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1998/99 Legislative Session: 3rd Session, 36th Parliament

THIRD READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 12th day of July, 1999

Ian D. Izard, Law Clerk

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND MINISTER RESPONSIBLE FOR

MULTICULTURALISM, HUMAN RIGHTS AND IMMIGRATION

BILL 92 – 1999

ADULT GUARDIANSHIP STATUTES

AMENDMENT ACT, 1999

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the

Province of British Columbia, enacts as follows:

Adult Guardianship Act

Section 1 of the Adult Guardianship Act, R.S.B.C. 1996, c. 6, is amended

(

a) in paragraph (

b) of the definition of "designated agency" by

striking out "section 61 (a)" and substituting "section

61 (a.1)" , and

(

b) by repealing the definition of "representation agreement" and

substituting the following:

"representation agreement" means an agreement

made under the Representation Agreement Act; .

Part 2 is amended by repealing the heading of

Part 2 and the heading of

Division 1 and by substituting the following after

section 3:

Part 2 – Decision Makers, Guardians and Monitors

Division 1 – Appointment Procedure .

Part 3 is amended by adding the following section:

Definition

44.1 In this Part, "guardian" includes a

committee under the Patients Property Act.

Section 61 is amended by repealing paragraph (

a) and substituting the following

paragraphs:

(

a) by regulation, designate as agencies for the purposes of

Part

2 any public body, organization or person,

(a.1) by regulation, designate as agencies for the purposes of any

or all of the provisions of

Part 3 any public body, organization or person and limit their

functions as designated agencies by reference to any factor that the Public Trustee

considers advisable, .

Court Rules Act

Section 1 (2) of the Court Rules Act, R.S.B.C. 1996, c. 80, is amended by

adding "the Adult Guardianship Act, " before "the

Infants Act " .

Section 1 (

a) of the Supplement to the Court Rules Act is repealed.

Estate Administration Act

Section 112 of the Estate Administration Act, R.S.B.C. 1996, c. 122, is amended

by adding the following subsection:

(8.1) If

(

a) the court grants or reseals probate or letters of

administration under this section, and

(

b) a person referred to in subsection (1) (

a) is or may be a

minor, a person with a mental disorder or a person who has a committee or representative,

the executor or administrator of the estate must, within 45 days

of the grant or resealing, mail or deliver to the Public Trustee a copy of that grant or

resealed grant.

Family Relations Act

Section 91 of the Family Relations Act, R.S.B.C. 1996, c. 128, is amended by

adding the following subsections:

(2.1) A designated agency, as defined in the Adult Guardianship

Act, may apply for an order under this Part on behalf of a parent described in

section

90 of this Act after an investigation is conducted under

Part 3 of that Act.

(2.2) A representative may apply for an order under this Part on

behalf of a parent described in

section 90 of this Act, if the representative is

authorized under the Representation Agreement Act to make decisions about the

routine management of the parent's financial affairs.

Section 7 (1) (

b) of the Supplement to the Family Relations Act is repealed.

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

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 definition of "guardian" and substituting

the following:

"guardian" means a person appointed as

(

a) a guardian under the Adult Guardianship Act, or

(

b) a committee of a person who is declared under the Patients

Property Act to be

(

i) incapable of managing himself or herself, or

(ii) incapable of managing himself or herself and his or her

affairs; , and

(

b) by repealing the definition of "representation agreement"

and substituting the following:

"representation agreement" means an agreement

made under the Representation Agreement Act; .

Section 14 is amended

(

a) in subsections (1) (

d) and (3) by striking out "subsections

(4) to (7)" and substituting "subsections (4) and (7)" , and

(

b) in subsection (8) by striking out "in an emergency" .

Section 16 (3) is amended by striking out "someone authorized by

the Public Trustee." and substituting "a person, including a

person employed in the office of the Public Trustee, authorized by the Public

Trustee."

Section 19 (1) (ii) is amended by striking out "someone

authorized" and substituting "a person authorized" .

Section 27 is repealed and the following substituted:

Health Care and Care Facility Review Board

(1) The minister must establish a Health Care and Care

Facility Review Board, appoint its members and designate a member of the board as its

chair.

(2) The chair of the board may establish one or more panels of the

board and designate the chair of each panel established and a panel, if established, must

include at least

(

a) one health care provider,

(

b) one member of the Law Society of British Columbia, and

(

c) one person who is not a health care provider nor a member of

the Law Society of British Columbia.

(3) If a panel is established

(

a) the chair of the board may refer matters that are before the

board to a panel or a matter that is before a panel to the board or another panel,

(

b) the panel has all the jurisdiction and may exercise and

perform the powers and duties of the board with respect to matters that come before the

panel,

(

c) the board or 2 or more panels may proceed with separate

matters at the same time, and

(

d) a decision or order of the panel is a decision or order of the

board.

(4) The members of the board are entitled to be reimbursed by the

minister for reasonable travelling and other out of pocket expenses necessarily incurred

in discharging their duties, and may be paid remuneration set by the Lieutenant Governor

in Council.

Section 28 is amended

(

a) in subsection (2) by adding the following paragraph:

(d.1) a health care provider caring for the adult referred to in

paragraph (a); ,

(

b) in subsection (2) (

e) by adding "in prescribed

circumstances" after "organization" , and

(

c) by repealing subsection (4).

16 Sections 30 to 32 are amended by striking out "a board"

wherever it appears and substituting "the board" .

Section 31 (3) is amended by striking out "for the region where

the health care is provided or is to be provided" .

Section 34 (2) is amended

(

a) by adding the following paragraph:

(k.1) prescribing the circumstances in which a prescribed advocacy

organization may request a review. ,

(

b) by repealing paragraph (j), and

(

c) in paragraph (

l) by striking out "before boards." and

substituting "before the board."

Land Title Act

19 The Land Title Act, R.S.B.C. 1996, c. 250, is amended by adding the following

section:

Representation agreement

47.1

(1) This Part and

section 51 apply to an instrument

executed by a representative under a representation agreement made under

section 9 of the Representation

Agreement Act as though the representation agreement were an enduring power of

attorney.

(2) For the purposes of subsection (1), the following references

in this Part and in

section 51 are to be read as follows:

(

a) a reference to a power of attorney or to an enduring power of

attorney as a reference to a representation agreement;

(

b) a reference to an attorney as a reference to a representative;

(

c) a reference to the Power of Attorney Act or to a

provision of that Act as a reference to the Representation Agreement Act or to the

corresponding provision of that Act, as the case may be.

Patients Property Act

Section 1 of the Patients Property Act, R.S.B.C. 1996, c. 349, is amended by

adding the following definition:

"representation agreement" means an agreement

made under the Representation Agreement Act.

Section 19 is repealed and the following substituted:

Effect on power of attorney or representation agreement of person

becoming a patient by court order

19 On a person becoming a patient as defined in paragraph

(

b) of the definition of "patient" in

section 1,

(

a) every power of attorney given by the person is terminated, and

(

b) unless the court orders otherwise, every representation

agreement made by the person is terminated.

22 The following sections are added:

Effect on power of attorney or certain representation agreements

person becoming a patient other than by court order

19.1

(1) On a person becoming a patient as defined in

paragraph (

a) of the definition of "patient" in

section 1, the following are

suspended:

(

a) every power of attorney that was given by the person;

(

b) every provision of a representation agreement made by the

person in respect of his or her property unless the representation agreement is one

referred to in

section 19.2 (1) (b).

(2) After receiving a copy of the suspended power of attorney or

of a representation agreement any provision of which has been suspended under subsection

(1) and any information that the Public Trustee may require, the Public Trustee must

determine whether it is necessary or desirable for the Public Trustee to manage the

patient's property under this Act.

(3) If the Public Trustee determines that it is necessary or

desirable for the Public Trustee to manage the patient's property, then on the making of

the determination

(

a) the power of attorney that was suspended under subsection

(1) is terminated, or

(

b) the provisions of the representation agreement that were

suspended under subsection (1) are cancelled,

as the case may be.

(4) If the Public Trustee determines that it is not necessary or

desirable for the Public Trustee to manage the patient's property,

(

a) the Public Trustee's authority as committee under the

certificate referred to in paragraph (

a) of the definition of "patient" in

section 1, is terminated on the making of that determination, and

(

b) the suspension of the power of attorney or of the provisions

of the representation agreement ends on the termination of the Public Trustee's authority

as committee.

Termination of committee if representation agreement applies to

all property of person

becoming a patient other than by court order

19.2

(1) This

section applies if

(

a) before becoming a patient as defined in paragraph (

a) of the

definition of "patient" in

section 1, a person made a representation agreement

in respect of which a certificate was completed under

section 9 (2) (

b) of the Representation

Agreement Act,

(

b) the representation agreement, by virtue of the authority given

to a representative under

section 9 (1) (g), (

h) or (

i) of the Representation Agreement

Act , or under both that

section and

section 7 (1) (

b) or (

d) of that Act, applies to

all of the person's property, and

(

c) the Public Trustee receives a copy of each of the following:

(

i) the representation agreement;

(ii) the certificates referred to in sections 5 (4), 9 (2) (b), 12

(3) and 13 (6) of the Representation Agreement Act;

(iii) an undertaking in the prescribed form signed by the

representative.

(2) If the conditions in subsection (1) are met, the Public

Trustee's authority as committee under the certificate referred to in paragraph (

a) of the

definition of "patient" in

section 1 is terminated on the Public Trustee

notifying the representative that those conditions have been met.

(3) The Lieutenant Governor in Council may prescribe a form of

undertaking for the purposes of subsection (1) (c) (iii).

23 Sections 25, 26, 29 and 30 (2) are repealed.

Power of Attorney Act

Section 8 (2) of the Power of Attorney Act, R.S.B.C. 1996, c. 370, is repealed

and the following substituted:

(2) The authority of an attorney given by a power of attorney

referred to in subsection (1) terminates

(

a) on the making of an order under

section 3 of the Patients

Property Act,

(

b) on the appointment of a committee under

section 6 (1) of that

Act, or

(

c) as provided in

section 19 (

a) or 19.1 (3) (

a) of that Act.

25 The following

section is added:

Powers of attorney made before repeal of

section 8

8.1 Despite the repeal of

section 8,

(

a) a power of attorney referred to in that

section continues to

have effect if made before the repeal of that

section comes into force, and

(

b) that

section continues to apply in respect of that power of

attorney.

Public Guardian and Trustee Act

Section 1 of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, is

amended

(

a) in the definition of "guardian" by adding ",

and includes a committee under the Patients Property Act " after "as

a guardian" , and

(

b) by repealing the definition of "representation agreement"

and substituting the following:

"representation agreement" means an agreement

made under the Representation Agreement Act; .

Representation Agreement Act

Section 7 of the Representation Agreement Act, R.S.B.C. 1996, c. 405, is

amended

(

a) in subsection (1) (

b) by striking out ", for example,"

and substituting ", subject to the regulations," ,

(

b) by repealing subsection (1) (b) (iv) and substituting the following:

(iv) the making of investments; , and

(

c) by adding the following subsection:

(2.1) A representative may not be authorized under this

section to

help make, or to make on the adult's behalf, a decision to refuse life-supporting care or

treatment.

Section 9 (1) is amended by repealing paragraph (

h) and substituting the

following:

(

h) invest the adult's assets; .

Section 12 is amended

(

a) by adding the following subsection:

(1.1) Despite subsection (1) (b), an adult must name someone as a

monitor if the adult proposes to authorize a representative to do anything referred to in

section 7 (1) (

b) unless

(

a) the adult consults with a person referred to in

section 9 (2)

(a) (

i) or (ii) and that person completes a certificate in the prescribed form, or

(

b) the representative is the adult's spouse. , and

(

b) in subsection (4) by striking out "subsection (1)"

and substituting "subsection (1) or (1.1)" .

Section 13 is amended

(

a) by repealing subsections (2) and (3) and substituting the following:

(2) A representation agreement must be executed by the adult and

by each representative and each alternative representative named in the agreement.

(3) The persons referred to in subsection (2) need not be present

together when they execute the representation agreement, but each of them must execute the

agreement in the presence of 2 witnesses.

(3.1) If an instrument executed by a representative under a

representation agreement made under

section 9 of this Act is to be effective for the

purposes of the Land Title Act,

(

a) one of the witnesses to the execution of that agreement by the

adult must be an officer as defined in

section 41 of the Land Title Act, and

(

b) the execution of the representation agreement by the adult

must be witnessed or proved in the manner required for instruments by

Part 5 of the Land

Title Act. , and

(

b) by adding the following subsection:

(7) If there is a defect in the execution of a representation

agreement, a person named in the agreement as a representative may apply to the court for

an order under

section 31 (4) that the agreement is not invalid solely because of the

defect.

Section 15 (1) is amended by striking out "registered"

and substituting "executed" .

Section 27 (1) (

a) is amended by striking out "changing or

revoking" and substituting "making" .

Section 28 (1) is amended by striking out "or" at the

end of paragraph (b), by adding ", or" at the end of paragraph (

c) and by adding the following paragraph:

(

d) as provided in

section 19.1 (3) (

b) of the Patients

Property Act.

Section 29 (1) is amended by adding the following paragraph:

(

h) as provided in

section 19 of the Patients Property Act.

Section 30 (3) is amended

(

a) by adding the following paragraph:

(e.1) apply to the court for an order that a representation

agreement is not invalid solely because of a defect in the execution of the agreement; ,

(

b) in paragraph (

f) by striking out "paragraph (

d) or (e);" and

substituting "paragraph (d), (

e) or (e.1);" , and

(

c) by adding the following paragraph:

(

h) take any other action that the Public Trustee considers

necessary.

Section 32 is amended by adding the following subsection:

(4) On application under

section 13 (7) or 30 (3) (e.1) or (f),

the court may order that a representation agreement is not invalid solely because of a

defect in the execution of the agreement.

Section 39 is repealed and the following substituted:

Pre-existing agreements

39 An agreement that

(

a) was made before this Act authorized the making of a

representation agreement, and

(

b) would have been a valid representation agreement if, at the

time the agreement was made, this Act had authorized the making of a representation

agreement,

is valid and is deemed for all purposes to have been made under

this Act.

Section 42 (2) is amended by adding the following paragraphs:

(a.1) respecting what constitutes "routine management of the

adult's financial affairs" for the purposes of

section 7 (1) (b), including

regulations limiting, modifying or supplementing the matters listed in subparagraphs (

i) to (iv) of that section;

(g.1) defining any word or expression used but not defined in this

Act.

Commencement

39 This Act comes into force by regulation of the

Lieutenant Governor in Council.

Copyright © 1999: Queen's Printer, Victoria, British Columbia, Canada