2007 Legislative Session: Third Session, 38th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, OCTOBER 18, 2007

Morning Sitting

Volume 22, Number 9

CONTENTS

Routine Proceedings

Page

Introductions by Members

Committee of the Whole House

Adult Guardianship and Planning

Statutes Amendment Act, 2007 (Bill 29)

L. Krog

Hon. W. Oppal

C. Trevena

[ Page 8617 ]

THURSDAY, OCTOBER 18, 2007

The House met at 10:02 a.m.

[Mr. Speaker in the chair.]

Prayers.

Introductions by Members

Hon. J. van Dongen: I'm very pleased to introduce to the

Legislature today, visiting us from Scotland, the Hon. Jim Mather, Minister for

Enterprise, Energy and Tourism. With him are Martin Cronin, the consul general

for the United Kingdom in Vancouver; Shauna Cranney, the secretary to the

minister; Lorna Jack of Scottish Development International; and Stuart McLean,

from the British embassy in Washington.

We had a great meeting this morning. They also met with the

Minister of Energy, Mines and Petroleum Resources and had a number of other

meetings. I ask the House to please make them very welcome to British Columbia.

Orders of the Day

Hon. C. Richmond: I call committee on Bill 29, Adult

Guardianship and Planning Statutes Amendment Act, 2007.

Committee of the Whole House

ADULT GUARDIANSHIP AND PLANNING

STATUTES AMENDMENT ACT, 2007

The House in Committee of the Whole (Section

B) on Bill 29; H.

Bloy in the chair.

[1005]

The committee met at 10:06 a.m.

section 1.

L. Krog: Dealing with

section 1. I appreciate that because

of the way the bill is drafted, this is somewhat complex.

Firstly, I want to thank the minister's staff for briefing me this

morning on a couple of proposed amendments. I appreciate the heads-up, and I'm

wondering if the minister would like to introduce them.

The Chair: Would the Attorney General like to introduce

them now or when we get to them?

Hon. W. Oppal: Hon. Chair, I think it would be more

appropriate when we get to that stage — it's

section 45. We'll wait until we get

there.

L. Krog:

Section 1 of the Adult Guardianship Act as amended

— and I'm referring to page 1 of the bill — talks about repealing the definition

of "abuse" and substituting the following: "(

b) damage or loss in respect of the

adult's financial affairs." Damage or loss provides, it seems to me, quite a

range of possibilities.

Damage arguably is a dollar, although de minimis non curat lex

might apply. Or it could be $100,000. I'm just wondering if there are any court

decisions the Attorney General is aware of that provide some guidance with

respect to how our courts may interpret these particular words, unless the

definition is further defined.

Hon. W. Oppal: There is no judicial authority on that

issue. These are words in the old act, and they've been updated. That's

basically what it is here.

L. Krog: Well, perhaps the Attorney could outline, in the

sense…. Updated in what respect?

Hon. W. Oppal: They've been changed, in respect to adults'

financial affairs, to "adult's financial affairs."

L. Krog: Over on page 2 in the definition section, it talks

about "damage to or loss of assets" and "damage or loss in respect of the

adult's financial affairs." Again, I'm wondering if there are any judicial

interpretations in other jurisdictions that have provided some guidance with

respect to this particular wording and, if not, what the Attorney General

considers that phrase to mean.

[1010]

Again, it seems to me we could be dealing with incredible

trivialities or something quite significant. So when we talk about "damage or

loss in respect of the adult's financial affairs," perhaps the Attorney General

could provide some guidance as to what that actually is going to mean or whether

it's been interpreted.

Hon. W. Oppal: There's no judicial authority that would

assist us here. This change is there in order to put a more liberal

interpretation on the words "financial affairs." That's simply the purpose of

this wording.

L. Krog: I think the Attorney General is being quite witty

this morning when he referred to a liberal

interpretation, and I give him full

credit for his wit so early in the morning.

Perhaps the real import of my question is…. When the Attorney

General talks about liberal and damage or loss, again, what I'm driving at is….

The way I read this, in my own simple way, is that we could be talking about a

very small amount of money, if you will, or we could be talking about a large

amount. I'm just wondering: is there any intention, through regulation or some

other means, to try to define what that might mean so that courts could be given

guidance — as opposed to a bunch of poor plaintiffs around the province having

to appear in front of judges and trying to determine what this

section is going

to mean?

Hon. W. Oppal: There is no intention here to restrict

anyone's remedies as far as any subsequent legal action is concerned. As the

words state: "'financial affairs'

[ Page 8618 ]

includes an adult's business and property, and the conduct of the adult's

legal affairs." It may well be that there'll be other facts and circumstances

which would fall within the ambit of the words "financial affairs."

It's meant to offer a wide scope. Financial affairs may well

involve things other than business or property, which are the words that are

there right now.

L. Krog: The definition of neglect that we've just been

dealing with strikes out "damage to or loss of assets," and substitutes "damage

or loss in respect of the adult's financial affairs." We then go on to talk

about self-neglect. It will be 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'm wondering what the reasoning is for the difference, if you

will. In one we talk about damage or loss, and in the other

section we talk

about mental harm or substantial damage or loss. So it seems to me that what is

being proposed is that the courts are going to say that if someone takes the

dollar from you, it falls within the statute. But if you're doing it to

yourself…. If you're wandering down the street handing out hundred-dollar bills,

that may be substantial, but if you're handing out a loonie to every beggar on

the street because you're a soft-hearted person in the early stages of dementia,

that in fact, won't constitute self-neglect.

[1015]

Hon. W. Oppal: Nothing has changed as far as the law is

concerned. The words are meant to convey a more liberal, as I said earlier,

approach to the term "financial affairs." It includes not only the business and

property of an adult and the conduct of legal affairs, but it's meant to convey

a wider approach. It may take into other things, but it doesn't change the

import of the law. I should say the

definitions are carried over from the old

section — the old act.

L. Krog: I appreciate that, and the

definitions are carried

over. But again, I'm simply asking: why do we talk about damage? When it's

neglect, we talk about damage or loss in respect to the adult's financial

affairs, and when it comes to self-neglect, there is a different test, if you

will. It talks about "substantial damage or loss."

Hon. W. Oppal: This is a carryover from the old act that

was enacted in 1993. I'm really at a loss to enlighten the member as to why that

was done in 1993. It's simply a carryover from that. The words themselves have

been changed, but the meaning is still the same. That's all I can say.

L. Krog: I appreciate, how shall I say, his comments, but

I'm almost hurt. I was looking for some advice from him in this matter, and some

fairly liberal advice — if I may use his language from earlier this morning.

It seems to me that this is a distinction of some importance

because what we're really saying is — and if the Attorney General would agree,

I'm satisfied to move on — if it's self-neglect, it has to be substantial. But

if it's abuse, if you will, by someone else, arguably, then it doesn't have to

be substantial. I mean, the bill is before the House, and I'm just wondering:

what's the intent behind that? What's the rationale for the different standard?

Hon. W. Oppal: The effect of the amendment is simply to

change the definition, but I'm unable to enlighten the member as to why this was

done in 1993, and the wording is carried over. I can't tell the member why the

issues relating to neglect and self-neglect are different.

[1020]

L. Krog: With respect to the definition of advance

directive, it talks about having the same meaning as the Health Care (Consent)

and Care Facility (Admission) Act. I'm just wondering: why just take the same

definition and use it? If this is a reform, why aren't we perhaps expanding the

definition of advance directive?

The reason I raise that is this. There are many people who will

not come into contact with persons who are in a position to draft such a

document for them or provide a precedent for them, but may in fact have some

very sincere beliefs around what they wish to see done in the end of days, if

you will.

I'm just wondering if there is any intention to recognize, either

through regulation or otherwise, perhaps a home-drawn document — not that I wish

to encourage people to become their own lawyers or health care advisers.

I'm competent, but I've been diagnosed with cancer, so I draft

something at home. It's fairly clear, obviously, but it may not constitute an

advance directive within the meaning of the act. I'm just wondering if there's

any way that will be recognized through regulation or otherwise.

Hon. W. Oppal: This really is done so as to achieve some

type of consistency between this act and the Health Care (Consent) and Care

Facility (Admission) Act. It's there for consistency purposes. That's the

reason.

L. Krog: Again, on page 2 in subsection (

k) the "code of

practice" referred to 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."

Is there any draft or any proposal as to what that code of

practice will look like? If the Attorney General could enlighten the House this

morning along those lines.

Hon. W. Oppal: The code will have to be approved by the

minister. The code would not be mandatory, although the failure to comply with

it could be considered in a judicial review.

L. Krog: I'm wondering if the Attorney General could advise

what the code would look like and what things are considered in terms of that

code. We're going

[ Page 8619 ]

to approve a bill this morning that allows a code of practice to be

established, obviously. I simply want to know what is contemplated in terms of

that code, in terms of its actual substance.

Hon. W. Oppal: It will be based on best practices as

established by the Public Guardian and Trustee, and we will consult with

stakeholders.

L. Krog: I'm sorry. I didn't catch the last remark.

Consulting with the Public Guardian and Trustee and…?

Hon. W. Oppal: And with stakeholders.

L. Krog: The definition under (

k) also includes "health

care provider," which means "a person who is licensed, certified or registered

under a prescribed Act to provide health care."

I'm just wondering what constitutes a prescribed act as opposed to

a "qualified health care provider," which is further defined.

[1025]

Hon. W. Oppal: It could be any act. It could be the act

governing nurses. It could be the act governing medical practitioners. It could

be

an act governing other health care providers. It could be any number of acts

that govern people who are providing health care.

L. Krog: So I take it that it will be whatever the

executive council, in its wisdom, decides by way of regulation pursuant to this

statute. Am I correct in that?

Hon. W. Oppal: Yes.

L. Krog: With respect to the definition of a qualified

health care provider, it means "a medical practitioner or a member of a

prescribed class of health care providers." I'm just wondering what the

difference is between a health care provider, who is a person "licensed,

certified or registered under a prescribed Act," and a qualified health care

provider, meaning "a medical practitioner" — which is obviously a doctor — "or a

member of a prescribed class of health care providers." Why the necessity for

the different

definitions?

Hon. W. Oppal: The qualified health care provider, by

definition, means that the legislation would be wider than "a medical

practitioner" — could be someone other than a medical practitioner.

L. Krog: I'm just wondering if the Attorney General could

provide examples. Are we talking about naturopaths, chiropractors? What are we

actually talking about?

Hon. W. Oppal: This will be decided in consultation with

medical practitioners as to who fits within the definition of qualified health

care provider.

L. Krog: The answer of the Attorney General does give me

great pause for concern. Presently under the Patients Property Act, in order to

have a committee appointed, one requires the opinions of two qualified medical

practitioners — two doctors, two physicians, members of the College of

Physicians and Surgeons.

If I'm understanding what the Attorney General has just told me —

that the assessments that are contemplated further on in the statute that are

required in order to have an order appointing a guardian made by a court — those

assessments could in fact then be made by persons other than doctors.

If that is the case, I do have some concerns, and I'd appreciate

the Attorney General's comments on that.

Hon. W. Oppal: The present situation is that this decision

can only be made by a doctor. But this

section contemplates a wider scope so as

to expand the definition and expand the persons who make that designation in the

future. It allows for that to be done in the future — only if warranted.

[1030]

L. Krog: I appreciate that your government, through this

bill, may be contemplating a wider circle of people. But if passed, what this

means is that in theory, any person who meets the definition of a qualified

health care provider, which can be a prescribed class of health care providers —

in theory, a chiropractor or a naturopath or an RN….

That's the way I read it, I need some reassurance from the

Attorney General that, in fact, we're not going to have people whose ability to

manage their own affairs is going to be taken away by someone who, with great

respect, may certainly have a significant amount of training in their particular

field but may not, in fact, be qualified to make decisions about a person's

ability to manage their own affairs.

Hon. W. Oppal: The present situation is that only a medical

practitioner can give that type of expert opinion or lend that type of

expertise. What this definition

section does is contemplate something in the

future wherein by regulation, on the advice of medical practitioners, the

definition may be expanded to include other health care professionals who are

qualified to make that kind of assessment. That may not include a naturopath or

anything of the sort that the member suggested.

L. Krog: That's my concern to the Attorney General. As

someone who appreciates that perhaps we have overused physicians in

circumstances where it's not necessary to do so, and arguably driven up the

attendant cost to the health care system, I do have concerns that when a

person's liberty, if you will, is being taken away from them, that it's going to

potentially be taken away on the recommendations or the assessments of parties

other than qualified physicians.

It's one thing to have a psychiatrist tell you you've got

Alzheimer's and you're no longer qualified to manage your affairs. But what the

government is asking the Legislature to do through this bill — the way it's

worded, and based on what the Attorney General has

[ Page 8620 ]

told me this morning — is essentially give cabinet, through regulation, the

ability to decide who is a qualified health care provider, because it's a

prescribed class of health care providers.

I'm not suggesting the government would do anything stupid, but in

terms of the ability of the public through this House to comment on who those

persons are going to be when you are dealing with a statute that has such

significant repercussions for an individual, their property, the ability to

manage their affairs, it just seems to me that it would be more appropriate for

the government to provide at least a list of who they anticipated those persons

would be.

I can understand that if you're living in a remote community in

this province and were only going to have one physician readily available to

provide an assessment and maybe you've got a registered nurse with significant

experience dealing with geriatric patients, then that's perhaps something the

public would find acceptable.

But the way the act is worded now, in theory, this qualified

health care provider…. Both assessments could come from nurses or — and I

appreciate the Attorney General doesn't contemplate doing this — naturopaths.

It's literally anybody who meets the standard that is going to be set by cabinet

without any ability for that to come back before this House before it's

approved.

[1035]

This is a concern I've been raising for the last two and a half

years in this House. We pass statutes, and it's basically saying: "Trust me."

Cabinet's going to make a decision by way of regulation. It's

never going to get back here for open, public debate: "We promise we'll consult

with stakeholders. We'll do the right thing. Trust us."

With the greatest respect to the Attorney General and to the

executive council, if the shoe were on the other foot, and I was sitting over in

the Attorney General's shoes today, I think the opposition would be screaming

bloody murder, saying: "How dare you say 'just trust us?'"

We're perfectly capable of making the right decision. You're going

to give us a blank cheque here this morning, thank you very much, and away we

go.

My point to the Attorney General around this particular

section

is: if we are going to allow individuals other than doctors to provide the

assessments that will essentially see a person lose their ability to make

decisions about their own health care, lose the ability to make decisions about

where they're going to live and — having looked through the rest of the statute

— indeed, allow a guardian, once appointed, to physically move and restrain

them, even…. I mean, enormous powers over the person, far more defined than has

existed in the past.

It just seems to me that it might be appropriate to limit the

class of people who get to make those kinds of assessments on which the courts

are obviously going to — and have historically — place enormous reliance when

making these decisions. Indeed, the court has to find that the opinions of two

doctors are valid and appropriate.

It just seems to me that when you're allowing that to happen, it

would be a great deal more comforting to the average member of the public to

think that someone other than the naturopath and the registered nurse at the

local health care clinic in my remote community is going to be able to say: "You

know what? George" — or Sam or Sally or whatever — "is going to lose the ability

to manage his affairs and his health and his person for potentially the rest of

his days based on those two assessments."

I'd like to hear the Attorney General explain to me this morning

why the opposition should support allowing the assessments of only two qualified

health care providers, who may or may not be physicians, to make that kind of

assessment.

Hon. W. Oppal: I fully understand the concern of the member

opposite to ensure that decisions of this import are not made capriciously and

by people who lack qualifications.

However, this definition

section is put there in order to give

some flexibility and some ambit to the

section in the future. Any further

definition of "a member of a prescribed class of health care providers" would

have to meet a strict test. That would have to be done in consultation with the

public trustee, with health care professionals and with stakeholders. These

decisions will not be made capriciously.

You have to understand. We fully understand the significance of

this act. We fully understand the concerns that were raised by the stakeholders,

and as the member well knows, there was a fair amount of consultation with them.

We're well aware of their concerns, and we're well aware to guard against

decisions that are made without any kind of evidentiary basis, without any kind

of sound medical basis. We're well aware of that.

Based on that, I can assure the member that when a further

definition will be made as to who fits into the prescribed class of health care

providers, that decision will not be made lightly. It will be made after

extensive consultation with health care professionals, the public trustee and

people of that ilk.

[1040]

Sections 1 and 2 approved.

section 3.

L. Krog: The

section as proposed would read that: "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."

I'm just wondering what the purpose of this presumption is. That's what I'd like

the Attorney General to explain.

Hon. W. Oppal: There is no substantive change made here as

to the presumption of capacity since the act was passed in 1993. So the 1993 act

that sets out the presumption…. That definition remains in effect today.

Section 3 approved.

section 4.

[ Page 8621 ]

L. Krog:

Section 4 is considerable, so I'm going to make

very specific reference to the individual sections so we can make sure we're all

on the same page.

On page 3 in the proposed

section 4(1) it talks about: "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."

That's a fairly broad opening — "has reason to believe" — and I

would be concerned about the possibility of individuals wishing to take steps to

obtain an appointment as personal guardian under the act or as property guardian

for perhaps some improper motives.

It seems to me that if the

section said, "If a person had

reasonable and probable grounds or had some evidence…." But this just talks

about saying the person has reason. I mean, if you catch a person who may be in

the early stages of dementia but is quite capable in a very bad day, you

arguably could have reason or have some evidence, but it's not really sufficient

grounds to warrant the application.

I'm just wondering if perhaps it would be better to consider a

somewhat more substantive test at that stage — in other words, some direction to

the individual who may have legitimate concerns, let alone the individual who

may, in fact, have some illegitimate motivation for pursuing this.

Hon. W. Oppal: I understand the concern expressed by the

member opposite, but I'm sure that as a member of the bar, he's well aware of

the current practice under the Patients Property Act. This really is based on

the current practice as well as the provisions of

part 2 of the 1993 act, which

was unproclaimed.

This allows a court to order an adult to undergo an incapability

assessment, but it should be remembered that the rights of an adult are

safeguarded by the requirement for a court order. Procedural fairness will

obviously be a part of any order that's made by a court, because it would

presumably be based on a proper evidentiary basis.

I would expect that this

section would be rarely used. This is an

assessment-only section, and it doesn't make a person subject to guardianship.

The Chair: Member, will we go through

section by

section of

this part? It goes on for a number of pages.

L. Krog: Yes, it does.

The Chair: So we'll agree to numbers 4 and 5, as we move

through?

L. Krog: We can use that language in reference to it, if it

makes it easier for Hansard and everyone else. Certainly, hon. Chair.

Again on

section 4, on page 3 and over into page 4, I appreciate

that it has to do with just getting an assessment done, but I'm just wondering

about the issue of cost. The fact is that unless you have a system of full

indemnification from someone who may be improperly motivated, the fact is that

there won't be any sanction, if you will, against them.

I could be wrong, but I don't think there's anything in the act

or, indeed, there is any regulation contemplated with respect to the act that

might allow a person whose motives were illegitimate, if you will, to be

punished if they brought on such an application for an assessment when, in fact,

there wasn't good reason to do so.

[1045]

Hon. W. Oppal: The point raised is a good one. That is,

what do you do if an assessment application is brought on without any basis?

While there is no provision in the act for costs, the fact is the Supreme Court

has an inherent power, an inherent jurisdiction, to make an order for costs

where an assessment application is ill-considered or has no basis.

L. Krog: I appreciate that that's the case, but I'm just

wondering if any consideration was given to putting in a specific provision in

relationship to the court's powers with respect to costs that was quite

instructive. Courts obviously enjoy general jurisdiction, but judges prefer, in

my experience, to have direction from the Legislature, if possible, rather than

create law, if you will, by way of

interpretation.

Hon. W. Oppal: The member opposite may take comfort in

section 62.3, which states: "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."

L. Krog: I'm sorry, hon. Chair, I didn't have a chance,

because of the numbering, to flip to the correct section. That talks about

coming out of the adult's property. My concern is the person who doesn't have

good reason to do it, who gets to run up an expense for the proposed patient —

if you will, to use the present language — when in fact it's not really

legitimate to do so. The patient is stuck with the costs of having to defend

themselves.

Hon. W. Oppal: I resort to what I said earlier about the

court's inherent jurisdiction to make an order for costs where an application

for assessment is ill-considered or there is no basis for it. I would also point

out to the member that the court itself has a rule-making authority, and the

Supreme Court amends its rules on a regular basis so as to make rules regarding

the assessment of costs. So the court could do that on its own.

L. Krog: Moving on to what is

section 5 of the proposed

bill….

The Chair:

Part

Section 4,

part 5.

L. Krog:

Section 4,

part 5. If that language works for

everybody, I think we'll try and carry on with that.

[ Page 8622 ]

Section 4,

part 5 is the new

section allowing for the appointment

of a personal guardian, property guardian or both. Again, this talks about the

prescribed form by a qualified health care provider who assessed the adult using

prescribed assessment procedures and describing the extent to which the adult is

incapable of making decisions, etc.; a plan for the adult's guardianship

prepared in the prescribed form; a copy of any representation agreement, etc.

Very specifically, it talks about the extent to which the adult is

incapable, and we're obviously talking about degrees. Under the existing

statute, as practised in B.C. — in the Patients Property Act, in any event —

you're incapable, or you're capable. It's black or white, left or right, Liberal

or New Democrat. But you can't be both. There's no gradation in between.

[1050]

What I'm getting at is, is there some contemplation of some scale

here? What's the point of having it unless you are going to allow for different

types of care and control? Is it proposed that the court may, in fact, give a

proposed guardian some limited direction with respect to management of someone's

affairs and say: "All right. George is sort of capable, so we can't sell his

house, but he can manage his bank account"?

Hon. W. Oppal: This

section really would allow for a

limited-scope guardianship. The term that's been used here, which I adopt, is

"needs-based" — depending on the particular circumstances of each person. The

point raised is a good one. Black or white? It may not be black or white. It may

be grey. So it's needs-based. It's the best way to describe it.

L. Krog: With respect to

section 4,

part 5, it talks about

prescribed assessment procedures, prescribed forms — all of those things. Again,

I raise the same point I did earlier. I appreciate that sometimes it's difficult

to have everything ready to flow when a statute is passed, but given that this

matter has been the subject of…. Well, I can safely say it was years in the

making when introduced in '93, and now we are in 2007.

There has been a lot of consultation and a lot of discussion, and

I'm just wondering: do we have any idea what the prescribed assessment

procedures or forms will look like?

Quite candidly, as the critic for this area, it would be

appreciated to know exactly what the government is contemplating, because I'm

sure the government is contemplating something. I think it would provide great

comfort to the public to know what the government is contemplating in terms of

the forms and the assessment and what it's going to look like. Is there any

reason why the Attorney General couldn't enlighten me this morning a little more

as to what we're talking about in terms of a prescribed assessment procedure?

Again, we're talking about qualified health care providers. If

it's a physician now, I know the doctors….

I think it's a standard 30-page questionnaire. I've attended with

my late father-in-law and watched him go through it. You're given a name and a

colour — something at the start of it. You go through it, and at the end of it

they rate your score and say whether you're getting worse or better.

I'm just wondering. Is that procedure already contemplated? Has

there been discussion with the appropriate stakeholders in the medical community

with respect to what that assessment procedure will look like?

Hon. W. Oppal: I think I can answer that quickly by saying

that there will be consultation with the medical community, with relevant

stakeholders, with the public trustee.

L. Krog: I do note that the requirement under

section 4,

part 5, with respect to what must accompany the application, talks about a plan

for the adult's guardianship, a copy of any representation, power of attorney,

etc. In addition, the application "includes an application for a personal

guardian, a copy of any advance directive…."

I'm just wondering: why not, if included, the person's will, if

any? That often reflects who they place trust in. It often raises issues around,

perhaps, the disposition of specific items or bequests or articles in a will,

which may or may not be available if a property guardian is appointed and in

fact disposes of or somehow deals with the assets in a different way.

I'm just wondering: why wasn't the will included? It is such an

important document. It's a document generally, but not always, prepared with the

assistance or advice of a lawyer or a notary and represents some clear

contemplation of a person about who they think is an appropriate and trusted

individual in their lives, who will, in fact, be the executor or manager of

their affairs upon their death.

[1055]

Hon. W. Oppal: This does not preclude the examination of

the will. But clearly, this legislation deals with decisions that are made

during a person's lifetime — the current decisions that are relevant to that

person's financial and other well-being.

L. Krog: I appreciate that it doesn't preclude that, but it

is also, I think, a matter of some importance, particularly when it comes to

personal effects. I mean, having been involved in a number of these situations

where, quite innocently perhaps, committees, whether it's the Public Guardian

and Trustee or an individual, have in fact disposed of items that may have

limited monetary but significant personal or family value….

It just strikes me that a will is one of those documents that if

it's not required to be placed before the court, then the court is not going to

be able to make direction with respect to the property guardianship's terms,

because we are contemplating, as the Attorney General said in his own remarks

earlier, a needs-based assessment, in a sense, or a needs-based appointment.

It just strikes me that that is certainly something the government

may wish to consider when it comes to this matter coming before the executive

council, as to

[ Page 8623 ]

including a review of a person's will — if known, if any — because it is an

important document. I appreciate that it does represent a disposition on death,

but it will relate to assets that exist in this person's life and may, in fact,

have some incredible significance.

Hon. W. Oppal: I think the best way to describe it is that

these are minimal requirements and these are factors that a court would consider

in making its determination. I think that's perhaps the best way that I can put

it. The court may have recourse to the documents that are set out in the

legislation in order to make its determination.

L. Krog: Again, on

section 4,

part 5. It talks about the

persons who must be served with the material and includes the spouse in

part

5(3)(b): "the adult's spouse, unless the adult's marriage or marriage-like

relationship has ended, and adult children, if any."

It then goes on in (5) to say: "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."

[1100]

Given that we are talking about a situation where one individual,

by the time this gets before a court and if the application is successful, is

clearly incapable and may have been incapable for a long period of time.

The applicant who's applying to take over someone's affairs and

manage them and is perhaps a child who's adverse in interest to dad's common-law

wife — who had no intention of ceasing cohabitation but was perhaps driven out

of the home by violence and is no longer cohabiting, wants to remain together.

But arguably, the applicant to be appointed guardian takes the position that in

fact, dad intended to no longer cohabit. "Therefore, I don't have to serve her,

in the circumstances."

I'm just wondering: is the Attorney General satisfied that that

section is clear enough that it would require a mutual, if you will, decision of

both parties — a mutual intention, as opposed to a singular intention of a

person who may in fact be incapable?

Hon. W. Oppal: I think the best way I can reply to that

concern is that sub (3)(

b) talks about "any other person that the court may

direct." I think it would be like any other application now that's presently

before the courts. When the court makes the inquiry with respect to all relevant

persons being served, it will be incumbent upon the person who is making the

application to prove to the court that all those persons who have a relevant

stake or relevant part to play in whatever application may be before the courts

has the onus of proving that those people have been served or have been

notified.

L. Krog: I appreciate what the Attorney General is saying,

but the point I'm trying to make is this. You may well have a party who is a

long-term spouse who, as I've said, is driven from the home as a result of the

increasing dementia or violence of a person who is going to be declared

incapable, so to speak, and who is in fact incapable.

You may have the natural child, as I've said, anxious to get rid

of stepmother off the scene. Let's face it. That's the person who's presumably

going to go to some — we'll call them innocent — lawyer, and this innocent

lawyer has no knowledge of the family except what his or her client tells them.

They'll say, "You know what? Well, I've got two siblings," or:

"I'm the only child, and there's no one else to be served." "Is your father in a

common-law relationship or a marriage-like relationship within the meaning of

section 5, or does he have a spouse within the meaning of

section 5(3)?" They'll

honestly say, "No, he isn't," because that person takes the position.

I think the Attorney General understands my point. This may be

something where the court will act based on the information available to it, but

some person with what I will call illegitimate motives will be in a position to

slide this application through, to ignore a common-law spouse who may have

disappeared into a facility for battered women or whatever — just ignore them —

when they may be a person whom the court would expect to hear from and want to

hear from in all of the circumstances.

Hon. W. Oppal: I think the scenario that's been advanced by

the speaker is an interesting one, but that doesn't differ from any situation

that may now exist. What the member is really saying is: what do you do if

someone perpetrates a fraud on the court? That's really what you're saying. What

happens if someone commits a fraud by a material non-disclosure of something

that ought to be disclosed to the court that isn't disclosed?

I'm not so sure that any kind of legislation can contemplate or

can be put in place that would guard against unscrupulous acts of that sort that

have been suggested by the member.

[1105]

L. Krog: With respect to

section 4 — we'll call it

part 6 —

on page 5, the mediation provision is a very interesting one. It provides that

if 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" — and

it's mandatory — "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…; (

c) any prescribed matter."

Again, that's a pretty big door, in my view, as to what's a

prescribed matter. What is the act contemplating? And what sort of mediation are

we talking about? Are we talking about a class of mediators who are recognized

by the Law Society? For instance, are we talking about the mediators who do

mediation for small claims trials now?

[ Page 8624 ]

What exactly is contemplated by this? In other words, how is this

going to look on the ground, and how is it going to work?

Hon. W. Oppal: The finite details as to who may qualify as

a mediator and who would not qualify is something that still needs to be worked

out.

The intent of the

section is clear, and that is that applications

must be referred to mediation if certain matters are in issue. That's really to

prevent needless litigation from taking place, so that needless expenses aren't

incurred by the parties.

The mediation procedures will be prescribed in the regulations. An

appropriate model may be the family justice model, which contemplates a

mediation. The necessity for mediation should be rarely used, I would think,

because most guardianship applications are, as a rule, uncontested. At least,

that's been my experience in the courts thus far.

The most common issue in these applications is who the guardian

ought to be. That's been my experience, and I'm sure it's been the member's

experience. Those are the issues that develop in applications of this sort.

L. Krog: In the same

part it reads: "If a guardianship

application is made…and there is a dispute…a hearing…must not proceed…." I'm

just wondering: who determines that there must be mediation? Will it be done by

way of a notice to mediate that is a requirement, or does the court get partway

through the hearing and make the decision?

In other words, when you have a mandatory

section that says it

must not proceed, I want to know: what's the mechanism that stops it from

proceeding, then? Is it the judge hearing the application, or is it a notice to

mediate?

Hon. W. Oppal: Well, there are two ways of doing it. One is

to put it in the rules by way of a notice to mediate. The second way of doing it

is to have a judge order the same. I would think that the first alternative

would be preferable to the second, and I say that as a cost-saving device.

L. Krog: I take it from the Attorney General's remarks that

what's really contemplated here is that there won't be a restriction on it.

Essentially, there are only going to be the two methods of doing it. The

regulations themselves will be the guiding force in this.

[1110]

In other words, we're not restricting a judge's ability to deal

with an application, as a judge is entitled to do, having grand jurisdiction in

all of this. But the regulation will allow for a prescribed mediation — I just

want to understand this clearly — which would circumvent a judge.

In other words, if there's clearly a dispute before the

application is heard and there's been a responding affidavit by one party who

says, "You know what? I don't think my uncle is incapable," or whatever, then in

theory, is it contemplated that the regulations will provide that if I serve a

notice to mediate, that prevents it from getting to court? In other words, we

can circumvent getting it in front of a judge and a judge having to consider it.

Hon. W. Oppal: The finite details have not been worked out,

but I would suspect…. Well, it has to be mandatory mediation. Otherwise, we're

running counter to the whole philosophical direction of where we're going as far

as reform in the justice system is concerned.

We are, as the member well knows, moving towards a more

solution-oriented, result-oriented system, wherein more mediation and more ADR

are contemplated. I think that the message is clear from that, and that's the

direction we're now taking.

L. Krog: In

section 4,

part 7, the persons who may attend a

hearing of a guardianship application, it talks about "may attend" as opposed to

"have to be" or "need to be given notice." It talks about "(

d) any other person

who files an appearance and whom the court agrees to hear."

I'm just trying to imagine who we are contemplating here — persons

who may have some special relationship with the patient, so to speak, or family

or interveners? Or is it just put in there to give us the widest possible

jurisdiction?

Hon. W. Oppal: Obviously, this

section is put there in the

interests of justice so as to give the court or any other person hearing it the

widest possible flexibility. There may be some person who may be affected by an

order, and the interests of justice dictate that that person be heard and that

person be there for the hearing of the application.

I think this is a good section. It guards against any kind of

injustice wherein some person who may have a relevant stake and a relevant role

to play in the proceedings may be excluded. This would guard against that type

of misconduct and unfairness.

L. Krog: On

section 4,

part 8. This allows for the

appointment of 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…, (

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."

I have been involved in a number of estate matters where there

have been two executors or even more, and you get into estate matters that can

become quite litigious when the parties can't agree. I'm just wondering. In the

drafting of this, were other jurisdictions looked at, and is it the norm now

that similar statutes allow for one or more, as opposed to simply one? If so,

what's the rationale and what's the experience?

[1115]

Hon. W. Oppal: This really is based primarily on the

unproclaimed

part 2 of the 1993 act. Again, it provides

[ Page 8625 ]

flexibility for the decision-maker where one or more guardians are

appropriate in the circumstances. It may be one of those cases where it's

appropriate to have two. It gives the necessary flexibility to the court to make

such an order where justice dictates that there be more than one.

L. Krog: In light of the provisions around the

Representation Agreement Act, etc., I take it that we are talking about almost

encouragement, if you will, of appointments of one person to act as property

guardian and another person to act as personal guardian. Depending on the

circumstances of the individual involved, if they're confined to a home in

severe dementia, the management of property is a fairly simple affair, arguably,

whereas the personal guardian may in fact have to spend a great deal of time

making decisions around health care, medications, visiting, etc.

I just want to understand. Is that the hope and intent of this

section as well — to encourage the appointment of two individuals, as opposed to

combining them in one? A person who may make good financial decisions may not in

fact be the most sympathetic person to make the right health care decisions.

Hon. W. Oppal: I'm not so sure that I can precisely answer

all of the concerns raised by the member, but I can say this. This

section is

there to provide flexibility. It may be that it would be appropriate to have one

person care for property needs, another one for financial needs.

It gives the decision-maker more flexibility so that the affairs

can be managed in an effective manner. It may be that some person has the

expertise to manage someone's real property in a particular way and another

person may not have any knowledge of that. This

section gives that type of

flexibility in making the appropriate orders.

L. Krog: On

section 4,

part 9. That is the

section that

says: "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

authority."

It then talks about it in part (2). "If all or part of the same

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…," etc.

It strikes me that if the court has granted the authority,

potentially, to three persons or even four persons or five…. It's not likely to

happen, but there is that potential under the legislation. And if the Attorney

General agrees with my

interpretation that it is possible to have two or more so

that you perhaps have three, I'm just wondering: instead of a resort to the

court and unanimity, does this

section in fact preclude — and I believe it does

— the simple possibility of a 2-to-1 vote?

Hon. W. Oppal: What's contemplated is that the act…. They

make their decision unanimously. If they're not able to do that, then the court

can order otherwise in order to meet the exigencies of the circumstances.

L. Krog: On the same section. I'm just looking at sub

(3) of 9. It says:

"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,

(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."

[1120]

It just strikes me that the presumption is, arguably, going the

wrong way. If I read this

section correctly, I've got two guardians and they're

both capable individuals. They've been appointed to be both personal guardians

and property guardians, and they're both, within the common sense of the term,

capable, trustworthy, honest and able to do it.

We'll call them Bob and Sally. Bob becomes ill and can't do it.

Sally cannot continue to act, the way I read this section. Depending on the

jurisdiction you're in, that may mean a substantial period of time before a

court can make a different order.

I'm bringing to this an entirely rural perspective. You know, we

don't necessarily have a judge in Nanaimo available every day and, certainly, in

Campbell River or Pouce Coupe — I note I got the interest of one of the members

of the House with that remark — or some other somewhat small and obscure

community in the province.

It just strikes me that it should be the reverse. The presumption

should be that the capable guardian can continue to act rather than everything

coming to a full stop. And that's the way I read this section. Everything comes

to a stop if you've got two or more guardians.

Hon. W. Oppal: I think the intent of the

section is clear,

and that is that where one person is unable to act, it guards against a

remaining person acting precipitously to the detriment of others. However, it

gives the court the jurisdiction to permit that person to proceed without the

other.

It may well be that the person who's unable to act is unable to

act by reason of permanent incapacity or some other physical concern that would

prevent that person from acting. So this gives more flexibility so that

appropriate orders can be made in those circumstances.

L. Krog: As much as I appreciate that it gives more

flexibility, it also means that everything comes to a stop. Surely the whole

point of having more than one party appointed is not just protection. I would

have thought the logic behind it would be that if one guardian was unable, the

interest of the patient would still be protected because they would have at

least one capable guardian who could continue to make what might be an emergency

medical decision or a significant financial decision in a collapsing market or

anything of that nature.

[ Page 8626 ]

One can contemplate — and I agree that it's not likely — a series

of scenarios, the perfect storm. There's an immediate health care decision that

has to be made, there is a significant financial decision that has to be made,

and you're living in some rural community somewhere. You've got to find a

lawyer, counsel, a judge available and get someone else appointed.

It just strikes me that that doesn't make a lot of sense. It would

be far more sensible to have the remaining guardian in place able to make that

decision and carry on acting until such time as the other guardian was capable

again.

Hon. W. Oppal: The court can take that into consideration

at the initial time of the making of the order. However, if an emergency

situation arises, as one contemplated by the member, I find it difficult to

accept that even in remote areas authority is not available.

We can now make orders by telephone. In fact, they're made by

telephone. Warrants are obtained by telephone now. I would think that if there's

something that requires immediate or urgent attention by the court, a simple

telephone call to a court registry will address the issue.

[1125]

I don't want to bore you with the details of my life. I recall

being called out on weekends, often, for wiretap applications that had to be

made. I spent lots of Saturdays and Sundays in courthouses when I was a member

of the Supreme Court, making immediate orders for wiretap authorizations.

Those things are done immediately by a simple telephone. I

understand the concern raised, though.

L. Krog: On

section 4,

part 10. It says — and it is

mandatory — in subsection (2): "The court must not appoint the following persons

as a guardian: (

a) a person who has a conflict of interest with the adult." Then

it goes on in subsection (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."

It strikes me that if you have an individual who is proposed as

guardian of property, let alone personal guardian, and they are the beneficiary

of the deceased's estate — the entire estate, for example, which might not be

uncommon, as in the case of a parent and a child or a close relative or a friend

or whatever — arguably, their financial interest is in ensuring that the

patient's estate is as big as it can possibly be upon their death.

In other words, from a mental perspective, the beneficiary of the

estate has a vested interest in ensuring the most sizeable possible estate, as

opposed to expending the moneys during the patient's lifetime to provide a

superlative level of care that might, if expended to provide that wonderful

level of care and companionship, exhaust the resources of the patient. So they

die, as the standard joke goes, owing everything on credit cards and having no

assets — the ultimate joke.

I think the Attorney General gets my point around this. I would

argue that the section, when it talks about that person…. When you say you can't

appoint a person who has a conflict and then go on to say that a person who

might be a beneficiary does not have a conflict of interest, you're telling the

courts: "Look, even though this person is going to inherit the entire estate,

they don't have a conflict."

Yet that person, who may be the son who didn't have the greatest

relationship with the father or the mother and who's entirely self-interested,

is going to work their darnedest to build up an estate at the expense of dear

old mom or dad, who's sitting away in a home somewhere not getting the

appropriate amount of care.

I'm just wondering if the Attorney General can comment on my point

around that issue, because I think it is important.

Hon. W. Oppal: The court would consider all of those at the

time of the making of the initial order. It may well be that the beneficiary who

may be appointed is one person who could discharge his or her duties without any

apparent conflict and, while they may be in a position of theoretical conflict,

can discharge the duties without prejudice to the estate.

Keep in mind that

section 21 sets out the fiduciary duties, a

fiduciary relationship that exists in these circumstances.

[1130]

This is an order that may be made where it would be in the

interests of justice, and by that I mean the interest of the estate. It gives

the court the necessary flexibility to appoint that person, notwithstanding that

he or she may have an inherent conflict by virtue of the fact that he or she is

a beneficiary.

In other words, they could discharge their duties in spite of the

fact that they are a beneficiary.

L. Krog:

Section 4,

part 11, is the

section allowing for

the appointment of a temporary property guardian. In relation to that

application, subsection (2) provides that an assessment of the adult's

incapability by a qualified health care provider is not required.

We have a situation where there is arguably some kind of emergency

that requires the protection of the individual, whether it's their health or

their property, and this says that it's a direction, again, to the court. An

assessment is not, in fact, required. Yet I can't imagine a circumstance where

the application would be made or required unless there was some evidence that

the proposed patient, if you will, was incapable of making a decision or

managing their affairs.

I'm just wondering what the point is of not at least allowing for

one assessment to be done. I mean, there must be some kind of evidence,

obviously, that would encourage or inspire the Public Guardian and Trustee to

bring on the application. I'm just wondering why the legislation doesn't require

at least one assessment.

Hon. W. Oppal: These temporary property guardian

appointment provisions under subsection (11) are obviously contemplated where

there is an urgent need for the same. I can see where there is a case of a

wasting

[ Page 8627 ]

asset, a case of property being removed, or property disappearing or property

being encumbered…. In those circumstances, the appointment of a temporary

guardian may be necessary.

We obviously have considered the advice of the Public Guardian and

Trustee, and his office advises that this

section will rarely be used — only

where active management is contemplated or required in the particular

circumstances.

This is a good

section because what it does is allow for a

temporary emergent situation to be addressed before a permanent situation, a

permanent position, is put in place.

L. Krog:

Section 4,

part 12, says that unless the court

otherwise orders, all of the instruments are terminated, such as a power of

attorney. I take it wisely that the intention of this

section is to allow for

the fact that a person may slip in or out of incapability and a temporary order

may be made.

As I understand the section, then, if I have appointed someone my

power of attorney, their termination…. If the court decides in the circumstances

that it will continue, if I'm capable, again, then that appointment would in

fact be revived. That's the way I understand that section. I just wanted to be

clear on that.

[1135]

Hon. W. Oppal: This really provides for flexibility where

there already are agreements in place, and as the words say: "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."

But it goes on to state that upon the appointment of a property

guardian, general powers of attorney…. Unless the court orders otherwise,

enduring powers of attorney representation agreements terminate.

Now, there's a discretion on the part of the court that provides

the necessary flexibility that may be appropriate to separate the responsibility

with respect to different aspects of property and to respect an adult's

preplanned wishes as much as possible. I think that's the best way I can answer

that concern.

L. Krog: On

section 4,

part 14, the provision under

"General Prohibitions" reads: "

(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."

I'm interested to know, and I look to the Attorney General for

guidance here…. I wasn't aware that anyone could change a person's will under

any circumstances. I'm just wondering why this provision is included. As I

understand it, the law has always been that only a capable adult person can, in

fact, draw up a will in British Columbia.

Hon. W. Oppal: Well, I think this is the ultimate form of

protection against any kind of abuse. It really confirms in statutory provisions

that a guardian can't do that. We know that a guardian can't do that, but this

puts in clear statutory language that that type of conduct…. A guardian taking

the position of changing a will, will not be able to do that. We know that as a

rule that can't be done, but this simply puts the prohibition in statutory form.

L. Krog: On

section 4,

part 16, on page 10. This is the

section that outlines the powers of the personal guardian, and it says:

"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."

I certainly appreciate, having been involved with a number

of individuals who were obviously incapable of managing their affairs, that it's

very nice to have these powers. But these are a pretty dramatic description of

the sort of authority that one would normally see granted to a state, to a

police force.

[1140]

One appreciates that we're dealing with people who have been

declared incapable, and it's all intended to be in their best interests. But

once the court has made the order — and that's what we're talking about — you

could then move an individual to any place and decide where they live — any

place. You could take them from Fort St. John and move them down to Vancouver

for the convenience of the personal guardian. You can decide who they should

have contact with or associate with.

Those are extremely important decisions that each one of us as an

individual makes day in and day out. It is one of our most personal rights. I

don't have to sit and listen to someone. I can move over. I can leave the room.

But what this statute is saying is that the person, once appointed, can do that.

[ Page 8628 ]

For example, let's say that I am a person who has been a close

friend of the patient. We have been friends for 50 and 60 years. Indeed, you're

most often going to be dealing with individuals who are very elderly under this

statute. I don't get along with George's son. George has been my buddy for 60

years, but George's son doesn't like me. But you know what? I'm one of the only

people that George still recognizes, and when I talk to George, it brings back

memories and gives him some pleasure in his day.

This says that once George's son has been appointed, George's son

can cut me off entirely and has full authority without restriction, as I read

it, to cut me out of my best friend's life. I just want to hear from the

Attorney General whether my

interpretation is correct.

Hon. W. Oppal: I understand the point raised here by the

member. Keep in mind that these are plenary powers that are given — sub (1) to

sub (8). But that doesn't give carte blanche to anybody to move a person around

where it would not be in the best interests of that person or, to put it another

way, where it would be against the best interests of that person to be moved.

As well, this

section has to be read in conjunction with sections

19 and 20, which set out the general powers, contemplating making decisions that

are based on the best interests of a person. If it's contrary to the best

interests of a person to be moved from Fort St. John to Dawson Creek or from

Fort St. John to Kelowna, then obviously, that would not be in the spirit of the

legislation. In fact, when the initial order is made, there can be an order

preventing that kind of move from being made.

C. Trevena: I'm very interested in this section. As my

colleague from Nanaimo has raised, it's very broad.

The Attorney has just said that it is in the best interests and

it's what is determined to be the best interests, but if we have a guardian for

a person, who is it that's determining the best interests? Is it the guardian,

or is it someone else? If it's someone else, how does that play into this

section?

Hon. W. Oppal: The fundamental basis of this legislation is

that the personal guardian must act in the best interests of the person

involved. The concern is a legitimate one, but the court has an overriding power

to determine what is in the best interests and what isn't in the best interests.

[1145]

Keep in mind that there is a fiduciary duty here that's imposed on

a person who is appointed as a guardian under this legislation. If a particular

move from one jurisdiction to another is against the best interests, this is a

matter that can be clearly remedied by bringing it to, first of all, the

guardian. If the guardian doesn't comply with it, the court is there for that

purpose, and that's really the contemplation and the intent of this section.

C. Trevena: I'm still a little troubled. I've had cases

that come through my constituency office where there's been a person who's been

moved out of one jurisdiction to another, and it has deeply troubled part of

their family. These cases are very complicated.

Taking it to the courts is a level that most people don't want to

have to do. If we're talking of a scenario, which my colleague from Nanaimo has

suggested that we are, where we have one person who has moved out of a

jurisdiction…. He may be on his own. He may be totally reliant on his son. Who

at that stage would take it to the court? How would this proceed?

There is a huge responsibility here on behalf of the guardian for

people who are very dependent. If the guardian is working on his or her own,

there would be nobody to take it to court, and one would hope the court would be

the last place to take it.

Hon. W. Oppal:

Section 20 sets out what the duties of a

guardian are. The practical quandaries or the practical considerations that have

been raised by the member are good in that, from a logistical position, from a

logistical consideration, I can say this. The usual scenario is that the

aggrieved party or a person who is in a position to argue that the interests of

the person involved are not being cared for or are being compromised…. Then that

person or any other person could take the matter back to the court and have the

appropriate decisions made.

These are not really difficult decisions to make, and I've seen

these happen before in court, where one set of relatives will disagree with the

care that's been given to the person. In those circumstances sometimes it's a

difficult task of the court to sort out what is in the best interests of the

person. Sometimes there's a conflict in the evidence, and of course, that's the

difficult duty of the judge to sort all of those things out.

Keep in mind that there is a clear, concise duty on the part of

the guardian, under

section 20, that is set out, and a fiduciary duty that's

imposed on that person to ensure that all things that are done are done in the

best interests of the person involved.

This is

an act that received a lot of attention, and we had

meetings with a lot of different people, a lot of interest groups who raised

very legitimate concerns. We have attempted, and the drafters have attempted, to

address all of those issues that have been raised. I don't know if I've gone on

here too long or if I've answered the question.

The Chair: Are we still on

part 16?

L. Krog: Yes. hon. Chair.

I'm not trying to jump ahead here, but when you go to the

expression of the term "best interests" set out in

section 20 — and we'll deal

with this more fully when we get there — it strikes me that that relates only to

personal health care decisions and pre-expressed wishes regarding health care as

opposed….

[1150]

I would, as my friend has pointed out, argue that the term "best

interests" applies only to that and that therefore, when it comes to making the

decision around deciding whether the adult should have contact or associate

[ Page 8629 ]

with another person, that just falls under "General duties" in

section 19,

where a guardian must act honestly and in good faith, exercise diligent care,

foster independence, etc.

My reading of

section 16 is that there is no provision to give

standing to an individual to bring on an application. To go back to my example,

I'm George's best friend. I don't see anything in here that allows me, once the

decision has been made, to go to court and ask for an order that allows me to

have contact with my best friend.

We are dealing with a situation where the personal guardian has

been appointed. As George's best friend, there would not be, I would suggest to

the Attorney General, any necessity for me to be given notice of the application

or to be informed or even to have any knowledge of the court application,

because I'm just a friend. Now, I may be one of ten friends or 20 or 30, but I

don't get notice of the application, and I don't know that George's son, who's

never liked me, is going to turn around and do this — cut off my relationship

with my best friend.

So that's my point. I don't see anything in here that allows me,

as George's best friend, to go to court and ask for an order allowing me to have

that continued contact, which is, in fact, if it was placed in front of a judge,

a situation where a judge would say: "This would clearly be a good thing for

George." Everyone would agree. The nurses say, the doctors will say that when I

spend some time with George, he's a lot happier. He's getting some pleasure out

of life.

I'm concerned that I don't see anything in here that enables me,

as an affected party who's only doing this for George's best interests, to have

any ability to go to court and ask the court to allow me to continue that

relationship.

Hon. W. Oppal: Well, there are two concerns raised here.

The first is whether the plenary powers set out in

section 16 only deal with the

health care as a best interest of the person. I have to, with respect, disagree

with that because

section 19 of the act deals with considerations other than

health care. Personal care, property matters — those are all contemplated in

that. As well, the overall relationship of a fiduciary indicates that it goes

well beyond the contemplation of health care.

As far as the second issue raised by the member — that is, the

question of standing —

section 62.2 states: "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 a court to exercise that

jurisdiction." So it allows a person, and the words "a person" necessarily mean

anyone who has a legitimate interest, to come before the court and ask for

standing.

[1155]

L. Krog: I hope that the Attorney General's remarks never

have to be read out in a courtroom to convince a judge in question that that, in

fact, is the intent of the legislation. When the Attorney General talks about

the fiduciary duty, the reference to fiduciary duty to an adult is in

section 4,

part 21. It says that a "property guardian has a fiduciary duty," but that

property guardian is not the person who will be making decisions about these

other matters, which are strictly related to a personal guardian.

I need to understand where in the statute the Attorney General is

finding that the personal guardian has a fiduciary duty.

Hon. W. Oppal:

Section 20 deals with decisions of a

personal nature — duties of a personal guardian.

Section 21 deals with the

duties of a property guardian, which contemplates a fiduciary duty.

L. Krog: Noting the hour, I would move the committee rise,

report progress and ask leave to sit again.

Motion approved.

The committee rose at 11:57 a.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was

granted leave to sit again.

Hon. C. Richmond moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 1:30 this

afternoon.

The House adjourned at 11:59 a.m.

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