adult's financial affairs if the attorney complies with
(a) the duties of the attorney as set out in section 19 and the enduring power of attorney,
(b) any directions of the court given under section 36 (1) (a), and
(c) any other duty that may be imposed by law.
No delegation by attorney
23 (1) Unless the enduring power of attorney states otherwise, an attorney must not delegate any decision-making authority given to the attorney in an enduring power of attorney.
(2) Despite subsection (1), unless the enduring power of attorney states otherwise, an attorney may delegate all or part of the attorney's authority in relation to investment matters to a qualified investment specialist, including a mutual fund manager, if done in accordance with,
(a) if the attorney is the Public Guardian and Trustee, the Public Guardian and Trustee Act, or
(b) in any other case, section 15.5 of the Trustee Act.
Payment and expenses of attorney
24 (1) An attorney must not be compensated for acting as an adult's attorney unless the enduring power of attorney expressly authorizes the compensation and sets the amount or rate.
(2) An attorney may be reimbursed from an adult's property for reasonable expenses properly incurred in acting as the adult's attorney.
Resignation of attorney
25 (1) In this section, "close friend", in respect of an adult who has made an enduring power of attorney, means another adult who has a long-term, close personal relationship involving frequent personal contact with the adult, but does not include a person who receives compensation for providing personal care or health care to the adult.
(2) An attorney may resign by giving written notice to the adult and any other attorneys named in the enduring power of attorney.
(3) In addition to the persons referred to in subsection (2), if the adult is incapable of making decisions at the time the attorney resigns, the attorney must give written notice of the resignation to a spouse, near relative or, if known to the attorney, close friend of the adult.
(4) The resignation of an attorney is effective
(a) when notice has been given under this section, or
(b) on a later date specified in the notice.
Division 4 -- Operation of Enduring Power of Attorney
When enduring power of attorney is effective
26 (1) An enduring power of attorney is effective on the latest of
(a) the date by which the enduring power of attorney has been signed both by the adult under section 16 and by an attorney under section 17,
(b) a date stated in the enduring power of attorney as being its effective date, and
(c) the date an event described in the enduring power of attorney as bringing the power of attorney into effect is confirmed to have occurred.
(2) If the enduring power of attorney, or a provision of it, is effective after a specified event occurs, the adult must state in the enduring power of attorney how and by whom the event is to be confirmed.
(3) If the adult specifies that the enduring power of attorney is effective when the adult is incapable of making decisions about the adult's financial affairs, and the person named to confirm the adult's incapability is incapable, unwilling or unable to act, a qualified health care provider may confirm whether the adult is incapable.
Acting when enduring power of attorney applies
27 (1) A capable adult may do anything that the adult has authorized an attorney to do, regardless of whether the enduring power of attorney is in effect.
(2) Subject to section 19 (2) and (3) (c), the attorney may act within the attorney's authority, despite the objections of the adult at the time of the act, if the adult is incapable when making those objections.
Changing or revoking enduring powers of attorney
28 (1) Subject to any limits or conditions in the enduring power of attorney, and unless the adult is incapable of understanding the nature and consequences of doing so, an adult who has made an enduring power of attorney may change or revoke the enduring power of attorney.
(2) After changing or revoking an enduring power of attorney, the adult must give written notice to each attorney.
(3) A change must be in writing and must be signed by the adult in the same manner as an enduring power of attorney under section 16.
(4) A change or revocation is effective when notice is given under subsection (2) or on a later date stated in the notice.
(5) A change to an enduring power of attorney is binding on an attorney who receives notice of the change, unless the attorney resigns under section 25.
When authority of attorney is suspended or ends
29 (1) The authority of an attorney is suspended in any circumstances set out in an enduring power of attorney, for as long as those circumstances continue.
(2) The authority of an attorney ends
(a) if the enduring power of attorney is terminated,
(b) if the provisions of the enduring power of attorney that give authority to the attorney are revoked,
(c) if the attorney resigns in accordance with section 25, or
(d) if the attorney
(i) is the adult's spouse and their marriage or marriage-like relationship ends,
(ii) becomes incapable or dies,
(iii) is bankrupt,
(iv) is a corporation and the corporation dissolves, winds up or ceases to carry on business, or
(v) is convicted of a prescribed offence or an offence in which the adult was the victim.
(3) Subsection (2) (d) (i) does not apply if the enduring power of attorney states that the authority of the attorney continues regardless of whether the marriage or marriage-like relationship ends.
(4) A marriage ends for the purposes of this section when an agreement, judgment or order referred to in section 56 of the Family Relations Act is first made in respect of the marriage.
(5) A marriage-like relationship ends for the purposes of this section when the parties to the marriage-like relationship stop cohabiting with each other, with the intention of ending the relationship.
(6) If the authority of an attorney ends under subsection (2), any remaining attorneys may continue to act unless the enduring power of attorney states otherwise.
(7) Anything lawfully done by an attorney on behalf of the adult, including making an agreement, remains binding on the adult after the authority of the attorney ends.
When enduring power of attorney is suspended or terminates
30 (1) If an adult becomes incapable after making an enduring power of attorney, any authority given to an attorney under the enduring power of attorney continues.
(2) An adult may set out in an enduring power of attorney any circumstances in which the enduring power of attorney is suspended, and, if those circumstances exist, the enduring power of attorney is suspended for as long as those circumstances continue.
(3) An enduring power of attorney is suspended in accordance with the Adult Guardianship Act if the adult has a statutory property guardian under that Act.
(4) An enduring power of attorney terminates
(a) according to the terms of the enduring power of attorney,
(b) if the adult who made the enduring power of attorney dies,
(c) if the court terminates the enduring power of attorney under section 36 (5),
(d) if the enduring power of attorney is terminated under section 12 or 33 (5) of the Adult Guardianship Act, or
(e) if the enduring power of attorney is revoked.
Improper exercise of authority
31 (1) In this section, an exercise of authority by an attorney is improper if, at the time the attorney acts,
(a) the authority of the attorney is suspended or has ended, or
(b) the enduring power of attorney or the provision of it under which the attorney acts is not in effect, or is suspended, terminated or invalid.
(2) An attorney is deemed to have had authority to act under an enduring power of attorney, and is not liable for acting without authority, if the attorney
(a) exercises authority improperly,
(b) does not know, and could not reasonably have known, that the exercise of authority was improper, and
(c) would have had authority to act if the applicable circumstances described in subsection (1) did not exist.
(3) If an attorney exercises authority improperly, the action is deemed to be valid and binding on the adult in respect of persons affected by the exercise of the authority who do not know and have no reason to believe that the exercise of authority is improper.
Part 3 -- General Matters Respecting Enduring
Powers of Attorney
Division 1 -- Information
Access to information
32 (1) An attorney may request information and records respecting the adult for whom the attorney is acting, if the information or records relate to
(a) the incapability of the adult, or
(b) an area of authority granted to the attorney.
(2) An attorney has the same right to information and records described under subsection (1) as does the adult for whom the attorney is acting.
(3) A qualified health care provider or other person who is responsible for assessing the adult's incapability may request information necessary for carrying out that assessment, and, for this purpose, section 62 of the Adult Guardianship Act applies to the qualified health care provider or other person as if the qualified health care provider or other person were conducting an assessment of incapability under that Act.
Disclosing information
33 An attorney must not disclose information or records obtained in the exercise of his or her authority except to the extent necessary to
(a) perform his or her duties,
(b) make a report to the Public Guardian and Trustee under section 34 (2) or comply with a requirement of the Public Guardian and Trustee, or
(c) make an application to, or comply with an order of, the court.
Division 2 -- Reports and Remedies
Reporting to Public Guardian and Trustee
34 (1) In this section, "abuse" and "neglect" have the same meaning as in the Adult Guardianship Act.
(2) Any person may make a report to the Public Guardian and Trustee if the person has reason to believe that
(a) an adult is, or was at the time, incapable of making, changing or revoking an enduring power of attorney,
(b) fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, change or revoke an enduring power of attorney, or
(c) an attorney is
(i) abusing or neglecting the person for whom the attorney is acting,
(ii) incapable of acting as an attorney, or
(iii) otherwise failing to comply with an enduring power of attorney or with the duties of an attorney.
(3) If a person makes a report, the Public Guardian and Trustee must promptly review the report and may do one or more of the following:
(a) conduct an investigation to determine the validity of the report, and, if an investigation is conducted, the Public Guardian and Trustee may advise the person who made the report of the outcome;
(b) apply to the court for an order described in section 36;
(c) advise the person who made the report that the person may apply to the court for an order described in section 36;
(d) make a report under section 46 of the Adult Guardianship Act;
(e) apply for a guardianship order under the Adult Guardianship Act, or take steps to become a statutory property guardian under that Act;
(f) take no action, or take any action that the Public Guardian and Trustee considers necessary.
(4) Unless the person acts falsely and maliciously, no action for damages may be brought against a person for
(a) making a report to the Public Guardian and Trustee under this section, or
(b) assisting in an investigation conducted by the Public Guardian and Trustee under this Act.
Investigations by Public Guardian and Trustee
35 (1) If the Public Guardian and Trustee has reason to believe that any of the circumstances set out in section 34 (2) exist, the Public Guardian and Trustee may conduct an investigation, regardless of whether a report has been made under that section.
(2) After conducting an investigation, the Public Guardian and Trustee may do anything set out in section 34 (3) (b) to (f).
Court directions and orders
36 (1) On application by an attorney, the court may
(a) give directions respecting the scope of an attorney's powers and duties, and
(b) make an order directing a person to release information to the attorney for the purpose of allowing the attorney to exercise the attorney's authority under this Act.
(2) On application by a person, the court may make an order that another person release information to the applicant if the court considers that the information is necessary to determine the incapability of an adult who is making, or who has made, an enduring power of attorney.
(3) On application by the Public Guardian and Trustee or an attorney, the court may make an order that an enduring power of attorney is valid despite a defect in the signing of the enduring power of attorney.
(4) On application by the Public Guardian and Trustee, the court may make any order that the court considers necessary to assist the Public Guardian and Trustee in carrying out the Public Guardian and Trustee's duties and powers under this Act, including an order directing a person to release information to the Public Guardian and Trustee for the purposes of an investigation.
(5) On application by the Public Guardian and Trustee or a person who made a report to the Public Guardian and Trustee under section 34, the court may make any order that the court considers necessary, including an order
(a) to confirm a change to, or the revocation of, an enduring power of attorney,
(b) to terminate all or part of an enduring power of attorney, or
(c) that, if the application concerns a matter described in section 34 (2) (a) or (b),
(i) the enduring power of attorney and all actions done under it are void, or
(ii) the enduring power of attorney is terminated, but any action done under it before it was terminated is not void.
(6) When making an order under subsection (5), the court must consider the wishes, instructions, beliefs and values of the adult who made the enduring power of attorney, and must not make a contrary order unless
(a) the adult is incapable, and
(b) the order is in the best interests of the adult.
(7) The costs of an application to the court are at the discretion of the court, and the court may order that all or part of those costs be paid from the property of the adult who made the enduring power of attorney.
Court jurisdiction
37 Nothing in this Act
(a) limits the inherent jurisdiction of the court to act in a parens patriae capacity, or
(b) deprives a person of the right to ask the court to exercise that jurisdiction.
Division 3 -- General
Extrajurisdictional powers of attorney
38 Subject to any limitation or condition set out in the regulations, a power of attorney that
(a) applies or continues to apply when an adult is incapable,
(b) was made in a jurisdiction outside British Columbia, and
(c) complies with any prescribed requirements
is deemed to be an enduring power of attorney made under this Act.
Offence Act does not apply
39 Section 5 of the Offence Act does not apply to Part 2 or 3, or the regulations.
Conflict with representation agreement
40 If any provision, respecting an adult's financial affairs, of a representation agreement made by an adult under the Representation Agreement Act is inconsistent with, or in conflict with, a provision of an enduring power of attorney made by the adult, the inconsistency or conflict is to be resolved in favour of the provision in the enduring power of attorney.
Power to make regulations
41 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing matters for the purposes of section 12 (2) (g);
(b) respecting records to be kept by an attorney, including the form and content of those records;
(c) respecting the value of gifts or loans, or charitable gifts, that may be made by an attorney under section 20 (1) (c), expressed in any form, including as a percentage of net income, and including setting different values for different classes of gifts, loans and charitable gifts;
(d) prescribing offences for the purposes of section 29 (2) (d) (v);
(e) defining words and expressions used but not defined in this Act.
(3) The minister may publish forms that may be used in the making of an enduring power of attorney, but it is not necessary for an adult to use a published form for an enduring power of attorney to be valid.
(4) The Lieutenant Governor in Council may make regulations respecting extrajurisdictional powers of attorney for the purposes of section 38, including
(a) limiting the application of section 38 according to
(i) the jurisdiction in which the extrajurisdictional power of attorney was made, or
(ii) the manner in which the extrajurisdictional power of attorney was made or signed,
(b) respecting conditions or limitations on the operation of the extrajurisdictional power of attorney,
(c) respecting the exercise of powers or performance of duties by a person authorized to act in respect of the extrajurisdictional power of attorney,
(d) respecting the application of any provision of this Act or the regulations to a person acting in respect of the extrajurisdictional power of attorney, and
(e) prescribing circumstances in which section 38 does not apply, or ceases to apply.
Transitional -- enduring powers of attorney
made before Parts 2 and 3 enacted
42 (1) An enduring power of attorney that was validly made under section 8, before the repeal of that section by the Adult Guardianship and Planning Statutes Amendment Act, 2007, is deemed to be an enduring power of attorney made under Part 2.
(2) If an enduring power of attorney that was validly made under section 8, before the repeal of that section by the Adult Guardianship and Planning Statutes Amendment Act, 2007, contains an authorization that is permitted under that section but would not otherwise be permitted under Part 2, the authorization continues to be valid.
39 Forms 1 and 2 of the Schedule are amended by striking out everything after "I can lawfully do by an attorney." and before "This power of attorney is subject".
Representation Agreement Act
40 Section 1 of the Representation Agreement Act, R.S.B.C. 1996, c. 405, is amended
(a) by repealing the definitions of "near relative" and "representation agreement" and substituting the following:
"near relative" means an adult child, a parent, a grandparent, an adult brother or sister or any other adult relation by birth or adoption;
"representation agreement" means an agreement made under section 7 or 9; , and
(b) by adding the following definition:
"personal care" includes matters respecting
(a) the shelter, employment, diet and dress of an adult,
(b) participation by an adult in social, educational, vocational and other activities,
(c) contact or association by an adult with other persons, and
(d) licences, permits, approvals or other authorizations of an adult to do something; .
41 Section 2 (a) is amended by striking out "health care, personal care or financial affairs or about other matters" and substituting "health care or personal care, the routine management of their financial affairs, or other matters".
42 Section 3 (1) (b) is amended by striking out "the adult's financial affairs, business and assets." and substituting "the routine management of the adult's financial affairs."
43 The following section is added to Part 1:
Representation agreement must not be mandatory
3.1 An adult must not be required to have a representation agreement as a condition of receiving any good or service.
44 Section 5 is amended
(a) by repealing subsection (1) (a) and substituting the following:
(a) an individual who is 19 years of age or older, other than an individual who
(i) provides personal care or health care services to the adult for compensation, or
(ii) is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services; ,
(b) by adding the following subsection:
(1.1) Despite subsection (1) (a), a spouse or near relative of the adult who receives compensation for providing personal care or health care services to the adult may be named as a representative. , and
(c) in subsection (4) by adding "made under section 7" after "agreement".
45 Section 7 is amended
(a) in subsection (1) by adding "made under this section," after "In a representation agreement",
(b) by repealing subsection (1) (a) and substituting the following:
(a) the adult's personal care; , and
(c) by repealing subsection (2.1) and substituting the following:
(2.1) A representative may not be authorized under this section
(a) to help make, or to make on the adult's behalf, a decision to refuse life-supporting care or treatment, or
(b) despite the objection of the adult, to physically restrain, move or manage the adult, or authorize another person to do these things.
46 Section 8 (1) is amended by repealing paragraphs (a) and (b) and substituting the following:
(a) making a contract,
(b) managing his or her health care, personal care or legal matters, or
(c) the routine management of his or her financial affairs.
47 Section 9 is repealed and the following substituted:
Non-standard representation agreements
9 (1) In a representation agreement made under this section, an adult may, subject to subsections (2) and (3), authorize his or her representative to
(a) do anything that the representative considers necessary in relation to the personal care or health care of the adult, or
(b) do one or more things, including any of the following:
(i) decide where the adult is to live and with whom, including whether the adult should live in a care facility;
(ii) decide whether the adult should work and, if so, the type of work, the employer, and any related matters;
(iii) decide whether the adult should participate in any educational, social, vocational or other activity;
(iv) decide whether the adult should have contact or associate with another person;
(v) decide whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity;
(vi) make day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;
(vii) give or refuse consent to health care for the adult, including giving or refusing consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided;
(viii) despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.
(2) Unless expressly provided for in a representation agreement made under this section, a representative must not
(a) give or refuse consent on the adult's behalf to any type of health care prescribed under section 34 (2) (f) of the Health Care (Consent) and Care Facility (Admission) Act,
(b) make arrangements for the temporary care and education of the adult's minor children, or any other persons who are cared for or supported by the adult, or
(c) interfere with the adult's religious practices.
(3) In a representation agreement made under this section, if a representative is provided the power to give or refuse consent to health care for the adult, the representative may give or refuse consent to health care necessary to preserve life.
48 Section 9.1 (c) is repealed and the following substituted:
(c) must be exercised in accordance with this Act and any other enactment.
49 Section 10 is amended by striking out "nature of the authority and the effect of giving it to the representative." and substituting "nature and consequences of the proposed agreement."
50 Section 11 is amended
(a) by renumbering the section as section 11 (1),
(b) in subsection (1) by striking out "and 9 (1) (c)" and substituting "and 9", and
(c) by adding the following subsection:
(2) A representative must not consent to the provision of professional services, care or treatment to the adult for the purposes of sterilization for non-therapeutic purposes.
51 Section 12 (1) is amended by adding "or" at the end of paragraph (a), by striking out "or" at the end of paragraph (b) and by repealing paragraph (c).
52 Section 13 is amended
(a) by repealing subsection (1.1) (b) and substituting the following:
(b) all certificates required under this section and sections 5, 6 and 12 are completed. , and
(b) by repealing subsections (2), (3.02), (3.1) and (5) to (6) and substituting the following:
(2) A representation agreement must be signed by the adult and
(a) if the representation agreement appoints more than one representative and the representatives must act jointly, each representative,
(b) if the representation agreement appoints only one representative, that representative, or
(c) if the representation agreement appoints more than one representative but each may act independently, at least one representative.
(2.1) Before a person may exercise the authority of a representative granted in a representation agreement, the person must sign the representation agreement.
(3.02) Only one witness is required if that witness is a practising member of the Law Society of British Columbia or a member of the Society of Notaries Public of British Columbia.
(5) The following persons must not act as a witness to the signing of a representation agreement:
(a) a person named in the representation agreement as a representative or alternate representative;
(b) a spouse, child, parent, employee or agent of a person named in the representation agreement as a representative or alternate representative;
(c) a person who is not an adult;
(d) a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.
(6) A witness to a representation agreement made under section 7, or signed under subsection (4) of this section, must complete a certificate in the prescribed form.
53 Section 16 is amended
(a) by repealing subsection (7) and substituting the following:
(7) If a representative makes health care decisions on behalf of an adult and the representative must, under subsection (4) (b) of this section, act in the adult's best interests, section 19 (3) of the Health Care (Consent) and Care Facility (Admission) Act applies. , and
(b) in subsection (9) by striking out "or 9 (1) (g)".
54 Section 18 is repealed and the following substituted:
Access to information
18 (1) A representative may request information and records respecting the adult for whom the representative is acting, if the information or records relate to
(a) the incapability of the adult, or
(b) an area of authority granted to the representative.
(2) A representative has the same right to information and records described under subsection (1) as does the adult for whom the representative is acting.
55 The following section is added:
Representative must not make a will for adult
19.01 A representative must not make or change a will for the adult for whom the representative is acting, and any will or change that is made for an adult by his or her representative has no force or effect.
56 Section 21 (3) (a) is amended by striking out "or 9 (1) (g)".
57 Section 22 is repealed and the following substituted:
Disclosing information
22 A representative or a monitor must not disclose information or records obtained in the exercise of his or her authority except to the extent necessary
(a) to perform his or her duties,
(b) for the purposes of an investigation of the Public Guardian and Trustee under section 30 (3) (a) or 31, or
(c) to make an application to, or comply with an order of, the court.
58 Section 23 (1) is amended by striking out "to the adult's financial affairs, business or assets." and substituting "arising from the routine management of the adult's financial affairs."
59 Section 26 (1) (c) is repealed and the following substituted:
(c) the court, on application by the person named in the representation agreement as a representative, alternate representative or monitor, authorized that the remuneration be paid.
60 Section 28 (1) is amended
(a) in subsection (1) by striking out "or 9 (1) (g)", and
(b) by repealing paragraph (d) and substituting the following:
(d) if the provision is terminated under section 12 (2) or 33 (5) of the Adult Guardianship Act.
61 Section 29 is amended
(a) by repealing subsection (1) (h) and substituting the following:
(h) on the termination of the representation agreement under section 12 (2) of the Adult Guardianship Act, or, if the representation agreement contains only provisions in respect of financial affairs, under section 33 (5) of that Act. , and
(b) by repealing subsection (1.1) and substituting the following:
(1.1) Subsection (1) (d) does not apply if the representation agreement provides that it does not end in the event of the termination of the marriage or marriage-like relationship, as the case may be.
62 Section 30 (3) (g.2) is amended by striking out "or 9 (1) (g)".
63 Section 41 is repealed and the following substituted:
Extrajurisdictional representation agreements
41 Subject to any limitation or condition set out in the regulations, an agreement that
(a) performs the function of a representation agreement,
(b) was made in a jurisdiction outside British Columbia, and
(c) complies with any prescribed requirements
is deemed to be a representation agreement made under this Act.
64 Section 42 is amended
(a) in subsection (2) by repealing paragraphs (a) to (a.2) and substituting the following:
(a.1) respecting what constitutes "routine management of the adult's financial affairs" for the purposes of section 7 (1) (b), including regulations
(i) limiting, by type or monetary amount, or
(ii) modifying or supplementing
the matters listed in section 7 (1) (b) (i) to (iv);
(a.2) respecting accounts and other records that must be kept by a representative, including the form and content of those records; , and
(b) by adding the following subsection:
(4) The Lieutenant Governor in Council may make regulations respecting extrajurisdictional representation agreements for the purposes of section 41, including
(a) limiting the application of section 41 according to
(i) the jurisdiction in which the extrajurisdictional representation agreement was made, or
(ii) the manner in which the extrajurisdictional representation agreement was made or signed,
(b) respecting conditions or limitations on the operation of the extrajurisdictional representation agreement,
(c) respecting the exercise of powers or performance of duties by a person authorized to act in respect of the extrajurisdictional representation agreement,
(d) respecting the application of any provision of this Act or the regulations to a person acting in respect of the extrajurisdictional representation agreement, and
(e) prescribing circumstances in which section 41 does not apply, or ceases to apply.
65 The following sections are added:
Transitional -- financial support provisions
in representation agreements
44.2 If a representation agreement made before the repeal of section 9 (1) (f) of the Representation Agreement Act by the Adult Guardianship and Planning Statutes Amendment Act, 2007 authorized a representative to make financial support arrangements as described in that paragraph on an adult's behalf, the representative may continue to exercise that authority as described in the representation agreement.
Transitional -- non-routine financial provisions
in representation agreements
44.3 (1) In this section:
"powers of an attorney" means the power to do, on an adult's behalf, anything that can be done by an attorney acting under a power of attorney;
"representation agreement" means a representation agreement made before the repeal of section 9 (1) (g) of the Representation Agreement Act by the Adult Guardianship and Planning Statutes Amendment Act, 2007.
(2) If a representation agreement authorizes a representative to exercise the powers of an attorney,
(a) the representative
(i) may continue to exercise the powers of an attorney as described in the representation agreement, and
(ii) for these purposes is deemed to be an attorney under the Power of Attorney Act,
(b) that part of the representation agreement that authorizes the representative to exercise the powers of an attorney is deemed to be an enduring power of attorney under Part 2 of the Power of Attorney Act, and
(c) despite the repeal of section 9 (1) (g) of the Representation Agreement Act, a monitor appointed under that Act for the purposes of monitoring the representative's exercise of the powers of an attorney continues to have all of the powers, and must continue to exercise all of the duties, of a monitor under that Act as it read before the repeal.
Part 3 -- Transitional, Repeals and
Consequential Amendments
Transitional Provision
Transitional -- amendments to add dates of repeal
66 The Lieutenant Governor in Council may make regulations to amend the following transitional provisions to add the date on which a provision or Act referenced in the transitional provision was repealed or came into force:
(a) section 65 of the Adult Guardianship Act, as enacted by section 18 of this Act;
(b) section 35.1 of the Health Care (Consent) and Care Facility (Admission) Act, as enacted by section 32 of this Act;
(c) section 42 of the Power of Attorney Act, as enacted by section 38 of this Act;
(d) section 44.1 of the Representation Agreement Act;
(e) sections 44.2 and 44.3 of the Representation Agreement Act, as enacted by section 65 of this Act.
Repeal
Patients Property Act
67 The Patients Property Act, R.S.B.C. 1996, c. 349, is repealed.
Consequential Amendments
Adult Guardianship Statutes Amendment Act, 1999
68 Section 25 of the Adult Guardianship Statutes Amendment Act, 1999, S.B.C. 1999, c. 25, is repealed.
Assessment Act
69 Section 1 (1) of the Assessment Act, R.S.B.C. 1996, c. 20, is amended by repealing the definition of "trustee" and substituting the following:
"trustee" includes
(a) a statutory property guardian or property guardian under the Adult Guardianship Act,
(b) an attorney under Part 2 of the Power of Attorney Act,
(c) a receiver, and
(d) any person having or taking on the possession, administration or control of property affected by any express trust, or having, by law, the possession, management or control of the property of a person under a legal disability.
Community Care and Assisted Living Act
70 Section 18 of the Community Care and Assisted Living Act, S.B.C. 2002, c. 75, is amended
(a) in subsection (1) by repealing paragraph (d) of the definition of "personal representative" and substituting the following:
(d) an attorney under Part 1 or 2 of the Power of Attorney Act;
(e) a statutory property guardian or property guardian under the Adult Guardianship Act. ,
(b) by repealing subsection (3) (c) and (d) and substituting the following:
(c) act under the authority of a power of attorney or enduring power of attorney under the Power of Attorney Act, granted to the licensee by a person in care;
(d) act as a personal representative of the estate of a person in care or formerly in care, unless the licensee is a child, parent or spouse of the person in care or formerly in care; , and
(c) by repealing subsection (5) and substituting the following:
(5) A power of attorney or enduring power of attorney as described in subsection (3) (c), or a disposition made under either of them, is void unless
(a) the licensee is a child, parent or spouse of the person in care, or
(b) the Public Guardian and Trustee consents in writing to the power of attorney, the enduring power of attorney, or the disposition.
Court Rules Act
71 Section 1 (2) (f) of the Court Rules Act, R.S.B.C. 1996, c. 80, is repealed and the following substituted:
(f) all matters arising under the Adult Guardianship Act, Part 1 of the Infants Act, the Land Title Inquiry Act, Parts 2 and 3 of the Power of Attorney Act, and the Wills Variation Act; .
Credit Union Incorporation Act
72 Section 1 (1) of the Credit Union Incorporation Act, R.S.B.C. 1996, c. 82, is amended in the definition of "trust business" by repealing paragraphs (c) and (d) and substituting the following:
(c) statutory property guardian or property guardian under the Adult Guardianship Act;
(d) attorney under Part 2 of the Power of Attorney Act;
(e) representative granted power over an adult's financial affairs under section 7 (1) (b) of the Representation Agreement Act.
Enforcement of Canadian Judgments and Decrees Act
73 Section 1 (1) of the Enforcement of Canadian Judgments and Decrees Act, S.B.C. 2003, c. 29, is amended in the definition of "Canadian judgment" by deleting "or" at the end of paragraph (b), by adding "or" at the end of paragraph (c), and by adding the following paragraph immediately after paragraph (c):
(c.1) that
(i) appoints a person to carry out duties comparable to those of a guardian, as that term is defined in the Adult Guardianship Act, and
(ii) has been registered under this Act, in accordance with the Adult Guardianship Act and the regulations made under it, .
Estate Administration Act
74 The Estate Administration Act, R.S.B.C. 1996, c. 122, is amended by adding the following section:
Effect of disposition of property subject to
specific testamentary gift
67.2 (1) In this section, "proceeds" means the proceeds at the time of disposition, and includes
(a) any non-monetary consideration, and
(b) in the case of a gift, the fair market value of the gift.
(2) If property that is the subject of a specific gift under a will is disposed of by
(a) an attorney acting under Part 2 of the Power of Attorney Act,
(b) a statutory property guardian or property guardian acting under the Adult Guardianship Act, or
(c) a representative acting under section 7 (1) (b) of the Representation Agreement Act,
the beneficiary is entitled to receive from the testator's estate an amount equivalent to the proceeds of the disposition, as if the will had contained a specific gift to the beneficiary of that amount.
(3) Subsection (2) does not apply if
(a) the disposition is made to carry out the testator's instructions, given at a time when the testator was capable, or
(b) a contrary intention is expressed in the testator's will.
75 Section 112 is amended
(a) in subsection (3) by striking out "is dead or the person's whereabouts is unknown," and substituting "or a representative referred to in subsection (5) is dead, or the person's or representative's location is unknown,",
(b) by repealing subsection (5) and substituting the following:
(5) If a person referred to in subsection (1) (a) is or may be a mentally disordered person, or has a representative, the notice under subsection (1) must be mailed or delivered
(a) to the representative, if there is one and the representative is known to the applicant, unless the representative is the applicant, and
(b) to the Public Guardian and Trustee. ,
(c) in subsection (8.1) (b) by striking out "committee or", and
(d) by adding the following subsection:
(10) For the purposes of this section, "representative" means
(a) an attorney acting under Part 2 of the Power of Attorney Act,
(b) a statutory property guardian or property guardian acting under the Adult Guardianship Act, or
(c) a representative acting under section 7 (1) (b) of the Representation Agreement Act.
Expropriation Act
76 Section 1 of the Expropriation Act, R.S.B.C. 1996, c. 125, is amended in the definition of "owner" by repealing paragraph (b) and substituting the following:
(b) a statutory property guardian or property guardian under the Adult Guardianship Act,
(b.1) an attorney under Part 2 of the Power of Attorney Act,
(b.2) a guardian, executor, administrator or trustee in whom land is vested, or .
Family Relations Act
77 Section 91 of the Family Relations Act, R.S.B.C. 1996, c. 128, is amended
(a) by adding the following subsections:
(2.3) An attorney may apply for an order under this Part on behalf of a parent described in section 90 of this Act, if the attorney is authorized to act for the parent by an enduring power of attorney made under the Power of Attorney Act.
(2.4) A statutory property guardian or a property guardian may apply for an order under this Part on behalf of a parent described in section 90 of this Act, if the statutory property guardian or property guardian is authorized to act for the parent under the Adult Guardianship Act. , and
(b) in subsection (4) by striking out "subsection (1), (2) or (3)" and substituting "any of subsections (1) to (3)".
Financial Institutions Act
78 Section 1 (1) of the Financial Institutions Act, R.S.B.C. 1996, c. 141, is amended in the definition of "trust business"
(a) by repealing paragraphs (c) and (d) and substituting the following:
(c) statutory property guardian or property guardian under the Adult Guardianship Act,
(d) attorney under Part 2 of the Power of Attorney Act, or
(e) representative granted power over an adult's financial affairs under section 7 (1) (b) of the Representation Agreement Act, , and
(b) by striking out "paragraphs (a) to (d)" and substituting "paragraphs (a) to (e)".
79 Section 73 (1) and (4) is amended by striking out "representative under the Representation Agreement Act, guardian or committee" and substituting "statutory property guardian or property guardian under the Adult Guardianship Act, attorney under Part 2 of the Power of Attorney Act or representative granted power over an adult's financial affairs under section 7 (1) (b) of the Representation Agreement Act".
Health Emergency Act
80 Section 11 of the Health Emergency Act, R.S.B.C. 1996, c. 182, is amended
(a) by renumbering the section as section 11 (1), and
(b) by adding the following subsection:
(2) An emergency medical assistant must not perform an emergency procedure under subsection (1) if the emergency medical assistant has reasonable grounds to believe that the person has made an advance directive, as defined in the Health Care (Consent) and Care Facility (Admission) Act, that refuses consent to the emergency procedure.
Health Professions Amendment Act, 2003
81 Section 45 of the Health Professions Amendment Act, 2003, S.B.C. 2003, c. 57, is repealed and the following substituted:
45 Section 11 (1) of the Health Emergency Act, R.S.B.C. 1996, c. 182, is amended by striking out "medicine without being registered under the Medical Practitioners Act;" and substituting "medicine;".
Home Owner Grant Act
82 Section 8 (2) and (2.1) of the Home Owner Grant Act, R.S.B.C. 1996, c. 194, is repealed and the following substituted:
(2) If an applicant is unable to apply, the application may be made by the applicant's
(a) statutory property guardian or property guardian under the Adult Guardianship Act,
(b) attorney under Part 2 of the Power of Attorney Act, or
(c) representative under the Representation Agreement Act, if the representative has power over the adult's financial affairs under section 7 (1) (b) of that Act.
Insurance (Motor Vehicle) Act
83 Section 32 (1) and (1.1) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, is repealed and the following substituted:
(1) A payment of benefits or insurance money for or on behalf of
(a) a minor, or
(b) an adult who is incapable of making decisions about the adult's financial affairs, business or property and does not have
(i) a statutory property guardian or property guardian under the Adult Guardianship Act,
(ii) an attorney under Part 2 of the Power of Attorney Act, or
(iii) a representative having power over the adult's financial affairs under section 7 (1) (b) of the Representation Agreement Act,
must be made to the Public Guardian and Trustee, to be administered as the Public Guardian and Trustee considers advisable, and the Public Guardian and Trustee may make arrangements with other persons, societies or agencies for this purpose.
Insurance (Vehicle) Act
84 Section 92 (1) and (2) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, is repealed and the following substituted:
(1) A payment of insurance money for or on behalf of
(a) a minor, or
(b) an adult who is incapable of making decisions about the adult's financial affairs, business or property and does not have
(i) a statutory property guardian or property guardian under the Adult Guardianship Act,
(ii) an attorney under Part 2 of the Power of Attorney Act, or
(iii) a representative having power over the adult's financial affairs under section 7 (1) (b) of the Representation Agreement Act,
must be made to the Public Guardian and Trustee, to be administered as the Public Guardian and Trustee considers advisable, and the Public Guardian and Trustee may make arrangements with other persons, societies or agencies for this purpose.
Land Title Act
85 Section 1 of the Land Title Act, R.S.B.C. 1996, c. 250, is amended by adding the following definitions:
"enduring power of attorney" means an enduring power of attorney made under Part 2 of the Power of Attorney Act;
"power of attorney" means, unless the context provides otherwise,
(a) a power of attorney made under Part 1 of the Power of Attorney Act, and
(b) an enduring power of attorney made under Part 2 of the Power of Attorney Act; .
86 Section 45 (1) (a) is amended
(a) in subparagraph (ii) by repealing clauses (A) and (B) and substituting the following:
(A) if the power of attorney is not an enduring power of attorney, the individual had, at that time, no knowledge of the mental infirmity of the transferor, or
(B) in the case of an enduring power of attorney, the individual had, at that time, no knowledge of the suspension or termination of his or her authority under any enactment, , and
(b) by adding the following subparagraph:
(ii.1) each change to the authority of an attorney under an enduring power of attorney has been filed with the registrar under this Act or a copy, certified under section 51 (4) as a true copy of those changes, has been filed, and .
87 Section 46 (1) (a) is amended
(a) in subparagraph (iv) by repealing clauses (A) and (B) and substituting the following:
(A) if the power of attorney is not an enduring power of attorney, the individual had, at that time, no knowledge of the mental infirmity of the transferor, or
(B) in the case of an enduring power of attorney, the individual had, at that time, no knowledge of the suspension or termination of his or her authority under any enactment, , and
(b) by adding the following subparagraph:
(iv.1) each change to the authority of an attorney under an enduring power of attorney has been filed with the registrar under this Act or a copy, certified under section 51 (4) as a true copy of those changes, has been filed, and .
88 Section 47.1 is repealed.
89 Section 51 (2.1), (4.1) and (6) is repealed and the following substituted:
(2.1) In the case of an agreement that is
(a) an enduring power of attorney signed under section 16 (2) of the Power of Attorney Act, or
(b) a representation agreement deemed to be an enduring power of attorney under section 44.3 of the Representation Agreement Act, signed under section 13 (4) of that Act,
the signature of the person signing the agreement on behalf of the adult making the agreement is deemed to be the adult's signature for the purposes of this Act.
90 Section 56 (3) is repealed and the following substituted:
(3) For the purpose of this Act, but subject to section 57 (1), an enduring power of attorney that is filed under section 51 of this Act remains valid, unless terminated
(a) under section 12 or 33 (5) of the Adult Guardianship Act, and a copy of the order or notice of termination is filed in the land title office, or
(b) by another means.
91 Section 282 (2) and (2.1) is repealed and the following substituted:
(2) A statutory property guardian or property guardian acting under the Adult Guardianship Act may lodge a caveat with the registrar if the statutory property guardian or property guardian certifies
(a) that he or she has the authority to act as statutory property guardian or property guardian under the Adult Guardianship Act, and
(b) that the land of the person for whom he or she is acting is or may be endangered.
(2.1) An attorney acting under an enduring power of attorney may lodge a caveat with the registrar if the attorney certifies
(a) that the attorney has the authority to act as attorney under Part 2 of the Power of Attorney Act, and
(b) that the land of the person for whom the attorney is acting is or may be endangered.
Legal Profession Act
92 Section 35 of the Legal Profession Act, S.B.C. 1998, c. 9, is amended
(a) in paragraph (c) by striking out "decision maker" and substituting "statutory property guardian", and
(b) by adding the following paragraph:
(c.1) an attorney under Part 2 of the Power of Attorney Act; .
93 Section 50 (6) (g) is amended
(a) in subparagraph (iii) by striking out "decision maker" and substituting "statutory property guardian", and
(b) by adding the following subparagraph:
(iii.1) an attorney under Part 2 of the Power of Attorney Act; .
Limitation Act
94 Section 7 (1) (b) of the Limitation Act, R.S.B.C. 1996, c. 266, is amended by striking out "a committee appointed under the Patients Property Act." and substituting "a statutory property guardian or property guardian acting under the Adult Guardianship Act."
Mental Health Act
95 Section 1 of the Mental Health Act, R.S.B.C. 1996, c. 288, is amended
(a) in the definition of "director" by striking out "or the Patients Property Act", and
(b) by repealing the definition of "near relative" and substituting the following:
"near relative", in respect of a patient, means a grandparent, parent, son, daughter, spouse, sibling, half brother or half sister, friend, caregiver or companion designated by the patient, and includes
(a) the legal guardian of a minor,
(b) a personal guardian appointed under the Adult Guardianship Act, and
(c) a representative under a representation agreement made under the Representation Agreement Act; .
96 Section 11 is amended
(a) in subsections (1) and (2) by striking out ", committee", and
(b) by adding the following subsection:
(4) For the purposes of this section, "guardian" means a statutory property guardian or property guardian under the Adult Guardianship Act.
Mineral Tax Act
97 Section 12 (5) of the Mineral Tax Act, R.S.B.C. 1996, c. 291, is amended by striking out "or committee" and substituting ", statutory property guardian or property guardian under the Adult Guardianship Act".
Notaries Act
98 Section 18 of the Notaries Act, R.S.B.C. 1996, c. 334, is amended by repealing paragraph (e.1) and substituting the following:
(e.1) draw instruments for the purposes of the Representation Agreement Act;
(e.2) draw instruments relating to health care for the purposes of making advance directives, as defined in the Health Care (Consent) and Care Facility (Admission) Act;
(e.3) draw instruments for the purposes of the Power of Attorney Act; .
Partition of Property Act
99 Section 9 (1) of the Partition of Property Act, R.S.B.C. 1996, c. 347, is repealed and the following substituted:
(1) In a proceeding for partition, a request for sale may be made or an undertaking to purchase given on the part of an infant, of an adult who is incapable of making decisions relating to the adult's financial affairs or of a person under any other disability, by
(a) the infant's litigation guardian or guardian,
(b) the adult's statutory property guardian under the Adult Guardianship Act,
(c) the adult's property guardian under the Adult Guardianship Act, if authorized to do so by the court, or
(d) the adult's attorney under an enduring power of attorney.
Partnership Act
100 Section 38 (1) (a) of the Partnership Act, R.S.B.C. 1996, c. 348, is amended by striking out "Patients Property Act" and substituting "Adult Guardianship Act".
Personal Property Security Act
101 Section 1 (1) of the Personal Property Security Act, R.S.B.C. 1996, c. 359, is amended by repealing the definition of "creditor" and substituting the following:
"creditor" includes an assignee for the benefit of a creditor, an executor or administrator of a creditor, or a statutory property guardian or property guardian acting under the Adult Guardianship Act on behalf of a creditor; .
Pharmacists, Pharmacy Operations and Drug Scheduling Act
102 Section 1 of the Pharmacists, Pharmacy Operations and Drug Scheduling Act, R.S.B.C. 1996, c. 363, is amended in the definition of "personal representative", as enacted by section 21 (b) of the Health Statutes Amendment Act, 2007, by repealing paragraph (b) and substituting the following:
(b) a personal guardian under the Adult Guardianship Act; .
Pharmacy Operations and Drug Scheduling Act
103 Section 1 of the Pharmacy Operations and Drug Scheduling Act, S.B.C. 2003, c. 77, is amended in the definition of "personal representative", as enacted by section 29 (b) of the Health Statutes Amendment Act, 2007, by repealing paragraph (b) and substituting the following:
(b) a personal guardian under the Adult Guardianship Act; .
Property Law Act
104 Section 27.1 of the Property Law Act, R.S.B.C. 1996, c. 377, is repealed and the following substituted:
Validity of sale, transfer or charge by
attorney to self
27.1 (1) In this section:
"agreement" means an enduring power of attorney made under Part 2 of the Power of Attorney Act;
"attorney" means a person named in an enduring power of attorney as an attorney.
(2) A sale, transfer or charge to or in favour of an attorney by the attorney of land owned by the adult who made an agreement, and purporting to be made under the agreement, is not valid unless the sale, transfer or charge is expressly authorized by that agreement.
Public Guardian and Trustee Act
105 Section 1 of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, is amended
(a) by repealing the definitions of "decision maker" and "guardian", and substituting the following:
"guardian" means, except in sections 7 and 8, a statutory property guardian or guardian under the Adult Guardianship Act; , and
(b) by adding the following definitions:
"enduring power of attorney" means an enduring power of attorney made under Part 2 of the Power of Attorney Act;
"power of attorney" means a power of attorney made under Part 1 of the Power of Attorney Act;
"representative" means a representative authorized to act under a representation agreement; .
106 Section 5 (1) (a) is amended by striking out "including the Adult Guardianship Act, the Health Care (Consent) and Care Facility (Admission) Act and the Representation Agreement Act,".
107 Section 6 is amended
(a) in paragraph (b) by repealing subparagraph (iii) and substituting the following:
(iii) by a court,
(iv) by a statute, or
(v) by agreement of the Public Guardian and Trustee, and , and
(b) in paragraph (c) by striking out "a power of attorney." and substituting "a power of attorney or an enduring power of attorney."
108 Section 17 is repealed and the following substituted:
Power to investigate and audit
17 (1) The Public Guardian and Trustee may investigate and audit the affairs, dealings and accounts of
(a) a trust, a beneficiary of which is or may be
(i) a young person,
(ii) an adult who has a guardian, or
(iii) an adult who does not have a guardian but who is apparently abused or neglected, as defined in the Adult Guardianship Act,
(b) an adult who does not have a guardian, a representative or an attorney under an enduring power of attorney but who is apparently abused or neglected, as defined in the Adult Guardianship Act,
(c) an attorney under a power of attorney or an enduring power of attorney, if the Public Guardian and Trustee has reason to believe that the person who granted the power of attorney or enduring power of attorney is incapable of managing his or her financial affairs, business or assets,
(c) a representative, or
(d) a guardian,
if the Public Guardian and Trustee has reason to believe that the interest in the trust, or the assets of the young person or adult, may be at risk, or that the representative, guardian or attorney has failed to comply with his or her duties.
(2) In addition, the Public Guardian and Trustee may investigate the personal care and health care decisions made by a representative or guardian, if the Public Guardian and Trustee has reason to believe the representative or guardian has failed to comply with his or her duties.
(3) Despite the Freedom of Information and Protection of Privacy Act, the Public Guardian and Trustee must not disclose or be compelled to disclose the identity of a person who makes a report resulting in an investigation or audit under this section.
109 Section 18 is amended
(a) in subsection (2) by striking out ", decision maker" wherever it appears,
(b) in subsection (2) (a) by striking out "the Public Guardian and Trustee considers necessary for the investigation or audit;" and substituting "the Public Guardian and Trustee considers necessary for the investigation or audit, including any report or information relevant to the incapability of an adult;", and
(c) in subsection (2) (b) (ii) by striking out "health care records;" and substituting "health care records, including any report or information relevant to the incapability of an adult;".
110 Section 19 is amended
(a) by repealing subsection (2) (b) and substituting the following:
(b) direct any source of income for the young person or the adult to send the income to the Public Guardian and Trustee or to a person named by the Public Guardian and Trustee
(i) to be held in trust for the young person or adult, or
(ii) to be used to protect or maintain the health or safety of the young person or adult; ,
(b) in subsection (3) by striking out "7 days" and substituting "30 days", and
(c) by adding the following subsection:
(4) A step taken under subsection (2) may be renewed, but
(a) each renewal period must not be longer than 30 days, and
(b) the step taken must not continue for longer than a total of 90 days.
Repeals in this Act
111 Sections 83 and 84 of this Act may be repealed by regulation of the Lieutenant Governor in Council.
Commencement
112 This Act comes into force by regulation of the Lieutenant Governor in Council.
Explanatory Notes
SECTION 1: [Adult Guardianship Act, section 1] deletes, adds and modifies definitions,
consequential to the repeal and replacement of Part 2 and the enactment of
Part 2.1 by this Bill.
SECTION 2: [Adult Guardianship Act, section 2] is consequential to the enactment of the
definition of "financial affairs" and to the repeal and replacement of Part 2 of
the Act.
SECTION 3: [Adult Guardianship Act, section 3] is consequential to the enactment of the
definition of "financial affairs".
SECTION 4: [Adult Guardianship Act, Parts 2 and 2.1] repeals Part 2 of the Act and
- substitutes a new Part 2 (which replaces the Patients Property Act) to enable the court to make a guardianship order, which would allow a person to make decisions respecting an incapable adult's personal care and health care, financial affairs or both on behalf of the adult, and includes
- the circumstances in which a guardian may be appointed,
- the process for having a guardian appointed,
- who may be appointed, and the powers and duties of a guardian, and
- the circumstances in which an order for guardianship may be reviewed, suspended and brought to an end;
- enacts Part 2.1 to allow the Public Guardian and Trustee to assume statutory property guardianship of an incapable adult's financial affairs without an order of the court.
SECTION 5: [Adult Guardianship Act, section 44.1] is consequential to the repeal of the Patients Property Act by this Bill.
SECTION 6: [Adult Guardianship Act, section 45] is consequential to the repeal and
replacement of Part 2 of the Act.
SECTION 7: [Adult Guardianship Act, section 46] clarifies that a person must not disclose
the identity of a person who reports the abuse or neglect of an adult, despite
any provision of the Freedom of Information and Protection of Privacy Act or
the Personal Information Protection Act that might otherwise enable or
require that disclosure.
SECTION 8: [Adult Guardianship Act, section 47] is consequential to the repeal and
replacement of Part 2 of the Act.
SECTION 9: [Adult Guardianship Act, section 48] is consequential to the enactment of the
definition of "financial affairs".
SECTION 10: [Adult Guardianship Act, section 51]
- removes the express power of a designated agency to assist adults in obtaining representatives under the Representation Agreement Act;
- lengthens the time for which the court may make an interim order to protect an adult, and provides that an interim order may be made without notice if necessary for the immediate protection of the adult;
- is consequential to the enactment of the definition of "financial affairs".
SECTION 11: [Adult Guardianship Act, section 54]
- is consequential to the repeal and replacement of Part 2 of the Act;
- exempts an application for provision of services to an adult from being accompanied by an assessment report where the court is making an order to protect an adult from apparent abuse or neglect.
SECTION 12: [Adult Guardianship Act, section 56]
- is consequential to the enactment of the definition of "financial affairs";
- lengthens the period for which the court may make or renew an order respecting provision of services to an adult who is apparently abused or neglected.
SECTION 13: [Adult Guardianship Act, section 57] lengthens the period for which the court
may make or renew an order respecting provision of services to an adult who
is apparently abused or neglected.
SECTION 14: [Adult Guardianship Act, section 59] is consequential to the enactment of the
definition of "financial affairs".
SECTION 15: [Adult Guardianship Act, section 60.2] sets out the circumstances when a disposition
of property by an adult who may be incapable is voidable.
SECTION 16: [Adult Guardianship Act, section 61] is consequential to the repeal and
replacement of Part 2 of the Act.
SECTION 17: [Adult Guardianship Act, sections 62, 62.1 to 62.3 and 63]
- ensures that people acting under the Act may obtain and disclose information as necessary to exercise their powers and perform their duties;
- clarifies that the Supreme Court maintains its parens patriae jurisdiction, and provides that the court may give directions or give other orders on application by a guardian;
- permits the court to order that the cost of an application under Part 2 or 2.1 of the Act may be paid from the property of the adult who is the subject of the application;
- adds regulation making powers consequential to the repeal and replacement of Part 2 and the enactment of Part 2.1 of the Act.
SECTION 18: [Adult Guardianship Act, section 65] provides rules for the transition
between the Patients Property Act to Part 2 and 2.1 of the Adult Guardianship Act.
Health Care (Consent) and Care Facility (Admission) Act
SECTION 19: [Health Care (Consent) and Care Facility (Admission) Act, section 1] makes
changes to definitions consequential to amendments to the Act and the repeal
and replacement of Part 2 of the Adult Guardianship Act.
SECTION 20: [Health Care (Consent) and Care Facility (Admission) Act, section 8] is
consequential to the enactment of the definitions of "close friend" and "near
relative".
SECTION 21: [Health Care (Consent) and Care Facility (Admission) Act, section 9]
- provides that an adult may refuse consent to health care by means of an advance directive;
- provides that a decision to give or refuse consent to health care is not affected by any subsequent incapability.
SECTION 22: [Health Care (Consent) and Care Facility (Admission) Act, sections 11, 12,
12.2, 14 and 15] is consequential to the repeal and replacement of Part 2 of the
Adult Guardianship Act.
SECTION 23: [Health Care (Consent) and Care Facility (Admission) Act, section 12] clarifies
that health care must be withdrawn if a guardian, representative or substitute
decision maker refuses consent for continued health care.
SECTION 24: [Health Care (Consent) and Care Facility (Admission) Act, sections 13
and 14] is consequential to the enactment of the definitions of "close friend"
and "near relative".
SECTION 25: [Health Care (Consent) and Care Facility (Admission) Act, section 16] adds
persons who may be chosen as temporary substitute decision makers.
SECTION 26: [Health Care (Consent) and Care Facility (Admission) Act, section 17] is consequential to the repeal and replacement of Part 2 of the Adult Guardianship Act, and updates language respecting disclosure of information to be consistent with that Act.
SECTION 27: [Health Care (Consent) and Care Facility (Admission) Act, section 18]
updates language and is consequential to the amendment to section 19 (2) of the Act.
SECTION 28: [Health Care (Consent) and Care Facility (Admission) Act, section 19]
- is consequential to the enactment of the definitions of "close friend" and "near relative";
- requires a temporary substitute decision maker to act in the adult's best interests if the adult's instructions or wishes are unknown.
SECTION 29: [Health Care (Consent) and Care Facility (Admission) Act, Part 2.1]
- provides for the making of advance directives by which a capable adult may give or refuse consent to health care in the event that the adult becomes incapable of making health care decisions;
- enables health care providers to provide care if consent is given in an advance directive, and requires health care providers not to provide care if consent is refused in an advance directive;
- enables health care providers to seek substitute consent to health care if an advance directive is inapplicable to the health care decision to be made, is unclear, no longer reflects the adult's wishes, or fails to account for significant changes in technology since the advance directive was made.
SECTION 30: [Health Care (Consent) and Care Facility (Admission) Act, section 33.4] allows the court to make various orders in respect of decisions made on behalf of incapable adults, including an order to void an advance directive that was made, changed or revoked as a result of undue influence on the adult.
SECTION 31: [Health Care (Consent) and Care Facility (Admission) Act, section 34] provides
regulation making authority in respect of advance directives, including
advance directives that have been made in other jurisdictions.
SECTION 32: [Health Care (Consent) and Care Facility (Admission) Act, section 35.1]
provides rules for the transition from written instructions respecting health
care, made before the enactment of Part 2.1 of the Act, to advance directives.
SECTION 33: [Health Care (Consent) and Care Facility (Admission) Act, sections 14
and 18] amends not in force provisions enacted by the Supplements Repeal
Act, consequential to the repeal and replacement of Part 2 of the Adult Guardianship
Act.
Power of Attorney Act
SECTION 34: [Power of Attorney Act, heading to Part 1] is consequential to the enactment
of Parts 2 and 3 of the Act by this Bill.
SECTIONS 35 to 37: [Power of Attorney Act, sections 1, 1.1 and 8] are consequential to the enactment of Parts 2 and 3 of the Act.
SECTION 38: [Power of Attorney Act, Parts 2 and 3] enacts Parts 2 and 3 of the Act to permit
a capable adult to make a power of attorney that authorizes another person
to make decisions respecting financial affairs on an incapable adult's behalf, and sets out
- what an adult may do by enduring power of attorney;
- requirements respecting the making of an enduring power of attorney, who may act as an attorney and an attorney's powers and duties;
- provisions respecting the operation of an enduring power of attorney, including when the authority of an attorney is suspended or ends;
- provisions respecting investigations by the Public Guardian and Trustee and orders of the court in relation to enduring powers of attorney;
- rules respecting the transition of enduring powers of attorney made under section 8 before the repeal of that section.
SECTION 39: [Power of Attorney Act, Schedule] is consequential to the enactment of
Parts 2 and 3 of the Act.
Representation Agreement Act
SECTION 40: [Representation Agreement Act, section 1] is consequential to amendments to
sections 7 and 9 of the Act by this Bill.
SECTIONS 41 AND 42: [Representation Agreement Act, sections 2 and 3] are consequential to amendments to section 9 of the Act.
SECTION 43: [Representation Agreement Act, section 3.1] prohibits requirement of a representation
agreement as a condition of receiving a good or service.
SECTION 44: [Representation Agreement Act, section 5] narrows the category of persons
who may act as a representative and removes a requirement for representatives
and alternate representatives to sign certificates in respect of representation
agreements made under section 9 of the Act.
SECTION 45: [Representation Agreement Act, section 7] clarifies that this provision applies
only to representation agreements made under this section, and that decisions
respecting the use of restraints, despite the objections of the adult, cannot be
the subject of representation agreements made under this section.
SECTION 46: [Representation Agreement Act, section 8] is consequential to amendments to
section 9 of the Act.
SECTION 47: [Representation Agreement Act, section 9] re-enacts section 9 to
- clarify that this provision applies only to representation agreements made under this section;
- enable a representation agreement made under this section to provide either general or specific powers;
- remove the power of a representative to act in respect of the financial affairs of an incapable adult;
- delete requirements respecting consultation with a member of the Law Society of British Columbia or other prescribed persons.
SECTION 48: [Representation Agreement Act, section 9.1] clarifies that representatives
must exercise their authority in accordance with the Act and any other enactment
that gives authority to a representative.
SECTION 49: [Representation Agreement Act, section 10] streamlines language.
SECTION 50: [Representation Agreement Act, section 11] is consequential to amendments
to section 9 and prohibits representatives from making decisions in respect of
non-therapeutic sterilization of an adult for whom the representative is acting.
SECTION 51: [Representation Agreement Act, section 12] is consequential to amendments
to section 9 of the Act.
SECTION 52: [Representation Agreement Act, section 13]
- is consequential to amendments to section 9 of the Act;
- removes a requirement for persons signing a representation agreement made under section 9 of the Act on behalf of an adult, and witnesses to those agreements, to sign certificates;
- makes changes to execution requirements to be consistent with execution requirements in respect of advance directives and enduring powers of attorney.
SECTION 53: [Representation Agreement Act, section 16]
- clarifies how a representative is to act in the best interests of an adult;
- is consequential to amendments to section 9 of the Act.
SECTION 54: [Representation Agreement Act, section 18] re-enacts a provision respecting
access to information to be consistent with the Power of Attorney Act.
SECTION 55: [Representation Agreement Act, section 19.01] prohibits representatives from
making or changing a will on behalf of an adult.
SECTION 56: [Representation Agreement Act, section 21] is consequential to amendments
to section 9 of the Act.
SECTION 57: [Representation Agreement Act, section 22] re-enacts a provision respecting
disclosure of information to be consistent with the Power of Attorney Act.
SECTIONS 58 AND 59: [Representation Agreement Act, section 23 and 26] are consequential to amendments to section 9 of the Act.
SECTION 60: [Representation Agreement Act, section 28] is consequential to amendments
to section 9 of the Act and to the repeal and replacement of Part 2 of the Adult
Guardianship Act and the enactment of Part 2.1 of that Act.
SECTION 61: [Representation Agreement Act, section 29] is consequential to amendments
to section 9 of the Act and to the repeal and replacement of Part 2 of the Adult
Guardianship Act and the enactment of Part 2.1 of that Act.
SECTION 62: [Representation Agreement Act, section 30] is consequential to amendments
to section 9 of the Act.
SECTION 63: [Representation Agreement Act, section 41] provides for the recognition of
representation agreements made outside British Columbia.
SECTION 64: [Representation Agreement Act, section 42]
- makes changes consequential to amendments to section 9 of the Act;
- provides regulation making authority in respect of routine management of an adult's financial affairs, and in respect of representation agreements that have been made in other jurisdictions.
SECTION 65: [Representation Agreement Act, sections 44.2 and 44.3] sets out transitional
rules for representation agreements that give representatives the power to provide
financial support for an incapable adult's children, or to do anything that
can be done by an attorney acting under a power of attorney, granted before
that power was repealed.
SECTION 66: [Transitional -- amendments to add dates of repeal] permits the Lieutenant
Governor in Council to amend transitional provisions to add the date on which
a provision or an Act referenced in the transitional provision was repealed or
came into force.
Patients Property Act
SECTION 67: [Patients Property Act] repeals the Patients Property Act, consequential to the
repeal and replacement of Part 2 of the Adult Guardianship Act.
Adult Guardianship Statutes Amendment Act, 1999
SECTION 68: [Adult Guardianship Statutes Amendment Act, 1999, section 25] repeals a
not in force provision, consequential to the enactment of Parts 2 and 3 of the
Power of Attorney Act.
Assessment Act
SECTION 69: [Assessment Act, section 1] is consequential to the repeal of the Patients
Property Act, the repeal and replacement of Part 2 and the enactment of
Part 2.1 of the Adult Guardianship Act, and the enactment of Parts 2 and 3 of
the Power of Attorney Act.
Community Care and Assisted Living Act
SECTION 70: [Community Care and Assisted Living Act, section 18] is consequential to the
repeal of the Patients Property Act, the repeal and replacement of Part 2 and
the enactment of Part 2.1 of the Adult Guardianship Act and the enactment of
Part 2 of the Power of Attorney Act.
Court Rules Act
SECTION 71: [Court Rules Act, section 1] is consequential to the repeal of the Patients
Property Act and the enactment of Parts 2 and 3 of the Power of Attorney Act.
Credit Union Incorporation Act
SECTION 72: [Credit Union Incorporation Act, section 1] is consequential to the repeal of
the Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
Enforcement of Canadian Judgments and Decrees Act
SECTION 73: [Enforcement of Canadian Judgments and Decrees Act, section 1] is consequential
to the repeal and replacement of Part 2 and the enactment of Part 2.1
of the Adult Guardianship Act.
Estate Administration Act
SECTION 74: [Estate Administration Act, section 67.2] provides for beneficiaries in the
event that a testamentary gift is disposed of by a person acting on behalf of an
adult.
SECTION 75: [Estate Administration Act, section 112] is consequential to the repeal of the
Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
Expropriation Act
SECTION 76: [Expropriation Act, section 1] is consequential to the repeal of the Patients
Property Act, the repeal and replacement of Part 2 and the enactment of
Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the Power
of Attorney Act and amendments to the Representation Agreement Act.
Family Relations Act
SECTION 77: [Family Relations Act, section 91] is consequential to the enactment of Part 2
of the Power of Attorney Act and the repeal and replacement of Part 2 and the
enactment of Part 2.1 of the Adult Guardianship Act.
Financial Institutions Act
SECTION 78: [Financial Institutions Act, section 1] is consequential to the repeal of the
Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
SECTION 79: [Financial Institutions Act, section 73] is consequential to the repeal of the Patients Property Act, the repeal and replacement of Part 2 and the enactment of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the Power of Attorney Act and amendments to the Representation Agreement Act.
Health Emergency Act
SECTION 80: [Health Emergency Act, section 11] provides that an emergency medical
assistant must not provide emergency health care if there are reasonable
grounds to believe that the person who is to receive the health care has made
an advance directive refusing the health care.
Health Professions Amendment Act, 2003
SECTION 81: [Health Professions Amendment Act, section 45] is consequential to the
amendment made to the Health Emergency Act by this Bill.
Home Owner Grant Act
SECTION 82: [Home Owner Grant Act, section 8] is consequential to the repeal of the
Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
Insurance (Motor Vehicle) Act
SECTION 83: [Insurance (Motor Vehicle) Act, section 32] is consequential to the repeal of
the Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
Insurance (Vehicle) Act
SECTION 84: [Insurance (Vehicle) Act, section 92] is consequential to the repeal of the
Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
Land Title Act
SECTIONS 85 AND 86: [Land Title Act, sections 1 and 45] are consequential to the enactment of Part 2 of the Power of Attorney Act.
SECTION 87: [Land Title Act, section 46] is consequential to the enactment of Part 2 of the
Power of Attorney Act.
SECTION 88: [Land Title Act, section 47.1] is consequential
to amendments to the Representation Agreement Act and the deeming
of representation agreements that authorize representatives to exercise the
powers of an attorney, made before the repeal of section 9 (1) (g) of the Act, to
be enduring powers of attorney.
SECTION 89: [Land Title Act, section 51] is consequential to the enactment of Part 2 of the
Power of Attorney Act and amendments to the Representation Agreement Act.
SECTION 90: [Land Title Act, section 56] is consequential to the enactment of Part 2 of the
Power of Attorney Act and the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act.
SECTION 91: [Land Title Act, section 282] is consequential to the repeal of the Patients
Property Act, the repeal and replacement of Part 2 and the enactment of
Part 2.1 of the Adult Guardianship Act, the enactment of Part 2 of the Power
of Attorney Act and amendments to the Representation Agreement Act.
Legal Profession Act
SECTION 92: [Legal Profession Act, section 35] is consequential to the repeal and replacement
of Part 2 and the enactment of Part 2.1 of the Adult Guardianship Act
and the enactment of Part 2 of the Power of Attorney Act.
SECTION 93: [Legal Profession Act, section 50] is consequential to the repeal and replacement
of Part 2 and the enactment of Part 2.1 of the Adult Guardianship Act
and the enactment of Part 2 of the Power of Attorney Act.
Limitation Act
SECTION 94: [Limitation Act, section 7] is consequential to the repeal of the Patients Property
Act and the repeal and replacement of Part 2 and the enactment of Part 2.1
of the Adult Guardianship Act.
Mental Health Act
SECTION 95: [Mental Health Act, section 1] is consequential to the repeal of the Patients
Property Act and the repeal and replacement of Part 2 of the Adult Guardianship
Act.
SECTION 96: [Mental Health Act, section 11] is consequential to the repeal of the Patients
Property Act and the repeal and replacement of Part 2 and the enactment of
Part 2.1 of the Adult Guardianship Act.
Mineral Tax Act
SECTION 97: [Mineral Tax Act, section 12] is consequential to the repeal of the Patients
Property Act and the repeal and replacement of Part 2 and the enactment of
Part 2.1 of the Adult Guardianship Act.
Notaries Act
SECTION 98: [Notaries Act, section 18] permits notaries to draw representation agreements,
advance directives, powers of attorney and enduring powers of attorney.
Partition of Property Act
SECTION 99: [Partition of Property Act, section 9] is consequential to the repeal of the
Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act and the enactment of Part 2 of the
Power of Attorney Act.
Partnership Act
SECTION 100: [Partnership Act, section 38] is consequential to the repeal of the Patients
Property Act and the repeal and replacement of Part 2 and the enactment of
Part 2.1 of the Adult Guardianship Act.
Personal Property Security Act
SECTION 101: [Personal Property Security Act, section 1] is consequential to the repeal of
the Patients Property Act and the repeal and replacement of Part 2 and the
enactment of Part 2.1 of the Adult Guardianship Act.
Pharmacists, Pharmacy Operations and Drug Scheduling Act
SECTION 102: [Pharmacists, Pharmacy Operations and Drug Scheduling Act, section 1] is
consequential to the repeal of the Patients Property Act and the repeal and
replacement of Part 2 of the Adult Guardianship Act.
Pharmacy Operations and Drug Scheduling Act
SECTION 103: [Pharmacy Operations and Drug Scheduling Act, section 1] is consequential
to the repeal of the Patients Property Act and the repeal and replacement of
Part 2 of the Adult Guardianship Act.
Property Law Act
SECTION 104: [Property Law Act, section 27.1] is consequential to the enactment of Part 2 of
the Power of Attorney Act and amendments to the Representation Agreement
Act.
Public Guardian and Trustee Act
SECTION 105: [Public Guardian and Trustee Act, section 1] is consequential to the repeal of
the Patients Property Act, the repeal and replacement of Part 2 and the enactment
of Part 2.1 of the Adult Guardianship Act, the enactment of Parts 2 and 3
of the Power of Attorney Act and amendments to the Representation Agreement
Act.
SECTION 106: [Public Guardian and Trustee Act, section 5] removes unnecessary references
to other enactments.
SECTION 107: [Public Guardian and Trustee Act, section 6] is consequential to the enactment
of Part 2 of the Power of Attorney Act and clarifies that the Public
Guardian and Trustee may act as a trustee if appointed under a statute or by
agreement.
SECTION 108: [Public Guardian and Trustee Act, section 17]
- is consequential to the enactment of Part 3 of the Power of Attorney Act and amendments to the Public Guardian and Trustee Act;
- adds protection against disclosure of the identity of persons who report financial abuse to the Public Guardian and Trustee.
SECTION 109: [Public Guardian and Trustee Act, section 18] is consequential to the repeal
and replacement of Part 2 of the Adult Guardianship Act, the enactment of
Part 3 of the Power of Attorney Act and amendments to the Representation Agreement Act.
SECTION 110: [Public Guardian and Trustee Act, section 19] provides that the Public
Guardian and Trustee may take steps to protect a young person or an adult who
needs immediate protection for health and safety reasons, and lengthens the
period for which the Public Guardian and Trustee may act under this section.
SECTION 111: [Repeals in this Act] permits the repeal of sections that may be inoperative.
|