Bill 2140 — Adult Protection Act, 2021 (50th General Assembly, 1st Session)
Bill 2140
Newfoundland and Labrador — Bills
First
Session, 50th General Assembly
Elizabeth II, 2021
BILL 40
AN ACT RESPECTING THE
PROTECTION OF ADULTS
Received
and Read the First Time ................................................................
Second
Reading ............................................................................................
Committee .....................................................................................................
Third
Reading ...............................................................................................
Royal
Assent .................................................................................................
HONOURABLE JOHN
ABBOTT
Minister of Children,
Seniors and Social Development
Ordered to be printed by
the Honourable House of Assembly
EXPLANATORY NOTES
This Bill would enact the Adult Protection Act, 2021 and repeal
the Adult Protection Act .
This Bill would
amend the law respecting adults in need of protective intervention.
A BILL
AN ACT RESPECTING THE PROTECTION OF ADULTS
Analysis
Short title
Definitions
PART
APPLICATION AND SERVICE PRINCIPLES
Labrador Inuit rights
Application
Adult in need of protective intervention
Presumption
Right to be heard
Service principles
Provincial director
Directors
Statutory review
PART
ADULT IN NEED OF PROTECTIVE INTERVENTION
Reporting required
Evaluation
Investigation may be directed
Investigators
Investigation
Warrant re: entry
Telewarrant
Production of documents
Temporary order assessment, residency
and supervision
Temporary order - financial
Temporary orders - general
Action following investigation
Application for declaration
Order of court
Emergency intervention
Emergency intervention financial
affairs
Appeal
Proceedings
PART
III
GENERAL
Service plan
Review committee
Right to information
Documentation and confidentiality
Review
Good faith protection
Protection of employee from reprisal
Offences
Regulations
PART
TRANSITIONAL, REPEAL AND COMMENCEMENT
Transitional
SNL2015 cA-1.2 Amdt.
SNL1995 cA-4.1 Amdt.
SNL2005 cF-3.1 Amdt.
RSNL1990 cJ-4 Amdt.
RSNL1990 cM-10 Amdt.
SNL2014 cM-16.2 Amdt.
SNL2008 cP-7.01 Amdt.
SNL2011 cA-4.01 Rep.
Commencement
Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This Act may be cited as the Adult
Protection Act, 2021.
Definitions
2. In
this Act
(a) "abuse" means the deliberate
mistreatment of an adult that causes or is reasonably likely, within a short
period of time, to cause the adult
(
i) serious physical,
psychological or emotional harm, or
(ii) substantial damage
to or substantial loss of real or personal property, including financial assets
and includes intimidation, humiliation and
sexual assault;
(b) "adult" means a person who is not a child or youth within the meaning of
the Children, Youth and Families Act;
(c) "adult in need of protective
intervention" means an adult in need of
protective intervention referred to in
section 5;
(d) "authority" means a regional health authority established under
section 6 of
the Regional Health Authorities Act;
(e) "co-habiting partner" means either o f 2 persons who have co-habited in a conjugal relationship
outside of marriage for a period of at least one year;
(f) "court", unless otherwise specified,
means the Provincial Court or the Supreme Court;
(g) "department" means t he department presided over by the minister;
(h) "director" means a person appointed by an authority under
section 10 who has
responsibilities under this Act;
(i) "health care professional" means a
health care professional designated in the regulations;
(j) "judge" , unless
otherwise specified, means a Provincial Court judge or a judge of the
Supreme Court;
(k) "minister" means the minister appointed under the Executive Council
Act to administer this Act;
(l) "neglect" means the failure to provide care, assistance, guidance or
attention to an adult that causes, or is reasonably likely, within a short
period of time, to cause to the adult serious physical, psychological or
emotional harm or substantial damage to or substantial loss of real or personal
property, including financial assets;
(m) "next of kin" means , in order of priority, the adult in need of protective
intervention's
(
i) spouse or
co-habiting partner,
(ii) children,
(iii) parents or guardian,
(iv) siblings;
(n) "peace officer" means a member of the Royal Newfoundland Constabulary or the
Royal Canadian Mounted Police and includes a person approved by the Attorney
General to perform the duties of a peace officer;
(o) "provincial director" means the Provincial Director of Adults in Need of Protective
Intervention referenced in
section 9;
(p) "public body" means a public body as
defined in the Access to Information and Protection of Privacy Act,
2015 ;
(q) "reprisal" means one or more of the following measures taken against an
employee because the employee has, in good faith, made a report or participated
in an investigation as required under this Act:
(
i) a disciplinary
measure,
(ii) a demotion,
(iii) termination of
employment,
(iv) a measure that
adversely affects the employee's employment or working conditions, or
(
v) a threat to take a
measure referred to in subparagraphs (
i) to (iv);
(r) "self-neglect" means the failure of an adult to take adequate care of themself
where that failure causes, or is reasonably likely, within a short period of
time, to cause serious physical or psychological harm or substantial damage to
or substantial loss of assets, and includes
(
i) living in grossly
unsanitary conditions,
(ii) suffering from an
untreated illness, disease or injury that, within a short period of time, is
likely to cause physical or psychological harm,
(iii) suffering from
malnutrition to the extent that, without intervention, the adult's physical or
mental health is likely to be severely impaired, and
(iv) c reating a hazardous
situation that will likely cause serious physical or psychological harm to the
adult or others or cause substantial damage to or substantial loss of the
adult's real or personal property, including financial assets; and
(s) "social worker" means a pe rson
(
i) registered under
the Social Workers Act , and
(ii) employed by an authority
or by the province.
PART I
APPLICATION AND SERVICE PRINCIPLES
Labrador Inuit
rights
3. This
Act shall be read and applied in conjunction with the Labrador Inuit
Land Claims Agreement Act and, where a provision of this Act is
inconsistent or conflicts with a provision, term or condition of the Labrador
Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador
Inuit Land Claims Agreement Act shall have precedence over the
provision of this Act.
Application
(1) This
Act applies to every adult, including an adult who is a
patient or resident in
(
a) a facility operated
by an authority established under paragraph 6(1)(
b) of the Regional
Health Authorities Act ;
(
b) a personal care home as defined
in the Personal Care Home Regulations ;
(
c) a long term care
home;
(
d) a community care
facility; and
(
e) an assisted living
facility.
(2) Notwithstanding subsection (1), t his Act does not apply to an adult who is the subject of a
certificate or a community treatment order issued under the Mental
Health Care and Treatment Act .
Adult in need of
protective intervention
5. An
adult in need of protective intervention is an adult who
(
a) lacks capacity with respect to one or more of
their health care, physical, emotional, psychological, financial, legal, residential
or social needs; and
(
b) with respect to the area in which the adult
lacks capacity under paragraph (a), is
(
i) incapable of caring
for themself, or who refuses, delays or is unable to make provision for
adequate care and attention for themself, or
(ii) abused or neglected.
Presumption
(1) An
adult is presumed to have the capacity to make decisions unless a court
determines, in an application under this Act, that the adult lacks the capacity
to make decisions under subsection (2).
(2) An adult shall be
considered to lack the capacity to make a decision where that adult
(
a) is unable to
understand information relevant to the decision where that decision concerns the
adult's health care, physical, emotional, psychological, financial, legal, residential
or social needs; or
(
b) is unable to
appreciate the reasonably foreseeable consequences of a decision or the lack of
a decision.
(3) Where an adult is
determined to lack the capacity for decision-making referred to in subsection
(2) in one particular area, the adult shall not be presumed to lack the
capacity for decision-making in those other areas or all of them unless the
contrary is determined by a court in an application under this Act .
(4) An adult's method of
communicating with others is not grounds for deciding that the adult lacks the
capacity to make decisions.
(5) For the purpose of this section, capacity for
decision-making shall be assessed by those persons and in the manner prescribed
in the regulations.
Right to be heard
(1) In a matter or proceeding under this Act, whether
before a court or a person having authority to make a decision that affects the
adult who is or may be in need of protective intervention, that adult has the
right
(
a) to be heard in the manner most appropriate to
the adult's circumstances, either on the adult's own behalf or through a
spokesperson; and
(
b) to retain and instruct counsel.
(2) In a proceeding in
which an adult's capacity to make decisions is at issue, the adult shall be
considered to have the capacity to instruct counsel.
Service
principles
8. This Act shall be interpreted and administered in
accordance with t he following principles:
(
a) an adult is entitled
to live in the manner the adult wishes as long as that adult has the capacity to
make decisions respecting the adult's lifestyle;
(
b) in relation to an
intervention to assist or protect an adult who is or may be in need of
protective intervention, the paramount consideration shall be the best
interests of that adult;
(
c) an adult who is or
may be in need of protective intervention should be involved to the greatest
possible extent in decisions relating to that adult;
(
d) an adult who is or
may be in need of protective intervention should receive the most effective but
the least restrictive and intrusive form of support or protection when unable
to care for themself or their assets as program and service resources,
including budgetary appropriations, permit;
(
e) an intervention to assist or protect an adult
should be designed for the specific needs of that adult and should be reviewed
on a regular basis and as the adults needs and conditions change, and should
be revised as appropriate to address those needs and conditions;
(
f) the delivery of
services under this Act should, where appropriate, provide for the
preservation of the adult's cultural and community connections;
(
g) the delivery of
services under this Act should, where appropriate, provide for the preservation
of family ties and contacts; and
(
h) an adult who is or
may be in need of protective intervention should, if desired, be encouraged to
obtain support, assistance and advice from family and friends to help that
adult understand choices, and to make and communicate decisions.
Provincial
director
(1) There
shall be a Provincial Director of Adults in Need of Protective Intervention who
shall
(
a) establish
province-wide policies, programs and standards respecting adults in need of
protective intervention;
(
b) evaluate and monitor
adherence to the established policies, programs and standards; and
(
c) perform those functions and duties imposed by
a court in an order made under the authority of this
Act.
(2) The provincial
director may require that a director exercise and perform duties assigned under
this Act in the manner that the provincial director considers appropriate, and
a director shall comply with those requirements.
(3) N otwithstanding that
a power is conferred or a duty is imposed upon a director under this Act, the
provincial director may, in the provincial director's discretion, exercise that
power or perform that duty.
(4) The provincial director may delegate, in
writing, the provincial director's powers under this Act to another person in
the department.
(5) A person purporting to exercise the power of
the provincial director by virtue of the delegation under subsection (4) shall
produce evidence of that person's authority to exercise that power when
required to do so.
Directors
(1) An
authority shall appoint one or more directors who shall exercise the powers and
perform the duties that are conferred or imposed upon them by this Act.
(2) A director appointed under subsection (1) may
designate a person who is a social worker as acting director to exercise the
powers and perform the duties of that director where the director is absent or
unable to act.
(3) A director shall, where requested by the
provincial director, make a report to the provincial director respecting the
exercise of that director's duties under this Act, and the report shall include
the information that the provincial director may require.
Statutory review
11. The
minister shall, every 5 years, perform a review of this Act, the regulations
made under it and the principles upon which it is based, and consider the areas
in which it may be improved and report the findings to the Lieutenant-Governor
in Council.
PART II
ADULT IN NEED OF PROTECTIVE INTERVENTION
Reporting
required
(1) A
person who reasonably believes that an adult may be an adult in need of
protective intervention shall report that information, together with the name
and address of the adult, if known, to the provincial director, a director, a
social worker or a peace officer.
(2) Where a person makes
a report under subsection (1), the person shall report all the information of
which the person has knowledge.
(3) Where a report is
made to a peace officer under subsection (1), the peace officer shall, as soon
as possible after receiving the report, inform the provincial director, a
director or a social worker.
(4) This
section applies
notwithstanding that the information is confidential or privileged, and an
action does not lie against the person providing the information in good faith
unless the information is given maliciously or without reasonable cause.
(5) Subsection (4)
applies to information which is solicitor-client privileged.
(6) A person shall not
interfere with or harass a person who makes a report under this section.
Evaluation
(1) A
director shall, with the consent of the adult who is or may be in need of
protective intervention, complete an evaluation where the director
(
a) receives a report
under
section 12 ;
(
b) is referred a report
from a person who received it under
section 12; or
(
c) reasonably believes
that a person may be an adult in need of protective intervention.
(2) An evaluation shall be
(
a) commenced not later than 5 days after
receiving a report under
section 12; and
(
b) completed not later than 10 days after
receiving a report under
section 12.
(3) Notwithstanding subsection (1), an evaluation
shall be considered completed where the adult who is or may be an adult in need
of protective intervention does not provide, or is unable to provide, consent
or withdraws consent.
Investigation may
be directed
(1) Where
an evaluation has been completed and a director believes, on reasonable
grounds, that the adult is or may be an adult in need of protective
intervention, the director shall direct that an investigation be completed.
(2) Notwithstanding
that, following an evaluation, a director is satisfied that there are no
reasonable grounds to believe that the adult is or may be an adult in need of
protective intervention and that an investigation is not required, the director
may, where appropriate, refer that adult to health care, social, legal or other
services which may assist the adult.
Investigators
(1) A person who acts as an
investigator shall be a social worker.
(2) An investigator may act for and in the name of
a director or the provincial director and a social worker who is acting as an
investigator may, on behalf of a director or the provincial director, appear in
court.
(3) Notwithstanding subsection (1), w here a social worker is not available, the minister may
authorize another person to perform the duties or exercise the powers of an investigator
minister considers advisable.
Investigation
(1) Where
a director requires that an investigation be completed under
section 14 , a person shall cooperate with that
investigation.
(2) An investigator
shall make all reasonable efforts to interview the adult who is the subject of
the investigation.
(3) An investigator may
(
a) communicate with and
assess the adult who is or may be an adult in need of protective intervention;
(
b) request that the
adult participate in a capacity assessment;
(
c) require a person to
provide information or produce records, documents or other things in that
person's possession or control which, in the opinion of the person completing
the investigation, may be relevant to it;
(
d) solicit, accept and
review reports and information from health care providers, persons who or
agencies that have provided services to the adult who is the subject of the
investigation, or a person who manages the adult's financial affairs, business
or other assets;
(
e) interview anyone who
may have information which would be relevant to the investigation; and
(
f) require the
production of medical or other records respecting the adult who is the subject
of the investigation.
(4) For the purpose of
subsection (3), the right to information overrides
(
a) a claim of
confidentiality or privilege, except solicitor-client privilege; and
(
b) a restriction in an
enactment or the common law about the disclosure or confidentiality of
information.
(5) Notwithstanding
paragraph (4)(a), an investigator may, in the course of an investigation,
require and access information that is solicitor-client privileged where
it relates to the report of a solicitor under
section 12.
(6) Notwithstanding subsections (1) to (5), an
adult who is the subject of an investigation may refuse to participate in an
interview or undergo an assessment under this section, unless ordered to do so under
section 20.
Warrant re: entry
(1) A
judge may issue a warrant authorizing a director or an investigator named in
the warrant to enter onto lands or premises and exercise a power referred to in
section 16 where the judge is satisfied
on evidence under oath that
(
a) there are reasonable grounds to believe that
the adult who is the subject of the investigation is or may be an adult in need
of protective intervention;
(
b) there are reasonable grounds to believe that
entry onto the lands or premises is necessary to assess the adult who is the
subject of the investigation or access, copy or remove documents necessary for
the investigation; and
(
c) either
(
i) the director or investigator has been denied
entry onto the lands or premises or has been obstructed in exercising a power
under
section 16 with respect to the
lands or premises, or
(ii) t here are reasonable
grounds to believe the director or investigator will be denied entry onto the
lands or premises or obstructed in exercising a power with respect to the lands
or premises.
(2) A warrant issued under subsection (1) shall
(
a) s pecify the times,
which may be during the day or night, during which the warrant may be carried
out; and
(
b) s tate when the
warrant expires.
(3) A judge may extend the date on which a warrant expires for
those additional periods as the judge considers
necessary.
(4) A judge may receive
and consider an application for a warrant or extension of a warrant under this
section without notice to the owner or occupant of the land or premises to
which it applies.
(5) A director or an investigator authorized under a warrant
issued under subsection (1) to enter onto land or premises may call on peace
officers as necessary and may use force as necessary
to make the entry and take the action authorized in the warrant.
(6) A director or an investigator named in a warrant issued
under subsection (1) may call on other persons the director or investigator
considers advisable to assist in the execution of the warrant.
Telewarrant
(1) Where,
in the opinion of a director or investigator, it would not be practical to
appear in person before a judge to apply for a warrant, the director or
investigator may make the application by telephone or other means of
telecommunication.
(2) Where a director or
investigator enters onto land or premises under the authority of a warrant
obtained under this section, the director or investigator shall provide the
person who is the owner or occupier of that land or premises with a facsimile
of the warrant.
(3) In subsection (2),
"facsimile" includes a record produced by electronic means or a
written record of a telephone conversation made by both parties to the
conversation while it is in progress and which the parties have confirmed as to
its accuracy by reading their record of the conversation to one another at the
end of the conversation.
Production of
documents
(1) Where,
after the commencement of an investigation under
section 14 and before the
issuance of an order under
section 25, a director reasonably believes that an
adult is or may be an adult in need of protective intervention, the director
may apply to a court for an order requiring a person to provide information or
produce records, documents or other things referred to in
section 16.
(2) A judge may make an order under subsection (1)
where
(
a) there are reasonable grounds to believe that
the information, record, document or other thing is necessary for determining
whether an adult is an adult in need of protective intervention;
(
b) there are reasonable grounds to believe that
the person has possession or control of the information, record, document or
other thing; and
(
c) the person has neglected or refused, on
request of a director or a social worker, to provide the information or produce
the record, document or other thing.
(3) Notice of the date, time and place of a
hearing under this
section shall be served on the person against whom the order
is sought no later than 2 days before the date set for the hearing.
(4) Notwithstanding subsection (3), where a
director believes on reasonable grounds that the information, record, document
or other thing may be destroyed where notice is given, an application under
this
section may be heard without notice to the person against whom the order
is sought.
(5) Where an application is made under this
section, the court shall hold a hearing no later than 5 days after the
application is filed.
Temporary order
assessment, residency and supervision
(1) Where,
after the commencement of an investigation under
section 14 and before the
issuance of an order under
section 25, a director reasonably believes that an
adult is or may be an adult in need of protective intervention, the director
may apply to court for an order under subsection (2).
(2) Where the court is satisfied, on an application
made under subsection (1), that there are reasonable grounds to believe that
the adult who is the subject of the application is or may be an adult in need
of protective intervention and that it is in the best interests of the adult to
do so, the court may make one or more of the following orders:
(
a) an order that the adult undergo a medical
assessment by a health care professional;
(
b) an order that the adult undergo a capacity
assessment under subsection 6(5);
(
c) an order that a person performing an
assessment under paragraph (
a) or (
b) be authorized to enter a premises to
perform the assessment or that the adult be brought to an identified location
for the purposes of the assessment;
(
d) an order that the adult be placed under the
(
e) an order that the adult reside in a place
(
f) an order that the adult lacks capacity with
respect to one or more of their health care, physical, emotional,
psychological, financial, legal, residential or social needs, and that the
director or another person identified in the order is authorized to make
decisions on behalf of the adult as set out in the order; and
(
g) any other order that the court considers
necessary and appropriate to ensure the safety and well being of the adult or
to preserve the adult's personal property.
(3) Where the court makes an order under paragraph
(2)(
c) or (2)(
e) and there are reasonable grounds to believe that there is a
risk of loss of or damage to real or personal property as a result of the
adult's inability to reside in or deal with the property, and that no other suitable arrangements have been or are
being made for the purpose , the order shall authorize a director or
another person designated in the order to enter a premises and take reasonable
steps to prevent or mitigate loss of or damage to the property.
Temporary order -
financial
(1) Where,
after the commencement of an investigation under
section 14 and before the
issuance of an order under
section 25, a director reasonably believes that an
adult is or may be an adult in need of protective intervention, the director
may apply to court for an order under subsection (2).
(2) Where the court is satisfied, on an
application made under subsection (1), that there are reasonable grounds to
believe that the adult who is the subject of the application is or may be an
adult in need of protective intervention and that it is necessary to conduct a
financial evaluation of the adult's real or personal
property, including financial assets, and to ensure the protection of
the adult's property and assets, the court may make one or more of the
following orders:
(
a) an order that a director, social worker or
other appropriate person conduct an audit or other financial evaluation of the real or personal property, including financial assets,
of the adult; and
(
b) an order that the public trustee or other
appropriate person become the guardian of the real or
personal property, including financial assets, of the adult for such period of time as the judge
considers necessary .
(3) Notwithstanding paragraph (2)(b), the court
shall not make an order that the public trustee become a guardian unless
(
a) the public trustee has been given notice of
the application and an opportunity to make representations with respect to the
application; or
(
b) the public trustee consents to the order.
Temporary orders
- general
(1) Where
an adult consents to an order made under
section 19,
section 20 or
section 21,
a judge shall be satisfied that
(
a) the opinion of the
adult has been considered; and
(
b) the adult consenting
to the order has been informed that they may be represented by legal counsel.
(2) A consent by an
adult under this Act is not an admission by the adult of a ground for
protective intervention alleged by a director or social worker.
(3) Where an application is made under
section 20
or 21, the court shall hold a hearing no later than 5 days after the application
is filed.
(4) Notice of the date, time and place of a
hearing under
section 20 or 21 shall be served, no later than 2 days before the
date set for the hearing, on
(
a) the adult who is the subject of the
application;
(
b) a person with whom the adult who is the
subject of the application resides, where the director considers it appropriate;
(
c) the next of kin of the adult who is the
subject of the application, and where the next of kin is determined to be the
children or siblings of the adult, reasonable efforts shall be made to notify
all those children or siblings; and
(
d) the adult's spokesperson, where a spokesperson
has been previously identified by the adult or where the director considers it
appropriate.
(5) An adult who is the subject of an application under
section 19,
section 20 or
section 21 has a right to be heard, directly or
indirectly, in all proceedings relating to the application, and that adult may
be consulted in private if the adult so desires.
(6) Notwithstanding subsection (5), where a
director believes on reasonable grounds that providing notice under subsection
(4) would put the adult who is the subject of the application or the adult's real or personal property, including financial assets,
at risk, the director may make an application, without notice to any other
party, to the court to dispense with the requirement for notice and the court
may make an order the court considers appropriate in the circumstances.
(7) An order issued under
section 20 or 21 shall
expire 30 days after the date on which it is made, unless terminated under
subsection (8) or extended under subsection (9).
(8) Where a material change in circumstances
occurs, a director or a person who received notice under subsection (4) may
apply to the court to terminate or vary the order, and the court may terminate
or vary the order where the court is satisfied that the termination or
variation is in the best interests of the adult who is the subject of the order
and would not cause the adult to be in need of protective intervention.
(9) Where a director makes an application before
the date an order expires under subsection (7), the court may extend an order
under
section 20 or 21 for a further period of up to 30 days, on the same terms
(10) Notwithstanding subsection (7) or (9), an
order made under
section 20 or 21 shall expire on
(
a) the date an order is issued under
section 25;
(
b) the date an application under
section 24 is
dismissed.
Action following
investigation
(1) Where
a director requires that an investigation be completed under
section 14, the
investigation shall be completed and the investigator shall submit an
investigation report to the director, in the form prescribed by the provincial
director, not later than 30 days after the direction to complete the
investigation is made, unless the time period for completing the investigation
is extended under subsection (2).
(2) A director may apply to the court for an
extension of the time period referred to in subsection (1), and the court may
order that the time period be extended for the period that the court considers
(3) Where, following an investigation, a director
believes that an adult is an adult in need of protective intervention, the
director
(
a) shall
(
i) report that belief
to the provincial director, and
(ii) prepare a service
plan for that adult based on criteria set by the minister; and
(
b) may
(
i) report the matter to
the police, or
(ii) provide or arrange
for support services consistent with the service plan prepared under paragraph
(a).
(4) A director shall, not later than 10 days after
the completion of an investigation under subsection (1) or within such other
period as may be directed in writing by the provincial director, submit the
evaluation under
section 13, the investigation report, and the service plan
required under subparagraph (3)(a)(ii) to the provincial director.
Application for
declaration
(1) Where
the provincial director receives a report under
section 23 indicating that an
adult is believed by a director to be an adult in need of protective
intervention, the provincial director may apply to the court for a declaration
that the adult is an adult in need of protective intervention.
(2) An application under this
section shall
include a capacity assessment .
(3) A hearing under this
section shall be held within 30 days of the filing of the application under
subsection (1) .
(4) Notice of the date, time and place of a
hearing under this
section shall be served within 10 days after issuing the
application or at least 10 days prior to the date set for the hearing,
whichever occurs first, on
(
a) the adult who is the subject of the
application;
(
b) a person with whom the adult who is the
subject of the application resides, where the director considers it appropriate;
(
c) the next of kin of the adult who is the
subject of the application, and where the next of kin is determined to be the
children or siblings of the adult, reasonable efforts shall be made to notify
all those children or siblings;
(
d) the adult's spokesperson, where a spokesperson
has been previously identified by the adult or where the provincial director considers
it appropriate;
(
e) a person from whom support is sought, where
the application seeks payment of support from a spouse or co-habiting partner of
the adult; and
(
f) a person against whom an order under subsection
25(9) is sought.
(5) Where the provincial director believes on
reasonable grounds that providing notice under subsection (4) would put the
adult who is the subject of the application or the adult's real or personal property, including financial assets,
at risk, the provincial director may make an application, without notice to any
other party, to the court to dispense with the requirement for notice and the
court may make an order the court considers appropriate in the circumstances.
(6) Not later than 5 days before a hearing under
this section, the provincial director shall file a service plan for the adult
who is the subject of the application with the court and shall provide a copy
to those persons to whom notice of the hearing has been served or given.
(7) Not later than 2 days before the hearing under
this section, the persons to whom a copy of a plan has been given under
subsection (6) may respond to the plan and file an alternate written plan with
the court and provide a copy to the provincial director.
(8) An adult who is the subject of an application
under this
section has a right to be heard, directly or indirectly, in all
proceedings relating to the application, and that adult may be consulted in
private if the adult so desires.
(9) Following a hearing under this section, a
judge may make an order under
section 25.
(10) The onus of proving
the adult is an adult in need of protective intervention is on the provincial
director.
Order of court
(1) On hearing an application under
section 24, a judge may order that an adult lacks
capacity with respect to one or more of their health care, physical, emotional,
psychological, financial, legal, residential or social needs and is an adult in need of protective intervention .
(2) Where a judge makes an order under subsection
(1), the judge shall also make one or more of the following orders:
(
a) an order that the adult be placed under the
supervision of the provincial director or a director, on the terms and
conditions set out in the order;
(
b) an order that the adult reside in a place
the order;
(
c) an order that the provincial director,
director or another person identified in the order is authorized to make decisions
on behalf of the adult with respect to the area in which the adult has been
and
(
d) an order requiring the payment of support by a
spouse or co-habiting partner of a person declared to be an adult in need of
protective intervention.
(3) An order made under subsection (1), subsection
(2) or subsection (9) may be for an indefinite duration, or for such other
duration as the court considers appropriate, and may be subject to review by
appropriate.
(4) An order made under paragraph (2)(
b) shall not
contain conditions which apply to the provincial director, a director, a social
worker, an authority or the department.
(5) Notwithstanding subsection (4), an order made
under paragraph (2)(
b) may contain conditions applying to the provincial
director, a director, a social worker, an authority or the department where the
provincial director, a director, a social worker, an authority or the
department agrees and consents to those conditions.
(6) Where there is a pension or other income
payable to
(
a) an adult who has
been declared to be an adult in need of protective intervention; or
(
b) a person responsible
for the support of an adult who has been declared to be an adult in need of
protective intervention,
and the pension or other income is capable
of being attached, a judge may, after giving a person referred to in paragraph
(
a) or (
b) an opportunity to be heard, order that the part of the pension or
other income that the judge considers appropriate be attached and be paid to a
person that the judge may direct.
(7) The order under
subsection (6) is authority to the person by whom the pension or other income
is payable to make the payment ordered, and the receipt of the person to whom
the payment is ordered to be made shall be a sufficient discharge to the person
by whom the pension or other income is payable.
(8) For the purpose of
subsections (6) and (7), "income" includes pension income, savings
and other assets.
(9) A judge may order
that a person who is found to be a source of neglect or abuse to the adult in
need of protective intervention
(
a) stop living in and
stay away from the premises where the adult in need of protective intervention
lives, where the person is not the owner or lessee of the premises;
(
b) not visit,
communicate with, harass or interfere with the adult in need of protective
intervention;
(
c) c ease all contact or
association with the adult in need of protective intervention and have no
further involvement in the adult's affairs, business dealings or estate; or
(
d) limit contact, association or communication
out in the order.
(10) Notwithstanding paragraph (2)(
d) or subsection
(9), a judge shall not make an order under paragraph 2(
d) or subsection (9)
unless the person against whom the order is sought has been given notice of the
application and an opportunity to make submissions, or consents to the order.
(11) Where there is a
material change in the circumstances of the adult in need of protective
intervention, a person may make an application to vary or terminate the order
or to make a new order, and unless the application relates to the termination
of an order, an updated service plan shall be filed with the court.
(12) Where an adult has been declared an adult in
need of protective intervention and has been declared to lack capacity with
respect to their financial needs, the provincial director may send a notice to
the public trustee in accordance with
section 22.1 of the Mentally
Disabled Persons Estates Act.
Emergency
intervention
(1) A
director or a social worker shall file an application with the court for a
warrant to remove an adult where the director or social worker believes
(
a) that the adult is or
may be an adult in need of protective intervention; and
(
b) a less intrusive
course of action that would adequately protect the adult is not available.
(2) A judge may issue a warrant authorizing a
director or social worker to enter a premises or vehicle or board a vessel or
aircraft, by force if necessary, to remove an adult where
the judge is satisfied on the basis of the director's or social worker's sworn
information that there are reasonable grounds to believe that
(
a) the adult is or may
be an adult in need of protective intervention; and
(
b) a less intrusive
course of action that would adequately protect the adult is not available.
(3) Notwithstanding
subsection (1), where a director or social worker has reasonable grounds to
believe there would be an immediate risk to the adult's health and safety if no
action were taken during the time required to obtain a warrant, the director or
social worker may enter a premises or vehicle or board a vessel or aircraft, by
force if necessary, to remove the adult without a warrant .
(4) At the r equest of a
director or social worker, a peace officer shall assist in enforcing a warrant
issued under subsection (2), or if a warrant is not obtained, the peace officer
shall assist a director or social worker under subsection (3).
(5) A warrant issued
under subsection (2) need not describe the adult by name or specify a
particular premises.
(6) An application under
this
section may be made by telephone or other means of telecommunication, and
section 18 applies with the necessary changes to the manner of obtaining that
telewarrant.
(7) A copy of the
warrant or telewarrant shall be given to
(
a) the adult who is the
subject of the warrant;
(
b) the person from
whose premises the adult is removed, if applicable; and
(
c) the provincial
director.
(8) Where an adult is
removed from the premises in which the adult is living under this section, the
adult may be moved to a place determined to be suitable by the director or
social worker.
(9) Where an adult is
removed from the premises in which the adult is living to another place under
this
section and there are reasonable grounds to believe that there is a
risk of loss of or damage to real or personal property as a result of the
adult's inability to reside in or deal with the property , and that no other suitable arrangements have been or are being made
for the purpose, the director or social worker
(
a) shall take
reasonable steps to prevent or mitigate the loss or damage; and
(
b) may enter premises
which were the adult's place of residence or usual place of residence
immediately before the adult's removal under this
section at reasonable times,
and to deal with property of the adult in a way which is reasonably necessary
to prevent or mitigate loss or damage.
(10) A director or social
worker may recover from the adult, or from a person liable to maintain the
adult, reasonable expenses incurred by the director or social worker under
subsection (9).
(11) A director shall, within 2 days of an adult
being removed under the authority of a warrant issued under subsection
(2) or under the authority of subsection (3), make an application to a
court under
section 20 or
section 21 and the court shall hear that application
within 2 days of the making of the application.
Emergency
intervention financial affairs
(1) The
public trustee may, at the written request of the provincial director,
intervene in a manner to the extent that may be demonstrably necessary to
temporarily prevent or contain loss or damage to an adult's real or personal property, including financial assets,
where the provincial director reasonably believes that an urgent situation
exists in which a person who is or may be an adult in need of protective
intervention but has not yet been declared as such
(
a) is unable to manage
their real or personal property, including financial assets; and
(
b) there is immediate
danger of substantial damage to or substantial loss of the adult's real or
personal property, including financial assets.
(2) Where the public
trustee takes the action referred to in subsection (1), the public trustee
shall, within 3 days of taking that action, apply to a court and the court
shall hear that application within 5 days of the making of the application.
(3) On hearing an application under subsection
(2), a judge may
(
a) make an order confirming any actions of the
public trustee taken under subsection (1);
(
b) make an order appointing the public trustee as
guardian for the real or personal property, including
financial assets, of the adult for the period of time the judge
considers necessary; and
(
c) make any other order that the judge considers
necessary and appropriate to prevent or
contain loss or damage to the adult's real or
personal property, including financial assets .
Appeal
(1) A
person aggrieved by an order of a judge under this Act, or by the refusal of a
judge to make an order, may appeal from the decision granting or refusing the
order
(
a) to the Supreme Court,
where the judge is a judge of the Provincial Court; and
(
b) t o the Court of
Appeal, where the judge is a judge of the Supreme Court.
(2) The provisions of the Judicature Act and
the Rules of the Supreme Court, 1986 shall govern the
proceedings on an appeal under subsection (1).
(3) The Supreme Court or
Court of Appeal to which an appeal is made may set aside or confirm the order
referred to in subsection (1) or may make an order that a judge under this Act
can make or may, by order directed to the judge from whom the appeal is taken,
require that judge to make an order as the
circumstances of the case may require.
Proceedings
(1) A
proceeding under this Act
(
a) is civil in nature;
(
b) ma y be as informal
as a judge may allow; and
(
c) shall be held in
private, unless otherwise ordered by the judge.
(2) In a proceeding
under this Act, a judge may admit and act upon
(
a) the evidence,
including hearsay, that the judge considers relevant and reliable in the
circumstances;
(
b) an oral statement
which has been recorded;
(
c) a written statement;
(
d) a report the judge
considers relevant, including a transcript, exhibit or finding in an earlier
civil or criminal proceeding; and
(
e) evidence taken and a
declaration made at a prior proceeding under this Act or under a similar
statute.
(3) A proceeding under
this Act may be conducted by means of teleconference, videoconference or other
means of telecommunication.
(4) A judge may
(
a) s horten the time
period to serve a notice under this Act; or
(
b) dispense with a
requirement to serve notice of a proceeding under this Act.
PART III
GENERAL
Service plan
(1) A
director or the director's designate shall prepare a service plan in accordance
with the regulations for every adult who is the subject of an application under
section 24 or an order under
section 25.
(2) Every service plan shall be reviewed at least
every 6 months.
(3) Notwithstanding
subsection (2), where there is a material change in the circumstances or
condition of the adult in need of protective intervention, that adult's service
plan shall be reviewed and modified as necessary.
(4) An adult who is or
may be an adult in need of protective intervention has the right to participate
in the development of the adult's service plan, including amendments to it.
Review committee
(1) There
shall be a review committee which shall review, at least once every year, the
service plans of every adult who has been declared to be an adult in need of
protective intervention, and that review shall be in addition to another review
required under this Act.
(2) The review committee
shall be comprised of the provincial director and all directors appointed by
the authorities with duties under this Act.
Right to
information
(1) The
provincial director, a director or a social worker has the right to information
concerning an adult where the information
(
a) is relevant to one or more of the areas of
capacity the adult is alleged to lack;
(
b) is necessary to enable the provincial
director, director or social worker to exercise their powers or perform their
duties or functions under this Act or the regulations, including powers, duties
or functions relating to assessments or the determination of whether an adult
is an adult in need of protective intervention;
(
c) is necessary to determine and inform the
supports and services that may be necessary for an adult who is or may be an
adult in need of protective intervention; and
(
d) is in the custody or under the control of
(
i) a person, or
(ii) a public body.
(2) A public body or a person referred to in
subsection (1) that has custody or control of information to which the
provincial director, a director or a social worker is entitled under subsection
(1) shall disclose that information to the provincial director, director or
social worker.
(3) Notwithstanding
subsections (1) and (2), information that is subject to solicitor-client
privilege is not required to be disclosed unless the information is required to
be disclosed under
section 12.
(4) Notwithstanding subsections (1) and (2), a
peace officer may refuse to disclose information where
(
a) the disclosure would
be an offence under
an Act of Parliament; or
(
b) the disclosure would be harmful to law
enforcement or could reasonably be expected to interfere with public safety,
unless the information is required to be disclosed under
section 12.
Documentation and
confidentiality
(1) A
person employed in the administration of this Act shall comply with the
documentation standards prescribed in the regulations.
(2) A person employed in the administration of
this Act shall maintain confidentiality with respect to all matters that come
to that person's knowledge in the course of that person's employment and shall
not communicate the matters to another person, including a person employed by
the government, except
(
a) with the consent of
the person to whom the information relates;
(
b) where the disclosure
is required by another Act of the province;
(
c) for the purpose of
complying with a subpoena, warrant or order issued or made by a court, person
or body with jurisdiction to compel the production of information;
(
d) where, in the
opinion of a director, the disclosure is in the best interests of the person to
whom the information relates;
(
e) where the disclosure
is necessary to the performance of duties or the exercise of powers under this
Act;
(
f) where the disclosure
is to the next of kin of the adult who is or may be an adult in need of protective
intervention, where that disclosure is, in the opinion of a director, in the
best interests of the person to whom the information relates;
(
g) where the disclosure
is for research approved by a research ethics body; or
(
h) for another purpose
authorized by the regulations.
(3) Information released under this
section shall
only be used for the purpose for which it was released.
(4) The department or an
authority is not liable for damages caused to a person as a result
of the release of information under subsection (2).
(5) Where a request is
made to the department or an authority, a person shall be denied access to
information in a record where
(
a) there are reasonable
grounds to believe that the disclosure might result in physical, emotional or
financial harm to that person or another person;
(
b) the disclosure would
identify a person who made a report under
section 12; or
(
c) the disclosure could
reasonably be expected to jeopardize an investigation under this Act or a
criminal investigation.
(6) Wh ere information
excepted from disclosure under this
section can reasonably be severed, a person
who is otherwise permitted to receive information under this
section shall be
given the remainder of the information.
(7) Where a request is
made to the department or an authority, a person has a right of access to
information or records created or maintained respecting that person in the
course of the administration of this Act except where
(
a) that information
would identify a person making a report under
section 12; or
(
b) there are reasonable
grounds to believe that the disclosure may result in physical, emotional or
financial harm to that person or another person.
Review
(1) A
person who requests information under this Act and who is not given the
information requested may apply, in accordance with the regulations, for a review
of the refusal to give that information.
(2) A review referred to in subsection (1) shall
be conducted in accordance with the regulations.
(3) An appeal lies from a decision on a review under
subsection (1) to a judge of the Supreme Court.
Good faith
protection
35. An
action for damages does not lie against a trustee, an officer or an employee of
an authority, an employee of the department or the minister personally for anything
done or omitted in good faith in the performance or intended performance of a
duty or the exercise or intended exercise of a power under this Act, or for a
neglect or default in the performance, or intended performance, of a duty, or
the exercise or intended exercise, of a power, in good faith, under this Act.
Protection of
employee from reprisal
(1) A
person shall not take a reprisal against an employee or direct that one be
taken against an employee because that employee has, in good faith
(
a) sought advice about
making a report;
(
b) made a report; or
(
c) cooperated in an
investigation under this Act.
(2) A person who takes a
reprisal against an employee or directs that one be taken contrary to
subsection (1) is subject to appropriate disciplinary action, including
termination of employment, in addition to and apart from another sanction
provided by law.
Offences
37. A person who contravenes this Act or the regulations is
guilty of an offence and is liable on
summary conviction to a fine not
exceeding $10,000 or to imprisonment for a term not exceeding one year in
default of payment or to both a fine and imprisonment.
Regulations
38. The
minister may make regulations
(
a) designating health care professionals under
paragraph 2(i);
(
b) prescribing the persons who may conduct a ssessments of capacity under
section 6, and the manner in which those assessments shall be
conducted;
(
c) prescribing a purpose for which information may be disclosed under paragraph 33(2)(h);
(
d) prescribing documentation standards for
information regarding adult protection;
(
e) prescribing the
required components of a service plan;
(
f) respecting the review of a refusal to give
information under subsection 34(2); and
(
g) generally, to give
effect to the purpose of this Act.
PART IV
TRANSITIONAL, REPEAL AND COMMENCEMENT
Transitional
39. Where
(
a) an evaluation or
investigation was begun but had not concluded before the coming into force of
this Act, the provisions of this Act shall apply and the coming into force of
this Act does not affect the validity of that evaluation or investigation; and
(
b) a person was
declared to be an adult in need of protective intervention under the Adult
Protection Act, that person shall be considered to be an adult in need
of protective intervention under this Act, and the provisions of this Act shall
apply.
SNL2015 cA-1.2
Amdt.
Schedule A of the Access to Information and Protection of Privacy Act, 2015 is
amended by deleting paragraph (
b) and substituting the following:
(
b) sections 33 and 34 of the Adult Protection Act, 2021 ;
SNL1995 cA-4.1
Amdt.
41. Subsections 10(3), (4) and (5) of the Advance Health Care Directives Act are
amended by deleting the reference " Adult
Protection Act " wherever it appears and substituting the reference
" Adult Protection Act, 2021 ".
SNL2005 cF-3.1
Amdt.
42. (1) Paragraph 13(1.1)(
b) of the Family Violence Protection Act is
amended by deleting the reference " Adult
Protection Act " and substituting the reference " Adult Protection Act, 2021 ".
(2) Section 19 of the Act is amended by deleting
the reference " Adult Protection Act "
and substituting the reference " Adult
Protection Act, 2021 ".
RSNL1990 cJ-4
Amdt.
43. Paragraph 43.9(1)(l.1) of the Judicature Act is amended by deleting
the reference " Adult Protection Act "
and substituting the reference " Adult
Protection Act, 2021 ".
RSNL1990 cM-10
Amdt.
44. Subsection 22.1(1) of the Mentally Disabled Persons' Estates Act is amended by deleting the
reference " Adult Protection Act "
and substituting the reference " Adult
Protection Act, 2021 ", and by deleting the reference "subsection
22(9)" and substituting the reference "subsection 25(12)".
SNL2014 cM-16.2
Amdt.
45. Subparagraph 2(j)(
i) of the Missing Persons Act is amended by
deleting the reference " Adult Protection
Act " and substituting the reference " Adult Protection Act, 2021 ".
SNL2008 cP-7.01
Amdt.
46. Paragraph 7(
f) of the Personal Health Information Act is repealed and the following
substituted:
(
f) where the individual is the subject of an
order under paragraph 25(2)(
c) of the Adult
Protection Act, 2021 , by
the person authorized in that order to make decisions on behalf of the
individual; or
SNL2011 cA-4.01
Rep.
47. The Adult
Protection Act is repealed.
Commencement
48. This Act comes into force on a day to be
proclaimed by the Lieutenant-Governor in Council.
Queen's Printer