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

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

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a) of the Supplement to the Court Rules Act is repealed.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 by adding the following subsections:

(2.1) 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 by the adult in the manner required for instruments

Part 5 of the Land Title Act .

(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.

Explanatory Notes

Adult Guardianship Act

SECTION 1: [Adult Guardianship Act, amends

section 1]

(

a) adjusts a

section reference in the definition of

"designated agency" to reflect the proposed amendments to

section 61 of the Act;

(

b) repeals and replaces the definition of "representation

agreement" to remove any reference to an agreement or other document being registered

under the Representation Agreement Act .

SECTION 2: [Adult Guardianship Act, amends

Part 2 heading] repositions

the headings of

Part 2 and Division 1 to ensure that

section 3 of the Act applies to the

entire Act, rather than to

Part 2 alone.

SECTION 3: [Adult Guardianship Act, enacts

section 44.1] expands

the definition of "guardian" to include, for the purposes of

Part 3 of the Adult

Guardianship Act , a committee appointed under the Patients Property Act.

This amendment is necessary because the Patients Property Act will continue

to apply after the abuse and neglect provisions of

Part 3 of the Adult Guardianship

Act come into force.

SECTION 4: [Adult Guardianship Act, amends

section 61] allows the Public

Trustee to limit the duties, powers and responsibilities of agencies designated for the

purpose of

Part 3 of the Act.

Court Rules Act

SECTION 5: [Court Rules Act, amends

section 1 (2)] allows Rules of Court

to be made for matters arising under the Adult Guardianship Act .

SECTION 6: [Supplement to the Court Rules Act, repeals

section 1 (a)]

repeals an amendment that was consequential to the repeal of the Patients

Property Act. The amendment is no longer needed because the Patients

Property Act will remain in force.

Estate Administration Act

SECTION 7: [Estate Administration Act, adds

section 112 (8.1)]

is consequential to the Representation Agreement Act and to the Patients

Property Act remaining in force.

Family Relations Act

SECTION 8: [Family Relations Act, adds

section 91 (2.1 and (2.2)] allows

designated agencies under the Adult Guardianship Act and certain representatives

under the Representation Agreement Act to apply under the Family Relations Act

for an order for support of an adult by his or her children. These provisions replace

amendments to the Family Relations Act that have not been brought into force.

SECTION 9: [Supplement to the Family Relations Act, repeals

section 7

(1) (b)] repeals amendments that are being replaced by the proposed

amendments to

section 91 of the Act.

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

SECTION 10: [Health Care (Consent) and Care Facility (Admission) Act,

amends

section 1] expands the definition of "guardian" to include certain

committees of a patient under the Patients Property Act .

SECTION 11: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 14]

(

a) removes the requirement that a health care provider comply

with subsections (5) and (6) of the

section if care is provided to an adult without the

adult's consent, and

(

b) removes a reference to "emergency" that is redundant

in light of

section 12 of the Act.

SECTION 12: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 16 (3)] clarifies that persons employed in the office of the Public

Trustee can be authorized by the Public Trustee to act for the purposes of the section.

SECTION 13: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 19 (1) (ii)] is consequential to the amendment to

section 16 (3) of the

Act.

SECTION 14: [Health Care (Consent) and Care Facility (Admission) Act, re-enacts

section 27] provides that the work of the Health Care and Care Facility Review

Board may be performed through panels of the Board.

SECTION 15: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 28] allows a health care provider to request a review, provides that a

prescribed advocacy organization can request a review in prescribed circumstances and

repeals a provision consequential to the re-enactment of

section 27 of the Act.

SECTION 16: [Health Care (Consent) and Care Facility (Admission) Act, amends

sections 30 to 32] is consequential to the re-enactment of

section 27 of the Act.

SECTION 17: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 31 (3)] is consequential to the re-enactment of

section 27 of the Act.

SECTION 18: [Health Care (Consent) and Care Facility (Admission) Act, amends

section 34 (2)]

(

a) authorizes the Lieutenant Governor in Council to prescribe the

circumstances in which a prescribed advocacy organization can request a review;

(

b) makes amendments consequential to the re-enactment of

section

27 of the Act;

(

c) is consequential to the re-enactment of

section 27 of the Act.

Land Title Act

SECTION 19: [Land Title Act, enacts

section 47.1] provides that

instruments executed by a representative in a real estate transaction are to be executed

and witnessed in accordance with the requirements of the Land Title Act relating to

instruments executed under a power of attorney.

Patients Property Act

SECTION 20: [Patients Property Act, amends

section 1] adds a

definition of "representation agreement" to provide a link between the Representation

Agreement Act and the Patients Property Act .

SECTION 21: [Patients Property Act, re-enacts

section 19] clarifies that

once a person is declared incapable by court order and becomes a patient, every

representation agreement made by the person is terminated, unless the court orders

otherwise.

SECTION 22: [Patients Property Act, enacts sections 19.1 and 19.2] adds

provisions specifying the effect of a person becoming a patient, other than by court

order, on a power of attorney, on a representation agreement covering only part of the

person's property and on a representation agreement covering all of the person's property.

SECTION 23: [Patients Property Act, repeals

section 25, 26, 29 and 30 (2)] is

consequential to the Public Guardian and Trustee Act .

Power of Attorney Act

SECTION 24: [Power of Attorney Act, repeals and replaces

section 8 (2)]

adds references to the termination of a power of attorney under the proposed sections 19

and 19.1 of the Patients Property Act .

SECTION 25: [Power of Attorney Act, enacts

section 8.1] provides that a

pre-existing enduring power of attorney made under

section 8 of the Act is not affected by

the repeal of that section.

Public Guardian and Trustee Act

SECTION 26: [Public Guardian and Trustee Act, amends

section 1]

(

a) includes in the definition of "guardian" a committee

under the Patients Property Act ;

(

b) repeals and replaces the definition of "representation

agreement" to remove the reference to the registration of the agreement.

Representation Agreement Act

SECTION 27: [Representation Agreement Act, amends

section 7]

(

a) along with the proposed amendment to

section 41 of the Act,

authorizes the making of regulations respecting the routine management of an adult's

financial affairs under a standard representation agreement;

(

b) removes the limitation that under a standard representation

agreement a representative cannot be authorized to make investments, other than

investments that under the Trustee Act a trustee is authorized to make;

(

c) clarifies that a representative named in a standard agreement

is not authorized to make a decision on the adult's behalf to refuse life supporting care

and treatment.

SECTION 28: [Representation Agreement Act, amends

section 9 (1)] allows

an adult who makes an enhanced representation agreement to authorize a representative to

invest generally without the adult having to specify in advance how the investments are to

be made.

SECTION 29: [Representation Agreement Act, amends

section 12]

(

a) requires that a monitor be named if an adult makes a standard

agreement with routine financial management provisions, and specifies the exceptions to

this general rule;

(

b) is consequential to the proposed provision requiring that a

monitor be named.

SECTION 30: [Representation Agreement Act, adds

section 13 (2.1) and (7)] provides

that the execution and witnessing requirements of the Land Title Act apply to

certain representation agreements. Also allows a representative to apply for a court order

to cure a defect in the execution of a representation agreement.

SECTION 31: [Representation Agreement Act, amends

section 15 (1)] removes

a reference to a representation agreement being registered.

SECTION 32: [Representation Agreement Act, amends

section 27 (1) (a)]

clarifies that an adult has to be capable of making a representation agreement in order to

be able to change or revoke a representation agreement.

SECTION 33: [Representation Agreement Act, adds

section 28 (1) (d)] is

consequential to the proposed

section 19.1 (3) (

b) of the Patients Property Act

which provides for the cancellation of certain provisions of a representation agreement if

the adult becomes a patient other than by court order and the Public Trustee considers it

necessary or desirable to manage the patient's property.

SECTION 34: [Representation Agreement Act, adds

section 29 (1) (h)] is

consequential to the proposed

section 19 of the Patients Property Act which

provides for the cancellation of a representation agreement if the adult becomes a patient

by court order.

SECTION 35: [Representation Agreement Act, amends

section 30 (3)]

(

a) allows the Public Trustee to apply for a court order to cure a

defect in the execution of a representation agreement;

(

b) allows the Public Trustee to recommend that someone else apply

for a court order to cure a defect in the execution of a representation agreement;

(

c) ensures that the Public Trustee has the requisite authority to

recommend any other action considered necessary if an objection is filed to a

representation agreement, to a change to that agreement or to a revocation of that

agreement.

SECTION 36: [Representation Agreement Act, adds

section 32 (4)]

authorizes the Supreme Court to order that a representation agreement is not rendered

invalid by a defect in the execution of the agreement.

SECTION 37: [Representation Agreement Act, re-enacts

section 39] repeals

a provision that permits enduring powers of attorney to be registered under the Act and

then treated as representation agreements. The replacement

section provides that

pre-existing representation agreements are, in certain circumstances, valid.

SECTION 38: [Representation Agreement Act, amends

section 42 (2)] expands

the Lieutenant Governor in Council's authority to make regulations.

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