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Bill 19, Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996

Harnick, Hon. Charles Attorney General

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Advocacy, Consent and Substitute Decisions

Statute Law Amendment Act, 1995

EXPLANATORY NOTE

Part I: Advocacy Act, 1992

Part I of the Bill repeals the Advocacy Act, 1992 .

Part II: Health Care Consent Act, 1995

Part II of the Bill repeals the Consent to Treatment Act, 1992 and replaces it with the Health Care Consent Act, 1995 , which is set out in

Schedule A. The following are some of the ways in which the new Act differs from the

existing Act:

1. The new Act provides a list of things that do not constitute treatment for the purpose of the Act. The list includes assessments of capacity, examinations to determine the general nature of a person's condition and treatment that in the

circumstances poses little or no risk of harm to the person. (See

section 7 of the new Act and the definition of "treatment" in subsection 2 (1) of the new Act.)

2. The new Act provides

definitions of "course of treatment" and "plan of treatment". (See subsection 2 (1) of the new Act.)

3. The new Act updates the definition of "health practitioner" to reflect the terminology of the Regulated Health Professions Act, 1991 . (See subsection 2 (1) of the new Act.)

4. The new Act creates a presumption of capacity for all persons. (See subsections 3 (2) and (3) of the new Act.)

5. The new Act removes all references to rights advisers and eliminates all requirements that rights advice or notices respecting rights advice be provided to a person who is found by a health practitioner to be incapable with respect to a

treatment.

6. The new Act clarifies the test for informed consent. (See subsections 10 (2) and (3) of the new Act.)

7. Under the new Act, a health practitioner is entitled to presume that consent to a treatment includes consent to a variation or adjustment in the treatment or to continuation of the treatment in a different setting, if the risks and benefits

are not significantly different as a result of the variation, adjustment or change of setting. (See

section 11 of the new Act.)

8. Under the new Act, if a plan of treatment is developed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan, propose the plan to the person, determine the person's capacity with respect to

the plan and ensure that consent is obtained to the plan. (See

section 12 of the new Act.)

9. Under the existing Act, if an application is made to the Board for review of a finding of incapacity or for appointment of a representative for an incapable person and the Board renders a decision in the matter, the health practitioner is

prohibited from administering the treatment during the seven-day period for commencing an appeal from the Board's decision. Under the new Act, the health practitioner is not prohibited from administering the treatment during this period, unless

one of the parties indicates to the health practitioner that he or she intends to appeal. (See

section 16 of the new Act.)

10. With respect to the scheme for determining who is authorized to give or refuse consent to a treatment on an incapable person's behalf, the new Act still provides a list of possible substitute decision-makers and ranks the persons on the

list. However, parents and children are ranked equally and statements by family members are no longer required. (See subsections 18 (1) and (3) of the new Act.)

Under the existing Act, an attorney for personal care is prohibited from giving or refusing consent if the power of attorney was made after the health practitioner found the grantor to be incapable with respect to the treatment. The new Act

removes this prohibition on the basis that a person may be capable of giving a power of attorney for personal care even if he or she is incapable with respect to a treatment.

The new Act specifies that a custodial parent ranks before an access parent and that a person who isprohibited by court order or separation agreement from having access to the incapable person is prohibited from giving or refusing consent on

the incapable person's behalf. In addition, the new Act specifies that if a children's aid society or other person is entitled to give or refuse consent in the place of the parent, the parent may not give or refuse consent. (See paragraph 5 of

subsection 18 (1) and clause 18 (2) (

c) of the new Act.)

The new Act clarifies that two persons are not spouses if they are living separate and apart within the meaning of the Divorce Act (Canada) and that relatives are persons who are related by blood, marriage or adoption. (See subsections

18 (8) and (10) of the new Act.)

Under the new Act, a person may give or refuse consent if he or she believes that no person of higher or equal rank exists, or that although a person of higher or equal rank exists, the person is not a guardian of the person, an attorney for

personal care or a Board-appointed representative and would not object to him or her making the decision. This scheme applies whether the person giving or refusing consent is present when the treatment is proposed or has been contacted in some

other way. This scheme applies whether the person giving or refusing consent is a guardian of the person, an attorney for personal care, a Board-appointed representative or any other person on the list. The equivalent scheme in the existing Act

applies only if the person giving or refusing consent is present when the treatment is proposed and only if he or she is a person other than a guardian of the person, an attorney for personal care or a Board-appointed representative. (See

subsection 18 (4) of the new Act.)

The Public Guardian and Trustee is still the decision-maker of last resort if there is no one else on the list to make the decision or if two or more persons of equal rank disagree. (See subsections 18 (5) and (6) of the new Act.)

11. Although statements by family members are not required by the new Act, health practitioners are permitted to rely on assertions made voluntarily by anyone who gives or refuses consent to a treatment on an incapable person's behalf. (See

subsection 27 (6) of the new Act.)

12. When a substitute decision-maker is deciding what the incapable person's best interests are, the new Actrequires him or her to consider not only whether the treatment is likely to improve the incapable person's condition or well-being but

also whether the treatment is likely to prevent the person's condition or well-being from deteriorating or is likely to reduce the extent or the rate of the deterioration. (See paragraph 1 of clause 19 (2) (

c) of the new Act.)

13. Under the new Act, a substitute decision-maker is no longer prohibited from consenting on the incapable person's behalf to a treatment involving the use of electric shock as aversive conditioning.

14. In addition to permitting emergency treatment without consent of an incapable person, the new Act permits emergency treatment without consent of an apparently capable person if the communication required in order for the person to give or

refuse consent cannot take place because of a language barrier or because the person has a disability that prevents the communication from taking place. However, reasonable steps must first have been taken to find a practical means of enabling the

communication to take place and there must be no reason to believe that the person does not want the treatment. (See

section 23 of the new Act.)

15. Under the existing Act, if consent to a treatment is refused on an incapable person's behalf in an emergency, the health practitioner may treat despite the refusal if he or she is of the opinion that the substitute decision-maker did not

comply with the decision-making principles set out in the Act, unless the substitute decision-maker is a guardian of the person, an attorney for personal care or a Board-appointed representative. Under the new Act, the health practitioner may

treat despite the refusal even if the substitute decision-maker is a guardian of the person, an attorney for personal care or a Board-appointed representative. (See

section 25 of the new Act.)

16. In addition to providing health practitioners with protection from liability in respect of the administration of a treatment if it is done with an apparently valid consent, the new Act provides health practitioners with protection from

liability in respect of the withholding or withdrawing of a treatment if it is done in accordance with a plan of treatment and with an apparently valid consent. (See

section 27 of the new Act.)

17. The new Act provides health practitioners and substitute decision-makers with protection from liability not only in respect of decisions concerning treatment of an incapable person but also in respect of decisions concerning admission of an

incapable person to a facility for the purpose of treatment. (See

section 29 of the new Act.)

18. The new Act gives the Board broader powers with respect to applications for appointment of a representative for an incapable person. The Board may authorize the representative to give or refuse consent to a particular treatment that has

been proposed for the incapable person or may authorize the representative to give or refuse consent to specified treatments or kinds of treatment whenever a health practitioner finds the person incapable with respect to the treatment. (See

subsection 31 (5) of the new Act.)

19. The new Act clarifies that applications to the Board for review of a decision to admit a person to a psychiatric facility for the purpose of treatment are not to be made by informal patients, as defined in the Mental Health Act ,

who are between the ages of 12 and 15, as such persons are provided with a right of application under

section 13 of the Mental Health Act . (See subsection 32 (2) of the new Act.)

20. The new Act permits a health practitioner to apply to the Board if he or she is of the opinion that a substitute decision-maker who gave or refused consent to a treatment on an incapable person's behalf did not comply with the

decision-making principles set out in the Act. If the Board determines that the substitute decision-maker did not comply with the principles, it may give him or her directions. If the substitute decision-maker does not comply with the directions,

he or she is deemed not to be authorized to give or refuse consent to the treatment on the incapable person's behalf. (See

section 35 of the new Act.)

21. In addition to providing a scheme for obtaining consent to treatment on behalf of incapable persons, the new Act provides a scheme for obtaining consent on behalf of incapable persons to their admission to certain care facilities and a

scheme for obtaining decisions on behalf of incapable residents of those facilities concerning the personal assistance services provided to them under personal assistance plans. The consent to treatment scheme is used as a model for the other two

schemes.

Definitions of "care facility", "personal assistance service", "personal assistance plan" and"resident" are provided. (See Parts III and IV of the new Act and the

definitions in subsection 2 (1) of the new Act.)

22. The name "Consent and Capacity Review Board" is changed to "Consent and Capacity Board". (See

section 68 of the new Act.)

23. Under the new Act, the Board is no longer required to sit in panels of three or five members for every application. The chair of the Board may assign a member of the Board to sit alone with respect to a particular application if he or she

meets the qualifications specified in the Act and the qualifications specified by the chair. (See

section 71 of the new Act.)

24. The new Act eliminates the requirement that at least one of the members of a panel assigned to deal with an application involving capacity must be a person with expertise in evaluating capacity.

25. Under the existing Act, a member of the Board must not take

part in the hearing of a matter that concerns a person who was at any time the member's patient or client. Under the new Act, the prohibition applies only if the person was the

member's patient or client within the past five years. (See subsection 72 (1) of the new Act.)

26. Under the existing Act, a member of the Board who is an officer or employee of a hospital or other facility or who has a direct financial interest in such a facility must not take

part in the hearing of a matter that concerns a person who

was at any time a patient or resident of the facility. Under the new Act, the prohibition applies only if the person is currently a patient or resident of the facility. (See subsection 72 (2) of the new Act.)

27. Under the existing Act, the Board must issue written reasons with respect to every application and must provide the reasons to the parties within two days after rendering its decision. Under the new Act, the Board must issue written reasons

only if one of the parties so requests, and in that case, must provide the reasons to the parties within two business days after the Board receives the request. (See subsections 73 (4) and (8) of the new Act.)

28. The new Act makes it an offence for a person who makes a decision on an incapable person's behalf concerning atreatment, admission to a care facility or a personal assistance plan to knowingly make a false assertion respecting certain

matters or to knowingly contravene wishes that the incapable person expressed while capable and after attaining the age of 16 years. (See sections 80 and 82 of the new Act.)

Part III: Substitute Decisions Act, 1992

Part III of the Bill amends the Substitute Decisions Act, 1992 . The proposed amendments include the following changes:

1. With respect to the formalities of executing a power of attorney, the Bill would remove the requirement that a witness have no reason to believe the grantor to be incapable of giving the power of attorney. (See subsections 6 (3) and 31

(2) of the Bill.)

2. Appointment of the Public Guardian and Trustee as statutory guardian of someone's property would no longer terminate a continuing power of attorney. In addition,

section 16 of the Act could not be used by a person to make the Public Guardian

and Trustee someone else's statutory guardian unless the person has made reasonable inquiries and has no knowledge of the existence of any spouse, partner or relative who intends to apply to court for guardianship or of any attorney under a

continuing power of attorney that covers all of the property. If the Public Guardian and Trustee does become a person's statutory guardian, the statutory guardianship may be terminated by an attorney under a continuing power of attorney that

covers all of the property. (See subsection 8 (2) and

section 10 of the Bill; proposed subsection 16 (2) and

section 16.1 of the Act).

3. The existing Act requires that a person seeking to replace the Public Guardian and Trustee as someone's statutory guardian of property be able to post security for the value of the property, unless the requirement is dispensed with by the

court or, in cases where the value of property is less than $50,000, by the Public Guardian and Trustee. Under the proposed amendments, security would not be necessary, regardless of the value of the property, unless the Public Guardian and

Trustee specifically requires it. The court would retain the power to dispense with security. (See

section 11 of the Bill; proposed subsections 17 (6) and (7) of the Act.)

4. In the case of a statutory guardianship of property for a patient in a psychiatric facility who has been discharged with a notice of continuance under the Mental Health Act , the statutory guardianship would no longer terminate

automatically six months after the discharge. In the case of a statutory guardianship created under

section 16 of the Act, the person subject to the guardianship would no longer be able to terminate it by notice to the guardian. In both these

cases, the guardianship would terminate if an assessment determined the person to be capable of managing property. The person could apply to the Consent and Capacity Board to review a finding of incapacity. The court would also be authorized to

terminate a statutory guardianship. (See

section 13 of the Bill; proposed sections 20, 20.1, 20.2 and 20.3 of the Act.)

5. The court could not appoint the Public Guardian and Trustee as a guardian of property or guardian of the person unless there is no other suitable person who is available and willing to be appointed. (See subsections 14 (3) and 36 (3) of the

Bill; proposed subsections 24 (2.2) and 57 (2.2) of the Act.)

6. A guardian of property or attorney under a continuing power of attorney would be prohibited from disposing of property that the guardian or attorney knows is specifically given by the incapable person's will, subject to certain exceptions.

(See

section 22 of the Bill; proposed

section 35.1 of the Act.)

7. An attorney under a power of attorney for personal care would be able to act if the attorney is authorized to act under the Health Care Consent Act, 1995 or, unless the power of attorney specifically requires confirmation of

incapacity, if the attorney has reasonable grounds to believe that the grantor is incapable of personal care. A power of attorney for personal care could contain special provisions (e.g. a provision permitting the use of force to obtain a

confirmation of incapacity or waiving the right to revoke the power of attorney without a finding of capacity), but these special provisions would not be effective unless, within 30 days after the power of attorney is executed, an assessor finds

that the grantor is capable of personal care. (See subsection 30 (6) and

section 32 of the Bill; proposed sections 49 and 50 of the Act.)

8. Additional regulation-making authority would permit regulations respecting the compensation of guardians ofthe person and attorneys under powers of attorney for personal care, regulating assessors and assessments, and authorizing health

practitioners and other service providers to disclose personal information for the purpose of assessments, guardianship applications and Public Guardian and Trustee investigations. (See

section 60 of the Bill; proposed clauses 90 (1) (c.1), (e.1),

(e.2), (e.4) and (e.5) of the Act.)

9. References to functions performed by advocates (persons authorized under the Advocacy Act, 1992 to provide advocacy services on behalf of the Advocacy Commission) would be removed from the Act. (See, for example,

section 10,

subsection 16 (2) and sections 32 and 52 of the Bill, repealing subsections 16 (5), 27 (5), 49 (4), 50 (8) and 76 (1) of the existing Act.)

10. If a guardian has been appointed by the court, further orders could be obtained from the court by way of motion, instead of by application. (See, for example, sections 17, 26, 41, 45 and 53 of the Bill; proposed sections 28, 29, 39, 63, 64,

69 and 77 of the Act.)

Part IV: Amendments to Other Acts

Part IV of the Bill amends other statutes. The Public Guardian and Trustee Act is amended to authorize delegation of the Public Guardian and Trustee's powers and duties to employees in his or her office, to clarify that the Public

Guardian and Trustee may be appointed as a trustee under any Act and to allow the Public Guardian and Trustee to charge fees for his or her services. The other amendments in

Part IV of the Bill are ancillary to Parts I, II and III.

Part V: Transition, Commencement and

Short Title

Part V of the Bill contains transitional provisions preserving the validity of powers of attorney given under earlier legislation and making the Public Guardian and Trustee the guardian of property for certain individuals on behalf of whom he

or she acted under earlier legislation.

Part V also provides that the Bill comes into force on proclamation.

Bill1995

An Act to repeal the Advocacy Act, 1992,

revise the Consent to Treatment Act, 1992,

amend the Substitute Decisions Act, 1992

and amend other Acts in respect of related matters

CONTENTS

Part

Section(

s) Advocacy Act, 1992

Health Care Consent Act, 1995

III

Substitute Decisions Act, 1992

3-60

Amendments to other Acts

61-75

Charitable Institutions Act

Child and Family Services Act

Children's Law Reform Act

Consent and Capacity Statute Law Amendment

Act, 1992

Education Act

Freedom of Information and Protection of

Privacy Act

Health Protection and Promotion Act

Homes for the Aged and Rest Homes Act

Liquor Licence Act

Loan and Trust Corporations Act

Long-Term Care Act, 1994

Mental Health Act

Municipal Freedom of Information and

Protection of Privacy Act

Nursing Homes Act

Public Guardian and Trustee Act

Transition, Commencement and

Short Title

76-79

Schedule A - Health Care Consent Act, 1995

_________________________

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PART I

ADVOCACY ACT, 1992

1. The Advocacy Act, 1992 is repealed.

PART II

HEALTH CARE CONSENT ACT, 1995

(1) The Health Care Consent Act, 1995 , as set out in

Schedule A to this Act, is hereby enacted and comes into force on the day this

section comes into force.

(2) The Consent to Treatment Act, 1992 , as amended by the Statutes of Ontario, 1994,

chapter 27,

section 43, is repealed.

PART III

SUBSTITUTE DECISIONS ACT, 1992

(1) The definition of "advocate" in subsection 1 (1) of the Substitute Decisions Act, 1992 is repealed.

(2) The definition of "prescribed" in subsection 1 (1) of the Act is repealed and the following substituted:

"prescribed" means prescribed by the regulations. ("prescrit")

(3) Subsection 1 (1) of the Act is amended by adding the following definition:

"psychiatric facility" has the same meaning as in the Mental Health Act . ("établissement psychiatrique")

(4) Subsection 1 (1) of the Act is amended by adding the following definition:

"regulations" means the regulations made under this Act. ("règlements")

(5) Section 1 of the Act is amended by adding the following subsection:

Relatives

(2.1) Two persons are relatives for the purpose of this Act if they are related by blood, marriage or adoption.

(6) Subsection 1 (3) of the Act is amended by striking out "An advocate or other person" in the first line and substituting "A person".

4. (1) Subsection 7 (1) of the Act is repealed and the following substituted:

Continuing power of attorney for property

(1) A power of attorney for property is a continuing power of attorney if,

(

a) it states that it is a continuing power of attorney; or

(

b) it expresses the intention that the authority given may be exercised during the grantor's incapacity to manage property.

(2) Subsection 7 (3) of the Act is repealed and the following substituted:

P.G.T. may be attorney

(3) The continuing power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is executed.

(3) Subsection 7 (5) of the Act is amended by inserting "of managing property" after "incapable" in the third line.

(4) Section 7 of the Act is amended by adding the following subsection:

Form

(7.1) The continuing power of attorney need not be in any particular form.

(5) Subsection 7 (1) of the Act, as re-enacted by subsection (1) of this section, applies to powers of attorney given before or after this

section comes into force.

5. Subsection 9 (3) of the Act is repealed and the following substituted:

Determining incapacity

(3) If the continuing power of attorney provides that it comes into effect when the grantor becomes incapable of managing property but does not provide a method for determining whether that situation has arisen, the power of attorney comes into

effect when,

(

a) the attorney is notified in the prescribed form by an assessor that the assessor has performed an assessmentof the grantor's capacity and has found that the grantor is incapable of managing property; or

(

b) the attorney is notified that a certificate of incapacity has been issued in respect of the grantor under the Mental Health Act .

6. (1) Subsection 10 (1) of the Act is repealed and the following substituted:

Execution

(1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness.

(2) Paragraph 3 of subsection 10 (2) of the Act is repealed.

(3) Subsection 10 (3) of the Act is repealed.

(4) Subsection 10 (4) of the Act is amended by striking out "subsections (1) to (3)" in the second line and substituting "subsections (1) and (2)".

(1) Clause 11 (

d) of the Act is repealed and the following substituted:

(

d) the grantor's spouse or partner and the relatives of the grantor who are known to the attorney, if,

(

i) the attorney is of the opinion that the grantor is incapable of managing property, and

(ii) the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

(2) Section 11 of the Act is amended by adding the following subsection:

Notice to other persons

(2) An attorney who resigns shall make reasonable efforts to give notice of the resignation to persons with whom the attorney previously dealt on behalf of the grantor and with whom further dealings are likely to be required on behalf of the

grantor.

8. (1) Clause 12 (1) (

a) of the Act is amended by inserting "of managing property" after "incapable" in the first and second lines.

(2) Clause 12 (1) (

b) of the Act is repealed.

Section 15 of the Act is amended by striking out "as defined in that Act" in the third and fourth lines.

Section 16 of the Act, as amended by the Statutes of Ontario, 1994,

chapter 27,

section 62, is repealed and the following substituted:

Assessment of capacity for statutory guardianship

(1) A person may request an assessor to perform an assessment of another person's capacity or of the person's own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory

guardian of property under this section.

Form of request

(2) A request under subsection (1) shall be in the prescribed form and, if the request is made in respect of another person, shall state that,

(

a) the person requesting the assessment has reason to believe that the other person may be incapable of managing property;

(

b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the existence of any attorney under a continuing power of attorney that gives the attorney authority over all of the other person's property; and

(

c) the person requesting the assessment has made reasonable inquiries and has no knowledge of any spouse, partner or relative of the other person who intends to make an application under

section 22 for the appointment of a guardian of property

for the other person.

Certificate of incapacity

(3) The assessor may issue a certificate of incapacity in the prescribed form if he or she finds that the person is incapable of managing property.

Copies

(4) The assessor shall ensure that copies of the certificate of incapacity are promptly given to the incapable person and to the Public Guardian and Trustee.

Statutory guardianship

(5) As soon as he or she receives the copy of the certificate, the Public Guardian and Trustee is the person's statutory guardian of property.

Information to be given

(6) After becoming a person's statutory guardian of property under subsection (5), the Public Guardian and Trustee shall ensure that the person is informed, in a manner that the Public Guardian and Trustee considers appropriate, that,

(

a) the Public Guardian and Trustee has become the person's statutory guardian of property; and

(

b) the person is entitled to apply to the Consent and Capacity Board for a review of the assessor's finding that the person is incapable of managing property.

Termination by attorney

16.1 A statutory guardianship of property is terminated if,

(

a) the incapable person gave a continuing power of attorney before the certificate of incapacity was issued;

(

b) the power of attorney gives the attorney authority over all of the incapable person's property;

(

c) the Public Guardian and Trustee receives a copy of the power of attorney and a written undertaking signed by the attorney to act in accordance with the power of attorney; and

(

d) if someone has replaced the Public Guardian and Trustee as the statutory guardian under

section 17, the statutory guardian receives a copy of the power of attorney and a written undertaking signed by the attorney to act in accordance with

the power of attorney.

Section 17 of the Act is repealed and the following substituted:

Application to replace P.G.T.

(1) Any of the following persons may apply to the Public Guardian and Trustee to replace the Public Guardian and Trustee as an incapable person's statutory guardian of property:

1. The incapable person's spouse or partner.

2. A relative of the incapable person.

3. The incapable person's attorney under a continuing power of attorney, if the power of attorney was made before the certificate of incapacity was issued and does not give the attorney authority over all of the incapable person's property.

4. A trust corporation within the meaning of the Loan and Trust Corporations Act , if the incapable person's spouse or partner consents in writing to the application.

Form of application

(2) The application shall be in the prescribed form.

Management plan

(3) The application shall be accompanied by a management plan for the property in the prescribed form.

Appointment

(4) Subject to subsection (6), the Public Guardian and Trustee shall appoint the applicant as the incapable person's statutory guardian of property if the Public Guardian and Trustee is satisfied that the applicant is suitable to manage the

property and that the management plan is appropriate.

Considerations

(5) The Public Guardian and Trustee shall consider the incapable person's current wishes, if they can be ascertained, and the closeness of the applicant's relationship to the person.

Security

(6) The Public Guardian and Trustee may refuse to appoint the applicant unless the applicant provides security, in a manner approved by the Public Guardian and Trustee, for an amount fixed by the Public Guardian and Trustee.

Same

(7) If security is required under subsection (6), the court may, on application, order that security be dispensed with, that security be provided in a manner not approved by the Public Guardian and Trustee, or that the amount of security be

reduced, and may make its order subject to conditions.

Certificate

(8) The Public Guardian and Trustee shall give the person appointed as statutory guardian of property a certificate certifying the appointment.

Effect of certificate

(9) The certificate is proof of the guardian's authority.

Conditions

(10) The Public Guardian and Trustee may make an appointment under this

section subject to conditions specified in the certificate.

Two or more guardians

(11) The Public Guardian and Trustee may certify that two or more applicants are joint statutory guardians of property, or that each of them is guardian for a specified part of the property.

Duty of guardian

(12) A person who replaces the Public Guardian and Trustee as statutory guardian of property shall, subject to any conditions imposed by the Public Guardian and Trustee or the court, manage the property in accordance with the management

plan.

12. (1) Subsection 18 (1) of the Act is amended by striking out "subsection 17 (10)" in the third and fourth lines and substituting "section 17".

(2) The French version of subsection 18 (1) of the Act is amended by striking out "au requérant" in the last line and substituting "à l'auteur de la demande".

(3) The French version of subsection 18 (2) of the Act is amended by striking out "le requérant" in the first line and substituting "l'auteur de la demande".

(4) The French version of subsection 18 (3) of the Act is amended by striking out "le requérant" in the second line and substituting "l'auteur de la demande".

(5) Subsection 18 (4) of the Act is repealed and the following substituted:

Criteria

(4) The court shall take into consideration the incapable person's current wishes, if they can be ascertained, and the closeness of the applicant's relationship to the person.

13. Sections 19 and 20 of the Act are repealed and the following substituted:

Death, etc., of statutory guardian

(1) If a statutory guardian of property dies, becomes incapable of managing property or gives notice to the Public Guardian and Trustee of his or her resignation, the Public Guardian and Trustee may elect to

become the incapable person's statutory guardian until another person is appointed as guardian of property under

section 17 or 22.

Delivery of accounts, etc.

(2) If a statutory guardian of property gives notice to the Public Guardian and Trustee of his or her resignation, the Public Guardian and Trustee may require the guardian to provide the Public Guardian and Trustee with his or her accounts in

respectof the guardianship, any property in his or her possession or control that is subject to the guardianship and any information requested by the Public Guardian and Trustee in respect of the guardianship.

Same

(3) Subsection (2) applies with necessary modifications to the personal representative of a statutory guardian of property who dies.

Termination of statutory guardianship

20. A statutory guardianship of property for a person is terminated if any of the following events occurs:

1. A guardian is appointed for the person by the court under

section 22.

2. Notice of the guardian's resignation is given by the guardian to,

i. the person, and

ii. the Public Guardian and Trustee, if the Public Guardian and Trustee is not the guardian.

3. In the case of a statutory guardianship created under

section 15,

i. notice is given to the guardian that the certificate of incapacity has been cancelled under

section 56 of the Mental Health Act ,

ii. notice is given to the guardian that the person has been discharged, unless the guardian has also received a notice of continuance issued under subsection 57 (2) of the Mental Health Act ,

iii. notice is given to the guardian from an assessor or from a physician who has authority to issue certificates of incapacity under the Mental Health Act stating that the assessor or physician has performed an assessment of the

person's capacity and is of the opinion that the person is capable of managing property, if the person has been discharged and a notice of continuance was issued under subsection 57 (2) of the Mental Health Act ,

iv. the time for appeal from a decision of the Consent and Capacity Board on an application under

section 20.2 of this Act or

section 60 of the Mental Health Act has expired, if the Boarddetermines that the person is capable of

managing property and no appeal is taken, or

v. an appeal from a decision of the Consent and Capacity Board on an application under

section 20.2 of this Act or

section 60 of the Mental Health Act is finally disposed of, if an appeal is taken and it is finally determined that the

person is capable of managing property.

4. In the case of a statutory guardianship created under

section 16,

i. notice is given to the guardian from an assessor stating that the assessor has performed an assessment of the person's capacity and is of the opinion that the person is capable of managing property,

ii. the time for appeal from a decision of the Consent and Capacity Board on an application under

section 20.2 has expired, if the Board determines that the person is capable of managing property and no appeal is taken, or

iii. an appeal from a decision of the Consent and Capacity Board on an application under

section 20.2 is finally disposed of, if an appeal is taken and it is finally determined that the person is capable of managing property.

Assessment

20.1

(1) A statutory guardian of property shall, on behalf of the incapable person, assist in arranging an assessment of the person's capacity by an assessor if the assessment is requested by the incapable person and,

(

a) in the case of a statutory guardianship created under

section 15, the person has been discharged from the psychiatric facility, a notice of continuance was issued under subsection 57 (2) of the Mental Health Act , and six months

have elapsed since the notice of continuance was issued; or

(

b) in the case of a statutory guardianship created under

section 16, six months have elapsed since the guardianship was created.

Limit

(2) Subsection (1) does not require a statutory guardian of property to assist in arranging an assessment if an assessment has been performed in the six months before the request.

Application for review of finding of incapacity

20.2

(1) A person who has a statutory guardian of property may apply to the Consent and Capacity Board for a review of a finding that the person is incapable of managing property,

(

a) in the case of a statutory guardianship created under

section 15, if the finding was made by an assessor, or by a physician who has authority to issue certificates of incapacity under the Mental Health Act , following an assessment

of capacity that was performed after a notice of continuance was issued in respect of the person under subsection 57 (2) of the Mental Health Act ; or

(

b) in the case of a statutory guardianship created under

section 16, if the finding,

(

i) resulted in the issuance of the certificate of incapacity under subsection 16 (3), or

(ii) was made by an assessor following an assessment of capacity that was performed after the creation of the statutory guardianship.

Limit

(2) A person may not make an application under this

section if he or she made an application under this

section in the previous six months.

Time for application

(3) An application under this

section must be made within six months after the finding of incapacity was made.

Parties

(4) The parties to the application are:

1. The applicant.

2. The assessor or physician who made the finding of incapacity.

3. Any other person whom the Board specifies.

Power of Board

(5) The Board may confirm the finding of incapacity or may determine that the person is capable of managing property, and in doing so may substitute its opinion for that of the assessor or physician.

Procedure

(6) Sections 71 to 78 of the Health Care Consent Act, 1995 apply with necessary modifications to an application under this section.

Termination by court

20.3

(1) The court may, on application by a person who is subject to a statutory guardianship of property, terminate the statutory guardianship.

Suspension

(2) In an application under this section, the court may suspend the powers of the statutory guardian.

Procedure

(3) Subsections 69 (0.1), (8) and (9) apply to an application under this

section and, except for the purpose of subsection 69 (9), subsection 69 (6) does not apply.

(1) The French version of subsection 24 (1) of the Act is amended by striking out "médicaux" in the second line and substituting "de santé".

(2) Subsection 24 (1) of the Act is amended by inserting "under

section 22" after "appointed" in the fourth line.

(3) Section 24 of the Act is amended by adding the following subsections:

Same

(2.1) Subsection (1) does not apply to a person if the court is satisfied that there is no other suitable person who is available and willing to be appointed.

P.G.T.

(2.2) The court shall not appoint the Public Guardian and Trustee as a guardian under

section 22 unless the application proposes the Public Guardian and Trustee as guardian and there is no other suitable person who is available and willing to

be appointed.

(4) Subsection 24 (3) of the Act is amended by striking out "form" in the fourth line and substituting "manner".

(5) Clause 24 (5) (

c) of the Act is repealed and the following substituted:

(

c) the closeness of the applicant's relationship to the incapable person.

Section 26 of the Act is repealed and the following substituted:

Variation or substitution

(1) The court may vary an order appointing a guardian of property under

section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed.

Who may make motion

(2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under

section 69 to be served with notice of that proceeding.

Motion to vary

(3) Subsection 69 (2), subsections 69 (5) to (9) and

section 77 apply, with necessary modifications, to a motion to vary an order.

Motion to substitute

(4) Subsection 69 (1), subsections 69 (5) to (9), subsection 70 (1) and

section 77 apply, with necessary modifications, to a motion to substitute another person as guardian.

16. (1) Subsection 27 (3) of the Act is repealed and the following substituted:

Extent of investigation

(3) In conducting an investigation under subsection (2), the Public Guardian and Trustee is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is

required under subsection (3.1).

Application for temporary guardianship

(3.1) If, as a result of the investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of managing property and that the prompt appointment of a temporary guardian of property is required to

prevent serious adverse effects, the Public Guardian and Trustee shall apply to the court for an order appointing him or her as temporary guardian of property.

(2) Subsection 27 (5) of the Act is repealed.

(3) Subsections 27 (8) and (9) of the Act are repealed and the following substituted:

Power of attorney

(8) The order may suspend the powers of any attorney under a continuing power of attorney during the term of the temporary guardianship.

Service of order

(9) If the order was made without notice, it shall be served on the person as soon as possible.

Termination, variation

(9.1) On motion by the Public Guardian and Trustee or by the person whose property is under guardianship, the court may terminate the guardianship, reduce or extend its term, or otherwise vary the order.

(4) Subsection 27 (10) of the Act is repealed and the following substituted:

Duty if no application made

(10) If the Public Guardian and Trustee conducts an investigation under this

section and decides not to make an application under subsection (3.1), the Public Guardian and Trustee shall, within three years,

(

a) destroy all information collected during the investigation and during any previous investigations in respect of the person under this section; and

(

b) notify the person who was alleged to be incapable that,

(

i) an allegation was made that the person was incapable of managing property and that serious adverse effects were occurring or might occur as a result,

(ii) the Public Guardian and Trustee investigated the allegation as required by this Act and decided not to make an application for temporary guardianship, and

(iii) the Public Guardian and Trustee has destroyed all information collected during the investigation.

Exception

(11) Subsection (10) does not apply if, within three years after the decision is made not to make an application under subsection (3.1),

(

a) another investigation is commenced in respect of the person under this

section or

section 62; or

(

b) the Public Guardian and Trustee becomes the person's guardian of property or guardian of the person.

(5) Subsection 27 (10) of the Act, as re-enacted by subsection (4) of this section, and subsection 27 (11) of the Act, as enacted by subsection (4) of this section, apply in respect ofinvestigations commenced under

section 27 of the Act

before or after this

section comes into force.

17. Sections 28 and 29 of the Act are repealed and the following substituted:

Termination

(1) The court may terminate a guardianship created under

section 22, on motion in the proceeding in which the guardian was appointed.

Who may make motion

(2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under

section 69 to be served with notice of that proceeding.

Suspension

29. In a motion to terminate a guardianship or temporary guardianship, the court may suspend the powers of the guardian or temporary guardian.

Section 30 of the Act is amended by striking out "applications" in the first and second lines and substituting "motions".

19. Subsection 31 (2) of the Act is repealed.

20. Subsection 32 (6) of the Act is repealed and the following substituted:

Accounts

(6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.

21. The Act is amended by adding the following sections:

Will

33.1 A guardian of property shall make reasonable efforts to determine,

(

a) whether the incapable person has a will; and

(

b) if the incapable person has a will, what the provisions of the will are.

Property in another person's control

33.2

(1) A person who has custody or control of property belonging to an incapable person shall,

(

a) provide the incapable person's guardian of property with any information requested by the guardian thatconcerns the property and that is known to the person who has custody or control of the property; and

(

b) deliver the property to the incapable person's guardian of property when required by the guardian.

Property includes will

(2) For the purposes of subsection (1), the property belonging to a person includes the person's will.

22. The Act is amended by adding the following section:

Disposition of property given by will

35.1

(1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person's will.

Application

(2) Subsection (1) does not apply in respect of a specific testamentary gift of money.

Permitted dispositions

(3) Despite subsection (1),

(

a) the guardian may dispose of the property if the disposition of that property is necessary to comply with the guardian's duties; or

(

b) the guardian may make a gift of the property to the person who would be entitled to it under the will, if the gift is authorized by

section 37.

Section 36 of the Act is repealed and the following substituted:

Proceeds of disposition

(1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property

on the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest.

If residue insufficient

(2) If the residue of the incapable person's estate is not sufficient to pay all entitlements under subsection (1) in full, the persons entitled under subsection (1) shall share the residue in amounts proportional to the amounts to which they

would otherwise have been entitled.

Will prevails

(3) Subsections (1) and (2) are subject to a contrary intention in the incapable person's will.

24. Subsection 37 (5) of the Act is repealed and the following substituted:

Increase, charitable gifts

(5) The court may authorize the guardian to make a charitable gift that does not comply with paragraph 6 of subsection (4),

(

a) on motion by the guardian in the proceeding in which the guardian was appointed, if the guardian was appointed under

section 22 or 27; or

(

b) on application, if the guardian is the statutory guardian of property.

(1) Section 38 of the Act is amended by striking out "sections 33 to 37" in the second line and substituting " sections 33, 33.1, 33.2, 34, 35.1, 36 and 37".

(2) Section 38 of the Act is amended by adding the following subsection:

Authority under subs. 37 (5)

(2) An attorney under a continuing power of attorney shall make an application to the court to obtain the authority referred to in subsection 37 (5).

Section 39 of the Act is repealed and the following substituted:

Directions from court

(1) If an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give directions on any question arising in the management of the property.

Form of request

(2) A request for directions shall be made,

(

a) on application, if no guardian of property has been appointed under

section 22 or 27; or

(

b) on motion in the proceeding in which the guardian was appointed, if a guardian of property has been appointed under

section 22 or 27.

Applicant; moving party

(3) An application or motion under this

section may be made by the incapable person's guardian of property, attorney under acontinuing power of attorney, dependant, guardian of the person or attorney under a power of attorney for personal care,

by the Public Guardian and Trustee, or by any other person with leave of the court.

Order

(4) The court may by order give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with this Act.

Variation of order

(5) The court may, on motion by a person referred to in subsection (3), vary the order.

27. Subsection 40 (3) of the Act is repealed and the following substituted:

Same

(3) The guardian or attorney may take an amount of compensation greater than the prescribed fee scale allows,

(

a) in the case where the Public Guardian and Trustee is not the guardian or attorney, if consent in writing is given by the Public Guardian and Trustee and by the incapable person's guardian of the person or attorney under a power of attorney

for personal care, if any; or

(

b) in the case where the Public Guardian and Trustee is the guardian or attorney, if the court approves.

Section 41 of the Act is repealed.

29. The French version of

section 45 of the Act is amended by striking out "médicaux" in the fifth line and substituting "de santé".

30. (1) Subsection 46 (2) of the Act is repealed and the following substituted:

P.G.T. may be attorney

(2) The power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is executed.

(2) The French version of clause 46 (3) (

a) of the Act is amended by striking out "médicaux" in the first line and substituting "de santé".

(3) Clause 46 (3) (

b) of the Act is amended by striking out "training, advocacy or support" in the first and second lines and substituting "training or support".

(4) Subsection 46 (5) of the Act is amended by inserting "of personal care" after "incapable" in the third line.

(5) Subsection 46 (8) of the Act is repealed and the following substituted:

Form

(8) The power of attorney need not be in any particular form.

(6) Subsections 46 (10), (11) and (12) of the Act are repealed.

31. (1) Subsection 48 (1) of the Act is repealed and the following substituted:

Execution

(1) A power of attorney for personal care shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness.

(2) Subsection 48 (3) of the Act is repealed.

(3) Subsection 48 (4) of the Act is amended by striking out "subsections (1) to (3)" in the second and third lines and substituting "subsections (1) and (2)".

(1) Sections 49, 50 and 51 of the Act are repealed and the following substituted:

When power of attorney effective

(1) A provision in a power of attorney for personal care that confers authority to make a decision concerning the grantor's personal care is effective to authorize the attorney to make the decision if,

(

a) the Health Care Consent Act, 1995 applies to the decision and that Act authorizes the attorney to make the decision; or

(

b) the Health Care Consent Act, 1995 does not apply to the decision and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any condition in the power of attorney that

prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed.

Method for confirmation

(2) A power of attorney that contains a condition described in clause (1) (

b) may specify the method for confirming whether the grantor is incapable of personal care and, if no method is specified, that fact may be confirmed by notice to the

attorneyin the prescribed form from an assessor stating that the assessor has performed an assessment of the grantor's capacity and has found that the grantor is incapable of personal care.

Instructions to assessor

(3) A power of attorney that contains a condition described in clause (1) (

b) may require an assessor who performs an assessment of the grantor's capacity to consider factors described in the power of attorney.

Application

(4) This

section applies to powers of attorney given before or after the coming into force of

section 32 of the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995 .

Special provisions

(1) A power of attorney for personal care may contain the provisions described in subsection (2), but none of the provisions is effective unless all of the following circumstances exist:

1. The power of attorney contains all the provisions described in subsection (2) and they are all in the prescribed form.

2. At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provisions described in subsection (2).

3. Within 30 days after the power of attorney was executed, an assessor made a statement in the prescribed form,

i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor's capacity,

ii. stating the assessor's opinion that, at the time of the assessment, the grantor was capable of personal care, and

iii. setting out the facts on which the opinion is based.

List of provisions

(2) The provisions referred to in subsection (1) are:

1. A provision that authorizes the attorney and other persons under the direction of the attorney to useforce that is necessary and reasonable in the circumstances,

i. to determine whether the grantor is incapable of making a decision to which the Health Care Consent Act, 1995 applies,

ii. to confirm, in accordance with subsection 49 (2), whether the grantor is incapable of personal care, if the power of attorney contains a condition described in clause 49 (1) (b), or

iii. to obtain an assessment of the grantor's capacity by an assessor in any other circumstances described in the power of attorney.

2. A provision that waives the grantor's right to revoke the power of attorney except in accordance with subsection (3).

3. A provision that authorizes the attorney and other persons under the direction of the attorney to use force that is necessary and reasonable in the circumstances to take the grantor to any place for care or treatment, except a place

specified in the power of attorney, to admit the grantor to that place and to detain and restrain the grantor in that place during the care or treatment.

4. A provision that waives the grantor's right to apply to the Consent and Capacity Board under sections 30, 48 and 63 of the Health Care Consent Act, 1995 for a review of a finding of incapacity that applies to a decision to which

that Act applies.

Revocation

(3) If a provision described in paragraph 2 of subsection (2) is contained in a power of attorney for personal care and all of the circumstances described in subsection (1) exist, the power of attorney may be revoked only if, within 30 days

before the revocation is executed, an assessor performed an assessment of the grantor's capacity and made a statement in the prescribed form,

(

a) indicating that, on a date specified in the statement, the assessor performed an assessment of the grantor's capacity;

(

b) stating the assessor's opinion that, at the time of the assessment, the grantor was capable of personal care; and

(

c) setting out the facts on which the opinion is based.

Use of force

(4) No action lies against an attorney, a police services board, a police officer or any other person arising from the use of force that is authorized by a provision described in subsection (2) that is effective under subsection (1).

Assessment

(1) The attorney under a power of attorney for personal care shall, on the request of and on behalf of the grantor, assist in arranging an assessment of the grantor's capacity by an assessor.

Limit

(2) Subsection (1) does not require an attorney to assist in arranging an assessment if an assessment has been performed in the six months before the request.

Transition

(2) If a power of attorney for personal care was accepted for registration under

section 50 of the Act before this

section comes into force,

(

a) the power of attorney shall be deemed to contain all the provisions described in subsection 50 (2) of the Act, as re-enacted by subsection (1); and

(

b) all the circumstances described in subsection 50 (1) of the Act, as re-enacted by subsection (1), shall be deemed to exist.

(1) Clause 52 (

d) of the Act is repealed and the following substituted:

(

d) the grantor's spouse or partner and the relatives of the grantor who are known to the attorney, if the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

(2) Section 52 of the Act is amended by adding the following subsection:

Notice to other persons

(2) An attorney who resigns shall make reasonable efforts to give notice of the resignation to persons with whom the attorney previously dealt on behalf of the grantor and with whom further dealings are likely to be required on behalf of the

grantor.

34. (1) Clause 53 (1) (

a) of the Act is amended by inserting "of personal care" after "incapable" in the first and second lines.

(2) Clause 53 (1) (

c) of the Act is amended by striking out "unless the previous power of attorney has been validated" in the last two lines.

(3) Subsection 53 (3) of the Act is repealed.

Section 54 of the Act is repealed.

(1) The French version of subsection 57 (1) of the Act is amended by striking out "médicaux" in the second line and substituting "de santé".

(2) Subsection 57 (1) of the Act is amended by inserting "under

section 55 as" after "appointed" in the fourth line.

(3) Section 57 of the Act is amended by adding the following subsections:

Exception

(2.1) Subsection (1) does not apply to a person if the court is satisfied that there is no other suitable person who is available and willing to be appointed.

P.G.T.

(2.2) The court shall not appoint the Public Guardian and Trustee as a guardian under

section 55 unless the application proposes the Public Guardian and Trustee as guardian and there is no other suitable person who is available and willing to

be appointed.

(4) The French version of clause 57 (3) (

c) of the Act is amended by striking out "l'étroitesse" in the first line and substituting "le caractère étroit".

37. (1) Clauses 59 (2) (

d) and (

e) of the Act are repealed and the following substituted:

(

d) have access to personal information, including health information and records, to which the person could have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that

relates to the person's property or to the guardian's status or powers;

(

e) on behalf of the person, make any decision to which the Health Care Consent Act, 1995 applies;

(e.1) make decisions about the person's health care, nutrition and hygiene.

(2) Clause 59 (4) (

a) of the Act is repealed.

(3) Subsection 59 (5) of the Act is amended by striking out "clause (4) (

a) or (b)" in the second and third lines and substituting "subsection (4)".

38. Subsection 60 (3) of the Act is repealed and the following substituted:

Powers of guardian

(3) Under an order for partial guardianship, the guardian may exercise those of the powers set out in subsections 59 (2), (3), (4) and (5) that are specified in the order.

Section 61 of the Act is repealed and the following substituted:

Variation or substitution

(1) The court may vary an order appointing a guardian of the person under

section 55 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed.

Who may make motion

(2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under

section 69 to be served with notice of that proceeding.

Motion to vary

(3) Subsections 69 (4) to (9) and

section 77 apply, with necessary modifications, to a motion to vary an order.

Motion to substitute

(4) Subsection 69 (3), subsections 69 (5) to (9), subsection 70 (2) and

section 77 apply, with necessary modifications, to a motion to substitute another person as guardian.

40. (1) Subsection 62 (3) of the Act is repealed and the following substituted:

Extent of investigation

(3) In conducting an investigation under subsection (2), the Public Guardian and Trustee is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is

required under subsection (3.1).

Application for temporary guardianship

(3.1) If, as a result of the investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of personal care and that the prompt appointment of a temporary guardian of the person is required to

prevent serious adverse effects, the Public Guardian and Trusteeshall apply to the court for an order appointing him or her as the incapable person's temporary guardian of the person.

(3) Subsection 62 (5) of the Act is repealed.

(4) Subsection 62 (7) of the Act is repealed and the following substituted:

Duration of appointment

(7) The appointment is valid for a period fixed by the court that does not exceed 90 days.

(5) Subsection 62 (9) of the Act is repealed and the following substituted:

Power of attorney

(9) The order may suspend the powers of any attorney under a power of attorney for personal care during the term of the temporary guardianship.

Service of order

(9.1) If the order was made without notice, it shall be served on the person as soon as possible.

(6) Subsections 62 (11) and (12) of the Act are repealed and the following substituted:

Termination, variation

(11) On motion by the Public Guardian and Trustee or by the person under guardianship, the court may terminate the guardianship, reduce or extend its term, or otherwise vary the order.

Duty if no application made

(12) If the Public Guardian and Trustee conducts an investigation under this

section and decides not to make an application under subsection (3.1), the Public Guardian and Trustee shall, within three years,

(

a) destroy all information collected during the investigation and during any previous investigations in respect of the person under this section; and

(

b) notify the person who was alleged to be incapable that,

(

i) an allegation was made that the person was incapable of personal care and that seriousadverse effects were occurring or might occur as a result,

(ii) the Public Guardian and Trustee investigated the allegation as required by this Act and decided not to make an application for temporary guardianship, and

(iii) the Public Guardian and Trustee has destroyed all information collected during the investigation.

Exception

(13) Subsection (12) does not apply if, within three years after the decision is made not to make an application under subsection (3.1),

(

a) another investigation is commenced in respect of the person under this

section or

section 27; or

(

b) the Public Guardian and Trustee becomes the person's guardian of property or guardian of the person.

(7) Subsection 62 (12) of the Act, as re-enacted by subsection (6) of this section, and subsection 62 (13) of the Act, as enacted by subsection (6) of this section, apply in respect of investigations commenced under

section 62 of the

Act before or after this

section comes into force.

41. Sections 63 and 64 of the Act are repealed and the following substituted:

Termination

(1) The court may terminate a guardianship created under

section 55, on motion in the proceeding in which the guardian was appointed.

Who may make motion

(2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under

section 69 to be served with notice of that proceeding.

Suspension

64. In a motion to terminate a guardianship or temporary guardianship, the court may suspend the powers of the guardian or temporary guardian.

Section 65 of the Act is amended by striking out "applications" in the first and second lines and substituting "motions".

(1) Section 66 of the Act is amended by adding the following subsection:

Decisions under Health Care Consent Act, 1995

(2.1) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1995 applies in accordance with that Act.

(2) Subsection 66 (3) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Other decisions

(3) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1995 does not apply in accordance with the following principles:

. . . . .

(3) Subsection 66 (4) of the Act is repealed and the following substituted:

Best interests

(4) In deciding what the person's best interests are for the purpose of subsection (3), the guardian shall take into consideration,

(

a) the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;

(

b) the person's current wishes, if they can be ascertained; and

(

c) the following factors:

1. Whether the guardian's decision is likely to,

i. improve the quality of the person's life,

ii. prevent the quality of the person's life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the person's life is likely to deteriorate.

2. Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.

Records of decisions

(4.1) The guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person's behalf.

(4) Subsection 66 (10) of the Act is amended by striking out "and" at the end of clause (

a) and by striking out clause (b).

(5) Subsection 66 (12) of the Act is repealed and the following substituted:

Electric shock as aversive conditioning

(12) The guardian shall not use electric shock as aversive conditioning and shall not give consent on the person's behalf to the use of electric shock as aversive conditioning unless the consent is given to a treatment in accordance with the

Health Care Consent Act, 1995 .

(6) Subsections 66 (17) and (18) of the Act are repealed.

44. Sections 67 and 68 of the Act are repealed and the following substituted:

Duties of attorney

Section 66, except subsections 66 (15) and (16), applies with necessary modifications to an attorney who acts under a power of attorney for personal care.

Directions from court

(1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of

attorney.

Form of request

(2) A request for directions shall be made,

(

a) on application, if no guardian of the person has been appointed under

section 55 or 62; or

(

b) on motion in the proceeding in which the guardian was appointed, if a guardian of the person has been appointed under

section 55 or 62.

Applicant; moving party

(3) An application or motion under this

section may be made by the incapable person's guardian of the person, attorney under a power of attorney for personal care, dependant, guardian of property or attorney under a continuing power of

attorney, by the Public Guardian and Trustee, or by any other person with leave of the court.

Order

(4) The court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.

Variation of order

(5) The court may, on motion by a person referred to in subsection (3), vary the order.

(1) Section 69 of the Act is amended by adding the following subsection:

Service of notice, application to terminate statutory guardianship of property

(0.1) Notice of an application to terminate a statutory guardianship of property shall be served on the following persons:

1. The statutory guardian of property.

2. The applicant's guardian of the person, if known.

3. The applicant's attorney for personal care, if known.

4. The Public Guardian and Trustee, if he or she is not the statutory guardian.

(2) Subsection 69 (2) of the Act is amended by striking out "an application" in the first line and substituting "a motion".

(3) Subsection 69 (4) of the Act is amended by striking out "an application" in the first line and substituting "a motion".

(4) Subsection 69 (5) of the Act is amended by adding at the end "or moving party".

(5) Paragraph 2 of subsection 69 (6) of the Act is repealed and the following substituted:

2. The person's children who are at least 18 years old, in the case of an application or motion under

Part I, or at least 16 years old, in the case of an application or motion under

Part II.

(6) Subsections 69 (8), (9), (10) and (11) of the Act are repealed and the following substituted:

Parties

(8) The parties to the application or motion are the applicant or moving party and the persons served under subsection (0.1), (1), (2), (3) or (4), as the case may be.

Adding parties

(9) Any of the following persons is entitled to be added as a party at any stage in the application or motion:

1. A person referred to in paragraph 2 or 3 of subsection (0.1), paragraph 2, 3 or 4 of subsection (1), paragraph 2 or 3 of subsection (2), paragraph 2, 3 or 4 of subsection (3) or paragraph 2 or 3 of subsection (4), as the case may be, who was

not served with the notice of application or notice of motion.

2. A person referred to in subsection (6), whether or not served with the notice of application or notice of motion.

46. (1) Clause 70 (1) (

c) of the Act is repealed and the following substituted:

(

c) a statement signed by the applicant,

(

i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or

(ii) if it was not possible to give the person alleged to be incapable the information referred to in subclause (i), describing why it was not possible.

(2) Clause 70 (2) (

c) of the Act is repealed and the following substituted:

(

c) a statement signed by the applicant,

(

i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or

(ii) if it was not possible to give the person alleged to be incapable the information referred to in subclause (i), describing why it was not possible.

47. Subsection 71 (2) of the Act is amended by,

(

a) striking out "An application" in the first line and substituting "A motion"; and

(

b) striking out "notice of application was issued" in the last two lines and substituting "notice of motion was filed with the court".

48. Subsection 72 (4) of the Act is repealed and the following substituted:

Assessment

(4) A statement made by an assessor may be used for the purpose of subsection (1) only if,

(

a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(

b) the assessment was performed during the six months before the notice of application was issued.

49. (1) Subsection 73 (1) of the Act is amended by,

(

a) striking out "the applicant wishes an application" in the first two lines and substituting "the moving party wishes a motion"; and

(

b) striking out "notice of application was issued" in the last two lines and substituting "notice of motion was filed with the court".

(2) Subsection 73 (3) of the Act is repealed and the following substituted:

Assessment

(3) A statement made by an assessor may be used for the purpose of subsection (1) only if,

(

a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(

b) the assessment was performed during the six months before the notice of motion was filed with the court.

50. (1) Clause 74 (4) (

a) of the Act is repealed.

(2) Section 74 of the Act is amended by adding the following subsection:

Assessment

(5) A statement may be used for the purpose of subsection (1) only if,

(

a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(

b) the assessment was performed during the six months before the notice of application was issued.

51. (1) Subsection 75 (1) of the Act is amended by striking out "the applicant wishes an application" in the first two lines and substituting "the moving party wishes a motion", and by striking out "application" in the fourth line and

substituting "motion".

(2) Subsection 75 (3) of the Act is repealed and the following substituted:

Assessment

(3) A statement may be used for the purpose of subsection (1) only if,

(

a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(

b) the assessment was performed during the six months before the notice of motion was filed with the court.

Section 76 of the Act is repealed.

Section 77 of the Act is repealed and the following substituted:

Summary disposition

(1) In an application to appoint a guardian of property or guardian of the person or a motion to terminate a guardianship of property or guardianship of the person, the court may, in the circumstances described in

subsection (2), make an order without anyone appearing before it and without holding a hearing.

Same

(2) The registrar of the court shall submit the notice of application or notice of motion, and the accompanying documents, to a judge of the court if,

(

a) in the case of an application, the applicant certifies in writing that,

(

i) no person has delivered a notice of appearance,

(ii) the documents required by this Part accompany the application,

(iii) in the case of an application to appoint a guardian of property, at least one of the statements referred to in

section 72 indicates that its maker is of the opinion that it is necessary for decisions to be made on the person's behalf by a

person who is authorized to do so, and

(iv) in the case of an application to appoint a guardian of the person, at least one of the statements referred to in

section 74 indicates that its maker is of the opinion that the person needs decisions to be made on his or her behalf by a

person who is authorized to do so;

(

b) in the case of a motion, the moving party certifies in writing that,

(

i) the documents required by this Part accompany the motion, and

(ii) every person entitled to be served with the notice of motion has filed with the court a statement indicating that they do not intend to appear at the hearing of the motion.

Order

(3) On considering the application or motion, the judge may,

(

a) grant the relief sought;

(

b) require the parties or their counsel to adduce additional evidence or make representations; or

(

c) order that the application or motion proceed to a hearing or order the trial of an issue, and give such directions as the judge considers just.

Section 78 of the Act is repealed and the following substituted:

Right to refuse assessment

(1) An assessor shall not perform an assessment of a person's capacity if the person refuses to be assessed.

Information to be provided

(2) Before performing an assessment of capacity, the assessor shall explain to the person to be assessed,

(

a) the purpose of the assessment;

(

b) the significance and effect of a finding of capacity or incapacity; and

(

c) the person's right to refuse to be assessed.

Application

(3) Subsections (1) and (2) do not apply to an assessment if,

(

a) the assessment was ordered by the court under

section 79; or

(

b) a power of attorney for personal care contains a provision that authorizes the use of force to permit the assessment and the provision is effective under subsection 50 (1).

Notice of findings

(4) An assessor who performs an assessment of a person's capacity shall give the person written notice of the assessor's findings.

55. Subsection 80 (2) of the Act is repealed.

56. Subsection 81 (2) of the Act is repealed.

57. Subsection 83 (1) of the Act is amended by striking out "or" at the end of clause (g), by adding "or" at the end of clause (h), and by adding the following clause:

(

i) any other person or class of persons designated by the regulations.

58. Sections 87 and 88 of the Act are repealed and the following substituted:

Volunteers

(1) The Public Guardian and Trustee may appoint volunteers to provide advice and assistance under this Act.

Protection from liability

(2) No proceeding for damages shall be instituted against a volunteer appointed under this

section for any act done in good faith in the execution or intended execution of the volunteer's powers and duties or for any alleged neglect or default

in the execution in good faith of the volunteer's powers or duties.

Same

(3) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act , subsection (2) does not relieve the Crown of any liability to which the Crown would otherwise be subject.

Mediation

88. The Public Guardian and Trustee may mediate,

(

a) a dispute that arises between a person's guardian of property or attorney under a continuing power of attorney and the person's guardian of the person or attorney for personal care, if the dispute arises in the performance of their

duties;

(

b) a dispute that arises between joint attorneys under a person's continuing power of attorney or power of attorney for personal care, if the dispute arises in the performance of their duties; or

(

c) a dispute that arises between joint guardians of property or joint guardians of the person, if the dispute arises in the performance of their duties.

59. (1) Clause 89 (1) (

c) of the Act is repealed.

(2) Subsection 89 (3) of the Act is amended by adding "or" at the end of clause (a), by striking out "or" at the end of clause (

b) and by striking out clause (c).

(1) Clause 90 (

c) of the Act is repealed and the following substituted:

(

c) prescribing a fee scale for the compensation of guardians of property and attorneys under continuing powers of attorney, including annual percentage charges on revenue and on capital;

(c.1) prescribing circumstances in which a person's guardian of the person or attorney under a power of attorney for personal care may be compensated from the person's property for services performed as guardian or attorney, and prescribing the

amount of the compensation or a method for determining the amount of the compensation;

(c.2) governing the keeping of accounts and other records by attorneys under continuing powers of attorney, attorneys under powers of attorney for personal care, guardians of property and guardians of the person, and requiring them to provide

information from the records to persons specified by the regulations;

(c.3) establishing a public record of information relating to guardians of property, guardians of the person, attorneys under continuing powers of attorney or attorneys under powers of attorney for personal care, prescribing the contents of the

record, governing themaintenance of the record, requiring persons to provide information for the purpose of the record and governing the disclosure of information from the record.

(2) Clause 90 (

d) of the Act is amended by adding at the end "or specific types of assessments of capacity".

(3) Section 90 of the Act is amended by adding the following clauses:

(e.1) prescribing standards for the performance of assessments of capacity by assessors;

(e.2) regulating the fees that may be charged by assessors;

(e.3) for the purpose of sections 38 and 39 of the Freedom of Information and Protection of Privacy Act , authorizing an institution as defined in that Act to collect personal information, directly or indirectly, for a purpose relating

to this Act;

(e.4) authorizing a member of a College as defined in the Regulated Health Professions Act, 1991 or a person who provides health care or residential, social, training or support services, subject to the Mental Health Act and

the Long-Term Care Act, 1994 but despite any other Act or the regulations under any other Act, to disclose personal information about a person,

(

i) to an assessor, if the information is relevant to an assessment of capacity being performed by the assessor,

(ii) to a person who has made or has stated in writing an intention to make an application to appoint a guardian of property or guardian of the person, if the information is relevant to the application, or

(iii) to the Public Guardian and Trustee, if the information is relevant to the making of an allegation described in subsection 27 (2) or 62 (2) or to an investigation being conducted under

section 27 or 62;

(e.5) governing the use and disclosure of personal information obtained under the authority of a regulation made under clause (e.4);

(e.6) designating persons or classes of persons from whom the Public Guardian and Trustee may obtain access to records under clause 83 (1) (i).

PART IV

AMENDMENTS TO OTHER ACTS

Charitable Institutions Act

(1) Section 1 of the Charitable Institutions Act , as amended by the Statutes of Ontario, 1993,

chapter 2,

section 1, and 1994,

chapter 26,

section 70, is further amended by adding the following

definitions:

"mentally incapable" means unable to understand the information that is relevant to making a decision concerning the subject-matter or unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision;

("mentalement incapable")

"substitute decision-maker", in relation to a resident of an approved charitable home for the aged, means the person who would be authorized under the Health Care Consent Act, 1995 to make a decision on behalf of the resident

concerning his or her personal assistance plan, if the resident were incapable with respect to the personal assistance plan under that Act. ("mandataire spécial")

(2) Clause 9.15 (

d) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, is repealed and the following substituted:

(

d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,

(

i) the resident,

(ii) if the resident is mentally incapable, his or her substitute decision-maker, and

(iii) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct; and

. . . . .

(3) Subsection 9.17 (1) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, is amended by striking out "to each resident of the home, to the person who is lawfully authorized to make a decision on behalf of

the resident concerning the resident's personal care and to such other person as they may direct" in the third, fourth, fifth, sixth, seventh and eighth lines and substituting "to the persons mentioned in subsection (1.1)".

(4) Clause 9.17 (1) (

c) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, is repealed and the following substituted:

(

c) stating that the persons mentioned in subsection (1.1) may request access to and an explanation of the resident's plan of care, and specifying the person to whom the request must be made.

(5) Section 9.17 of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, is amended by adding the following subsection:

Same

(1.1) The notice must be given to,

(

a) each resident of the approved charitable home for the aged;

(

b) if the resident is mentally incapable, his or her substitute decision-maker; and

(

c) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct.

(6) Paragraph 2 of subsection 9.19 (2) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, is repealed and the following substituted:

2. If a resident of the home is mentally incapable, his or her substitute decision-maker.

(7) Paragraphs 2 and 3 of subsection 9.19 (3) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, are repealed and the following substituted:

2. If a resident of the home is mentally incapable, his or her substitute decision-maker.

3. A person selected by the resident or, if the resident is mentally incapable, by his or her substitute decision-maker.

(8) Subsection 9.20 (1) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 6, is repealed and the following substituted:

Meeting

(1) Unless an approved charitable home for the aged has a residents' council, the approved corporation maintaining and operating the home shall, at least once in each year, convene ameeting of the following persons to advise them of their right

to establish a residents' council:

1. The residents of the home.

2. In the case of residents who are mentally incapable, their substitute decision-makers.

(9) Subsection 12 (1) of the Act, as amended by the Statutes of Ontario, 1993,

chapter 2,

section 10 and 1994,

chapter 26,

section 70, is further amended by adding the following clauses:

(b.8) prescribing and governing the obligations of placement co-ordinators and others in relation to ensuring that persons seeking admission to an approved charitable home for the aged are provided with information about their rights and

assistance in exercising their rights, including prescribing,

(

i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(

v) the manner and time in which the information or assistance must be given;

(b.9) governing the transfer of information among those involved in the process of providing persons with information about their rights;

(b.10) regulating the timing of the authorization of a person's admission to an approved charitable home for the aged, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention

to exercise, any of his or her rights.

Child and Family Services Act

62. The definition of "nearest relative" in subsection 4 (1) of the Child and Family Services Act , as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 3, is repealed and the following substituted:

"nearest relative", when used in reference to a person who is less than 16 years old, means the person with lawful custody of him or her, and when used in reference to a person who is 16 years old or more, means the person who would be

authorized to give or refuse consent to a treatment on his or her behalf under the Health Care Consent Act, 1995 if he or she were incapable with respect to the treatment under that Act. ("parent le plus proche")

Children's Law Reform Act

63. Subsection 10 (4) of the Children's Law Reform Act , as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 4, is repealed and the following substituted:

Consent to procedure

(4) The Health Care Consent Act, 1995 applies to the blood test as if it were treatment under that Act.

Consent and Capacity Statute Law Amendment Act, 1992

64. (1) Subsections 7 (3) and (4) of the Consent and Capacity Statute Law Amendment Act, 1992 are repealed.

(2) Subsections 20 (59) and (60) of the Act are repealed.

(3) Section 21 of the Act is amended by adding the following subsections:

Motion to reinstate guardianship

(7) The Ontario Court (General Division) may reinstate a guardianship that has terminated under subsection (5) or (6), on motion by the guardian in the proceeding in which the guardian was appointed as committee.

Notice

(8) Notice of the motion shall be served on,

(

a) the person who was subject to the guardianship that has terminated under subsection (5) or (6);

(

b) any person appointed after April 2, 1995 as the guardian of property or guardian of the person for the person who was subject to the guardianship, if known; and

(

c) the Public Guardian and Trustee.

Parties

(9) The parties to the motion are the moving party and the persons served under subsection (8).

Added parties

(10) A person referred to in clause (8) (

b) who was not served with the notice of motion is entitled to be added as a party at any stage in the motion.

Things done after termination

(11) In a motion under subsection (7), the court may order that anything done by the guardian after the guardianship terminated shall be deemed to have been done with full authority as if the guardianship had continued in existence,

subject to any terms or conditions that the court considers just.

Education Act

65. Paragraph 25 of subsection 171 (1) of the Education Act , as amended by the Statutes of Ontario, 1992,

chapter 32,

section 9, is further amended by striking out " Consent to Treatment Act, 1992 " in the amendment of

1992 and substituting " Health Care Consent Act, 1995 ".

Freedom of Information and Protection of Privacy Act

66. Clause 66 (

b) of the Freedom of Information and Protection of Privacy Act , as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 13, is amended by striking out "validated" in the third line.

Health Protection and Promotion Act

67. (1) Subsection 22 (5.1) of the Health Protection and Promotion Act , as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 16, is repealed and the following substituted:

Health Care Consent Act, 1995

(5.1) The Health Care Consent Act, 1995 does not apply to,

(

a) a physician's examination of a person pursuant to an order under this

section requiring the person to submit to an examination by a physician;

(

b) a physician's care and treatment of a person pursuant to an order under this

section requiring the person to place himself or herself under the care and treatment of a physician.

(2) Section 33 of the Act is amended by adding the following subsection:

Health Care Consent Act, 1995

(2) The Health Care Consent Act, 1995 does not apply to the requirements prescribed by the regulations in respect of communicable diseases of the eyes of the new-born child.

(3) Subsection 35 (7.1) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 16, is repealed and the following substituted:

Health Care Consent Act, 1995

(7.1) The Health Care Consent Act, 1995 does not apply to,

(

a) an examination of a person to ascertain whether he or she is infected with an agent of a virulent disease, pursuant to an order made under this section;

(

b) treatment of a person for a virulent disease, pursuant to an order made under this section.

(4) Subsection 38 (2) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 16, is repealed and the following substituted:

Duty to inform

(2) If consent to the administration of an immunizing agent has been given in accordance with the Health Care Consent Act, 1995 , the physician or other person authorized to administer the immunizing agent shall cause the person who has

given consent to be informed of the importance of reporting to a physician forthwith any reaction that might be a reportable event.

(5) Section 102 of the Act is amended by adding the following subsection:

Health Care Consent Act, 1995

(3) The Health Care Consent Act, 1995 does not apply to a treatment that is required by an order made under this section.

Homes for the Aged and Rest Homes Act

(1) Section 1 of the Homes for the Aged and Rest Homes Act , as amended by the Statutes of Ontario, 1993,

chapter 2,

section 13 and 1994,

chapter 26,

section 73, is further amended by adding the following

definitions:

"mentally incapable" means unable to understand the information that is relevant to making a decision concerning the subject-matter or unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision; ("mentalement

incapable")

"substitute decision-maker", in relation to a resident, means the person who would be authorized under the Health Care Consent Act, 1995 to make a decision on behalf of the resident concerning his or her personal assistance plan, if

the resident were incapable with respect to the personal assistance plan under that Act.

("mandataire spécial")

(2) Clause 19.5 (

d) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 15, is repealed and the following substituted:

(

d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,

(

i) the resident,

(ii) if the resident is mentally incapable, his or her substitute decision-maker, and

(iii) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct; and

. . . . .

(3) Subsection 30.4 (1) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 20, is amended by striking out "to each resident of the home or joint home, as the case may be, to the person who is lawfully authorized

to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct" in the fourth, fifth, sixth, seventh, eighth, ninth and tenth lines and substituting "to the persons mentioned in

subsection (1.1)".

(4) Clause 30.4 (1) (

c) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 20, is repealed and the following substituted:

(

c) stating that the persons mentioned in subsection (1.1) may request access to and an explanation of the resident's plan of care, and specifying the person to whom the request must be made.

(5) Section 30.4 of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 20, is amended by adding the following subsection:

Same

(1.1) The notice must be given to,

(

a) each resident of the home or joint home, as the case may be;

(

b) if the resident is mentally incapable, his or her substitute decision-maker; and

(

c) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct.

(6) Paragraph 2 of subsection 30.6 (2) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 20, is repealed and the following substituted:

2. If a resident of the home or joint home, as the case may be, is mentally incapable, his or her substitute decision-maker.

(7) Paragraphs 2 and 3 of subsection 30.6 (3) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 20, are repealed and the following substituted:

2. If a resident of the home or joint home, as the case may be, is mentally incapable, his or her substitute decision-maker.

3. A person selected by the resident or, if the resident is mentally incapable, by his or her substitute decision-maker.

(8) Subsection 30.7 (1) of the Act, as enacted by the Statutes of Ontario, 1993,

chapter 2,

section 20, is repealed and the following substituted:

Meeting

(1) Unless a home or joint home has a residents' council, the municipality maintaining and operating the home, the municipalities maintaining and operating the joint home or the board of management of the home, as the case may be, shall, at

least once in each year, convene a meeting of the following persons to advise them of their right to establish a residents' council:

1. The residents of the home or joint home, as the case may be.

2. In the case of residents who are mentally incapable, their substitute decision-makers.

(9) Subsection 31 (1) of the Act, as amended by the Statutes of Ontario, 1993,

chapter 2,

section 21, is further amended by adding the following paragraphs:

35.1 prescribing and governing the obligations of placement co-ordinators and others in relation to ensuring that persons seeking admission to a home or joint home are provided with information about their rights and assistance in exercising

their rights, including prescribing,

(

i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(

v) the manner and time in which the information or assistance must be given;

35.2 governing the transfer of information among those involved in the process of providing persons with information about their rights;

35.3 regulating the timing of the authorization of a person's admission to a home or joint home, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention to exercise, any of

his or her rights.

Liquor Licence Act

(1) Section 36 of the Liquor Licence Act is amended by adding the following subsection:

Exception

(3) Subsection (2) does not apply if consent to the examination or treatment is required under the Health Care Consent Act, 1995 .

(2) Section 37 of the Act is amended by adding the following subsection:

Consent to treatment

(2.1) An order under subsection (1) does not authorize the administration of a treatment without consent, if consent to the treatment is required under the Health Care Consent Act, 1995 .

Loan and Trust Corporations Act

(1) The definition of "trust corporation" in

section 1 of the Loan and Trust Corporations Act , as amended by the Statutes of Ontario, 1992,

chapter 32,

section 19, is repealed and the following substituted:

"trust corporation" means a body corporate incorporated or operated,

(

a) for the purpose of offering its services to the public to act as trustee, bailee, agent, executor, administrator, receiver, liquidator, assignee, guardian of property or attorney under a power of attorney for property, and

(

b) for the purpose of receiving deposits from the public and of lending or investing such deposits. ("société de fiducie")

(2) Subclause 213 (2) (a) (ii) of the Act is repealed and the following substituted:

(ii) guardian of property; or

. . . . .

Long-Term Care Act, 1994

71. (1) Subsection 2 (1) of the Long-Term Care Act, 1994 is amended by adding the following

definitions:

"mentally capable" means able to understand the information that is relevant to making a decision concerning the subject-matter and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision, and "mentally

incapable" means not mentally capable; ("mentalement capable", "mentalement incapable")

"substitute decision-maker", in relation to a person to whom a record, information or a decision relates, means the person who would be authorized under the Health Care Consent Act, 1995 to give or refuse consent to a treatment on

behalf of the person to whom the record, information or decision relates, if that person were incapable with respect to the treatment under that Act. ("mandataire spécial")

(2) The French version of subsection 22 (5) of the Act is amended by striking out "médicaux" in the second-last line and substituting "de santé".

(3) Subclause 32 (2) (a) (ii) of the Act is repealed and the following substituted:

(ii) if the person to whom the record relates is mentally incapable, with the consent of his or her substitute decision-maker, or

. . . . .

(4) The French version of clause 32 (2) (

c) of the Act is amended by striking out "médicaux" in the third line and substituting "de santé".

(5) Clause 32 (2) (

d) of the Act is repealed and the following substituted:

(

d) a person involved in the direct health care, in a health facility, of the person to whom the record relates, without consent, if the delay required to obtain consent would result in the person to whom the record relates experiencing severe

suffering, would prolong the suffering that he or she is already apparently experiencing or would put him or her at risk of sustaining serious bodily harm.

(6) Subsection 32 (2) of the Act is amended by adding the following clauses:

(g.1) a health practitioner, as defined in the Health Care Consent Act, 1995 , who is determining whether the person to whom the record relates is capable with respect to a treatment for the purpose of that Act;

(g.2) an evaluator, as defined in the Health Care Consent Act, 1995 , who is determining whether the person to whom the record relates is capable with respect to admission to a care facility, or with respect to a personal assistance

plan, for the purpose of that Act;

(g.3) an assessor, as defined in the Substitute Decisions Act, 1992 , who is performing an assessment of the capacity of the person to whom the record relates for the purpose of that Act.

(7) Clause 32 (2) (

h) of the Act is repealed and the following substituted:

(

h) a person who is entitled to have access to the record under

section 83 of the Substitute Decisions Act, 1992 .

(8) Subsection 32 (3) of the Act is amended by striking out "or to a person who is entitled to have access to the recordunder

section 25 of the Advocacy Act, 1992 " in the third, fourth and fifth lines.

(9) Section 32 of the Act is amended by adding the following subsection:

Alleging incapacity to P.G.T.

(5) This

section does not prohibit a person from making either of the following allegations to the Public Guardian and Trustee and informing the Public Guardian and Trustee of the grounds for the allegation:

1. An allegation, for the purpose of

section 27 of the Substitute Decisions Act, 1992 , that a person to whom a personal record relates is incapable of managing property and that serious adverse effects are occurring or may occur as a

result.

2. An allegation, for the purpose of

section 62 of the Substitute Decisions Act, 1992 , that a person to whom a personal record relates is incapable of personal care and that serious adverse effects are occurring or may occur as a

result.

(10) Subclause 35 (2) (a) (ii) of the Act is repealed and the following substituted:

(ii) if the person to whom the information relates is mentally incapable, by his or her substitute decision-maker; or

. . . . .

(11) Subclause 35 (2) (b) (ii) of the Act is repealed and the following substituted:

(ii) if the person to whom the information relates is mentally incapable, on notice to his or her substitute decision-maker.

(12) Subsection 36 (1) of the Act is repealed and the following substituted:

Definition

(1) In this section,

"Review Board" means the Consent and Capacity Board continued under the Health Care Consent Act, 1995 .

(13) Subsection 36 (10) of the Act, as re-enacted by the Statutes of Ontario, 1994,

chapter 26,

section 36, is repealed and the following substituted:

Procedure

(10) Section 71 of the Health Care Consent Act, 1995 applies to an application under this section, with necessary modifications.

Same

(10.1) Sections 72 to 78 of the Health Care Consent Act, 1995 and the Statutory Powers Procedure Act do not apply to an application under this section.

(14) Paragraphs 2 and 3 of subsection 36 (17) of the Act are repealed and the following substituted:

2. If the person to whom the record relates is mentally incapable, his or her substitute decision-maker.

(15) Subsection 36 (18) of the Act is amended by striking out "paragraph 1, 2 or 3" in the fourth line and substituting "a paragraph".

(16) Subsections 36 (19), (20) and (21) of the Act are repealed and the following substituted:

Application of subss. (2) to (16)

(19) If a request for access is made under subsection (17) or (18) by a person other than the person to whom the record relates, subsections (2) to (16) apply with necessary modifications to the giving of access to the person who made the

request.

(17) Subsection 39 (4) of the Act is repealed and the following substituted:

Who must be given notice

(4) A notice under clause (3) (

a) or (

b) or a copy of a decision under clause (3) (

c) shall be given to the person to whom the decision relates and to his or her substitute decision-maker.

(18) Subsection 68 (1) of the Act is amended by adding the following paragraph:

42.1 governing the giving or refusing of consent by a substitute decision-maker under subclauses 32 (2) (a) (ii) and 35 (2) (a) (ii).

Mental Health Act

(1) The definition of "Board" in subsection 1 (1) of the Mental Health Act , as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

"Board" means the Consent and Capacity Board continued under the Health Care Consent Act, 1995 . ("Commission")

(2) The definition of "informal patient" in subsection 1 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

"informal patient" means a person who is a patient in a psychiatric facility, having been admitted with the consent of another person under

section 22 of the Health Care Consent Act, 1995 . ("malade en cure facultative")

Transition, informal patient

(3) A person who is an informal patient immediately before the day subsection (2) comes into force shall be deemed to have been admitted to the psychiatric facility with the consent of another person under

section 22 of the Health

Care Consent Act, 1995 .

(4) The definition of "rights adviser" in subsection 1 (1) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

"rights adviser" means a person, or a member of a category of persons, designated by a psychiatric facility or by the Minister to perform the functions of a rights adviser under this Act in the psychiatric facility. ("conseiller en matière

de droits")

(5) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by adding the following definition:

"substitute decision-maker", in relation to a patient, means the person who would be authorized under the Health Care Consent Act, 1995 to give or refuse consent to a treatment on behalf of the patient, if the patient were incapable

with respect to the treatment under that Act. ("mandataire spécial")

(6) Subsection 13 (6) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Panels of three or five members

(6) Despite subsection 71 (1) of the Health Care Consent Act, 1995 , the chair shall assign the members of the Board to sit in panels of three or five members to deal with applications under this section.

Procedure

(7) Subsection 39 (6) and

section 42 of this Act and clause 71 (3) (a), subsection 71 (4) and sections 72 to 78 of the HealthCare Consent Act, 1995 apply to an application under this section, with necessary modifications.

(7) Subsection 35 (1) of the Act is amended by striking out "section 36" in the first line and substituting "sections 36 and 36.3".

(8) Clause 35 (3) (

b) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

(

b) where the patient is not mentally competent, any person with the consent of,

(

i) the patient's representative appointed under

section 36.1 or 36.2, or

(ii) the patient's substitute decision-maker.

(9) The French version of clause 35 (3) (

d) of the Act is amended by striking out "médicaux" in the third line and substituting "de santé".

(10) Clause 35 (3) (

e) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

(

e) a person currently involved in the direct health care of the patient in a health facility, without consent, if the delay required to obtain consent would result in the patient experiencing severe suffering, would prolong the suffering that

the patient is already apparently experiencing or would put the patient at risk of sustaining serious bodily harm.

(11) Subsection 35 (3) of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by adding the following clauses:

(e.3) a health practitioner, as defined in the Health Care Consent Act, 1995 , who is determining whether the patient is capable with respect to a treatment for the purpose of that Act;

(e.4) an evaluator, as defined in the Health Care Consent Act, 1995 , who is determining whether the patient is capable with respect to admission to a care facility, or with respect to a personal assistance plan, for the purpose of that

Act;

(e.5) an assessor, as defined in the Substitute Decisions Act, 1992 , who is performing an assessment of the patient's capacity for the purpose of that Act.

(12) Subsection 35 (4.1) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is amended by striking out "section 24 or 25 of the Advocacy Act, 1992 or" in the fifth and sixth lines.

(13) Subsection 35 (4.2) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed.

(14) Clause 35 (9) (

b) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

(

b) where the patient is not mentally competent, with the consent of,

(

i) the patient's representative appointed under

section 36.1 or 36.2, or

(ii) the patient's substitute decision-maker; or

. . . . .

(15) Section 35 of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by adding the following subsection:

Alleging incapacity to P.G.T.

(12) This

section does not prohibit a person from making either of the following allegations to the Public Guardian and Trustee and informing the Public Guardian and Trustee of the grounds for the allegation:

1. An allegation, for the purpose of

section 27 of the Substitute Decisions Act, 1992 , that a patient is incapable of managing property and that serious adverse effects are occurring or may occur as a result.

2. An allegation, for the purpose of

section 62 of the Substitute Decisions Act, 1992 , that a patient is incapable of personal care and that serious adverse effects are occurring or may occur as a result.

(16) Subsection 36 (12) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Procedure

(12) Section 71 of the Health Care Consent Act, 1995 applies to an application under subsection (4), with necessary modifications.

Same

(12.1) Sections 42 and 48 of this Act, sections 72 to 78 of the Health Care Consent Act, 1995 and the Statutory Powers Procedure Act do not apply to an application under subsection (4).

(17) Subsection 36 (14) of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by striking out "or presumed" in the first line.

(18) Subsection 36 (15) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Procedure

(15) Section 42 of this Act and sections 71 to 78 of the Health Care Consent Act, 1995 apply to an application under subsection (14), with necessary modifications.

(19) Subsection 36 (16) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Patient not mentally competent

(16) If a patient is not mentally competent, the patient's representative appointed under

section 36.1 or 36.2 or the patient's substitute decision-maker is entitled to examine and copy the patient's clinical record or a copy of the record.

(20) Subsection 36.1 (3) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed.

(21) Paragraph 3 of subsection 36.2 (3) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

3. The patient's substitute decision-maker.

(22) Subsection 36.2 (5) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is amended by striking out "If the patient approves" in the first line and substituting "If the patient does not

object".

(23) Subsection 36.2 (6) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is amended by striking out "If the patient approves them" in the first line and substituting "If the patient does not

object".

(24) Section 36.2 of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is amended by adding the following subsection:

Exception

(7) This

section does not apply if the claim of the patient's substitute decision-maker would prevail under

section 36.3.

(25) The Act is amended by adding the following section:

Ranking

36.3 If a patient's representative appointed under

section 36.1 or 36.2 and the patient's substitute decision-maker both claim the authority to give or refuse consent under clause 35 (3) (

b) or 35 (9) (

b) or to exercise access

to a clinical record under subsection 36 (16),

(

a) the claim of the substitute decision-maker prevails if he or she is a person described in paragraph 1 or 2 of subsection 18 (1) of the Health Care Consent Act, 1995 ; and

(

b) the claim of the representative prevails if the substitute decision-maker is a person described in paragraph 3, 4, 5, 6, 7 or 8 of subsection 18 (1) of that Act.

(26) Section 39 of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by adding the following subsection:

Panels of three or five members

(5.1) Despite subsection 71 (1) of the Health Care Consent Act, 1995 , the chair shall assign the members of the Board to sit in panels of three or five members to hear applications under this section.

(27) Paragraphs 1 and 2 of subsection 39 (6) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, are repealed and the following substituted:

1. A three-member panel shall consist of a psychiatrist, a lawyer and a third person who is neither a psychiatrist nor a lawyer. Despite clause 71 (3) (

b) of the Health Care Consent Act, 1995 , all the members of the panel are required

to make up the quorum.

2. A five-member panel shall include one or two psychiatrists and one or two lawyers. The other member or members shall be persons who are neither psychiatrists nor lawyers. A majority of the members of the panel constitutes a quorum. A

psychiatrist, alawyer and a member who is neither a psychiatrist nor a lawyer are required to make up the quorum.

(28) Section 39 of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by adding the following subsection:

Procedure

(7) Clause 71 (3) (a), subsection 71 (4) and sections 72 to 78 of the Health Care Consent Act, 1995 apply to an application under this section, with necessary modifications.

(29) Subsection 48 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Appeal to court

(1) A party to a proceeding under this Act before the Board may appeal the Board's decision to the Ontario Court (General Division) on a question of law or fact or both.

(30) Subsection 48 (3) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Same

(3) Section 78 of the Health Care Consent Act, 1995 applies to the appeal.

(31) Subsection 49 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is amended by striking out " Consent to Treatment Act, 1992 " in the fifth and sixth lines and substituting " Health

Care Consent Act, 1995 ".

(32) Subsection 60 (2) of the Act, as enacted by the Statutes of Ontario, 1992,

chapter 32,

section 20, is repealed and the following substituted:

Procedure

(2) Except that applications may be made not more frequently than once in any six-month period,

section 42 of this Act and sections 71 to 78 of the Health Care Consent Act, 1995 apply to an application under subsection (1), with

necessary modifications.

Patient discharged

(3) If an application is commenced under this

section by a patient in respect of whom a notice of continuance has been issued, the application may continue to be dealt with by the Board even after the patient is discharged from the psychiatric

facility.

(33) Subsection 81 (1) of the Act, as amended by the Statutes of Ontario, 1992,

chapter 32,

section 20, is further amended by adding the following clauses:

(

h) requiring and governing the designation by psychiatric facilities of persons or categories of persons to perform the functions of a rights adviser under this Act, including prescribing the qualifications and requirements that must be met by

such persons before they may be designated;

(

i) respecting the manner in which rights advisers must carry out their obligations under this Act;

(

j) prescribing and governing the obligations of health practitioners, rights advisers, psychiatric facilities and others in relation to the provision of information about rights, and assistance in exercising rights, to persons who have been

admitted to a psychiatric facility as patients and who are incapable, within the meaning of the Health Care Consent Act, 1995 , with respect to treatment of a mental disorder, including prescribing,

(

i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(

v) the manner and time in which the information or assistance must be given;

(

k) governing the transfer