Fourth Session,

46th General Assembly

60 Elizabeth II,

BILL 1

AN ACT RESPECTING THE PROTECTION

OF ADULTS

Received

and Read the First Time .......................................... March

21, 2011

Second

Reading ......................................................................... April

5, 2011

Committee ............................................................

Amendment April 12, 2011

Third

Reading ........................................................................... April

12, 2011

Royal

Assent ...................................................................................................

HONOURABLE JEROME

P. KENNEDY, Q.C.

Minister of Health

and Community Services

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would repeal and replace the Neglected Adults Welfare Act. The Bill

would

update the law respecting

adults in need of protective intervention;

define, for the purpose of this

Act, "abuse", "neglect" and "self-neglect";

clarify that an adult is presumed

to have the capacity to make decisions;

require a person who believes

that an adult may be an adult in need of protective intervention to report that

information;

specify time frames for

submitting and processing applications to the court respecting an adult in need

of protective intervention and provide authority for emergency intervention;

require that a service plan be

completed before an application is made respecting an adult who may be in need

of protective intervention, and require regular review and appropriate

modification of service plans; and

increase penalties respecting

contraventions of the Act.

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

Directors

Provincial director

Review

PART

ADULT IN NEED OF PROTECTIVE INTERVENTION

Reporting required

Evaluation

Investigation may be directed

Investigators

Investigation

Warrant re: entry

Telewarrant

Application and orders re: investigation

Action following investigation

Application for declaration

Order of court

Emergency intervention

Emergency intervention-financial affairs

Appeal

Proceedings

PART

III

GENERAL

Service plan

Review committee

Confidentiality

Good faith protection

Protection of employee from reprisal

Offences

Regulations

PART

TRANSITIONAL, REPEAL AND COMMENCEMENT

Transitional

NLR 11/07 Amdt.

SNL1995 cA-4.1 Amdt.

RSNL1990 cJ-4 Amdt.

RSNL1990 cM-10 Amdt.

NLR 18/08 Amdt.

RSNL1990 cN-3 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.

Definitions

2. In

this Act

(a) "abuse" means the deliberate

mistreatment of an adult who lacks the capacity to protect himself or herself 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

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 Child,

Youth and Family Services 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

of 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 Trial Division;

(g) "department" means the department

presided over by the minister;

(h) "director" means a person appointed

by an authority who has responsibilities under this Act;

(i) "judge", unless otherwise specified,

means a Provincial Court

judge or a judge of the Trial Division;

(j) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(k) "neglect" means the failure to

provide care, assistance, guidance or attention to an adult who lacks capacity 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 assets;

(l) "next of kin" means, in order of

priority, the adult in need of protective intervention's

(

i) spouse or co-habiting partner,

(ii) children, or

(iii) parents or guardian,

and

"adult in need of protective intervention" includes a person who may

be an adult in need of protective intervention;

(m) "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;

(n) "provincial director" means the

Provincial Director of Adults in Need of Protective Intervention;

(o) "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 his or her

employment or working conditions, or

(

v) a threat to take a measure referred to in subparagraphs

(

i) to (iv);

(p) "self-neglect" means the failure of

an adult who lacks capacity to take adequate care of himself or herself 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) creating a hazardous situation that will

likely cause serious physical harm to the adult or others or cause substantial

damage to or substantial loss of the adult's assets; and

(q) "social worker" means a person

(

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

4 .

(1) This

Act applies to every person who is not a child or youth as defined in the Child,

Youth and Family Services Act , including a person 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) This Act does not apply to a person 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

An adult in need of protective intervention means an adult who lacks capacity

and who

(

a) is incapable of caring for himself or herself,

or who refuses, delays or is unable to make provision for adequate care and

attention for himself or herself; or

(

b) is abused or neglected.

Presumption

(1) An

adult is presumed to have the capacity to make decisions unless the contrary is

proven.

(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 his or her 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

context, he or she shall not be presumed to lack the capacity for

decision-making in those other contexts or all of them unless the contrary is proven.

(4) An adult's method of communicating with others

is not grounds for deciding that he or she is incapable of making decisions.

(5) For the purpose of this section, capacity for

decision-making may be assessed by those persons approved by the minister in

the regulations.

Right to be heard

7. 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 to be heard either on

his or her own behalf or through a spokesperson.

Service

principles

8. The

following principles apply to the delivery of programs and services under this

Act:

(

a) an adult is entitled to live in the manner he

or she wishes as long as that adult

(

i) has the capacity to make decisions respecting

his or her lifestyle, and

(ii) does not harm himself, herself or others;

(

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 him or her;

(

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

himself or herself or his or her 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

and revised as his or her needs and condition change;

(

f) the delivery of services under this Act should

provide for the preservation of family ties and contacts in all appropriate

circumstances; and

(

g) 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.

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, every 6 months or more often

if 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 .

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) where ordered by the court or otherwise under

the authority of this Act, maintain custody of persons who are or may be adults

in need of protective intervention.

(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) Notwithstanding that a power is conferred or a

duty is imposed upon a director under this Act, the provincial director may, in

his or her discretion, exercise that power or perform that duty.

Review

11 . The

minister shall, every 5 years, perform a review of this Act and the regulations

made under it, the principles upon which it is based and consider the areas in

which it may be improved and report his or her 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 immediately give 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 he or she 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 gives information under this section.

Evaluation

(1) A

director shall complete an evaluation where he or she

(

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 completed as soon as practicable but no

later than 5 clear days of a director receiving a report under

section 12 .

Investigation may

be directed

(1) Where

an evaluation has been completed and a director believes, on reasonable

grounds, that the adult is 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 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 or another person or class of persons designated by the minister in the regulations.

(2) An investigator may act for and in the name of

a director or 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.

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 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.

Warrant re: entry

(1) A

judge may issue a warrant authorizing a director or an investigator named in

the warrant to enter on lands or premises and exercise a power referred to in

section 16 where the judge is satisfied on evidence

under oath that there are reasonable grounds to believe that entry on the lands

or premises is necessary to assess the person who is the subject of the

investigation or access, copy or remove documents necessary for the investigation

and

(

a) that the director or investigator has been

denied entry to the lands or premises or has been obstructed in exercising a

power under

section 16 with respect to the

lands or premises; or

(

b) there are reasonable grounds to believe the director

or investigator will be denied entry to 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) specify the times, which may be during the day

or night, during which the warrant may be carried out; and

(

b) state 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 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 he or she

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 on

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.

Application and

orders re: investigation

(1) Where

it may be necessary during the course of an investigation, a director may apply

to a court for an order under subsection (2).

(2) A judge may make an order

(

a) requiring the release of information referred

to in

section 16;

(

b) requiring a medical assessment by a health

care professional;

(

c) requiring a capacity assessment by a person approved

to perform it under subsection 6(5);

(

d) allowing a person performing an assessment

under paragraph (

b) or (

c) to enter into a premises to perform that assessment;

(

e) requiring auditing or other financial

evaluation of assets;

(

f) requiring that the adult who may be an adult

in need of protective intervention be removed from the place of residence; or

(

g) that the judge considers necessary

where the judge is satisfied on evidence

under oath that there are reasonable grounds to believe those actions are required

to assess the adult who is the subject of the investigation, or his or her

assets.

Action following investigation

(1) Where,

following an investigation, a director believes that an adult is an adult in

need of protective intervention, the director

(

a) may

(

i) report the matter to the police,

(ii) make an application for a warrant to remove

the adult to a place of safety under

section 23,

(iii) remove the adult to a place of safety without

a warrant under the authority of subsection 23(3), or

(iv) provide or arrange for support services

consistent with the service plan prepared under paragraph (b); and

(

b) shall

(

i) prepare a service plan for that adult based on

criteria set by the minister, and

(ii) report that belief to the provincial director.

(2) Where the provincial director receives a

report under subparagraph (1)(b)(ii), the provincial director may

(

a) report the matter to the police; or

(

b) apply to the court for an order, as

appropriate.

Application for

declaration

(1) Where

the provincial director receives a report under

section 20 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) A hearing under this

section shall be held

within 30 clear days of the filing of the application under subsection (1).

(3) A capacity assessment shall accompany an

application under this section.

(4) Notice of the time and place of a hearing

under this

section shall be served not later than 10 clear days after the date

for holding the hearing is obtained from the court

(

a) on the adult who is the subject of the application;

and

(

b) where the adult who is the subject of the

application resides

(

i) in a personal care home, on the licensee of

the personal care home,

(ii) in a community care facility, on the owner of

the community care facility, or

(iii) in a long term care facility, on the

administrator of the long term care facility.

(5) The provincial director shall notify the

following persons of the date of a hearing under this section:

(

a) a person with whom the adult who is the

subject of the application resides, if appropriate; or

(

b) the next of kin of the adult who is the

subject of the application, and where the next of kin are determined to be the children

of the adult, efforts shall be made to notify all of those children.

(6) The provincial director may make an

application to dispense with the requirement for notice under subsection (5),

and the court may make the order considered appropriate in the circumstances.

(7) Where an application is made under subsection

(1), a judge may make an order under

section 22 .

(8) Not later than 5 clear 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.

(9) Not later than 2 clear days before the hearing

under this section, the persons to whom a copy of a plan has been given under

subsection (8) may respond to the plan and file an alternate written plan with

the court and provide a copy to the provincial director.

(10) 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 he or she so desires.

(11) Notwithstanding another provision of this

section, where an application is made further to an emergency intervention

under

section 23, notice required under this

section may be given as soon as

practicable, and the lack of notice does not impair an application under this

section.

(12) The onus of proving the adult is an adult in

need of protective intervention is on the provincial director.

Order of court

(1) Upon

hearing an application under

section 21, where

a judge finds that the adult is an adult in need of protective intervention,

the judge may so declare and may, where it appears to him or her in the best interests

of that adult, make an order

(

a) that the adult

(

i) continue to live independently subject to supervision

by a director,

(ii) remain where the adult is living in the care

and custody of the person in whose care he or she may be, subject to supervision

by a director,

(iii) be removed to the home of some suitable

person and committed to the care and custody of that person, subject to supervision

by a director, or

(iv)

committed to the care and custody of the provincial director, who in his or her

discretion may make decisions on behalf of the adult, including health care decisions;

and

(

b) 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.

(2) An order made under subparagraphs (1)(a)(ii) or

(iii) may contain conditions which apply to the person with whom the adult is

placed, but shall not contain conditions which apply to the provincial

director, a director, a social worker, an authority or the department.

(3) An order made under subparagraph (1)(a)(iv) shall

not contain conditions.

(4) 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 paragraphs

(

a) or (

b) an opportunity of being 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.

(5) The order under subsection (4) is authority to

the person by whom the pension or other income is payable to make the payment

so 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.

(6) For the purpose of subsections (4) and (5),

"income" includes pension income, savings and other assets.

(7) 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; or

(

c) cease all contact or association with the

adult in need of protective intervention and have no further involvement in his

or her affairs, business dealings or estate.

(8) 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.

(9) Where an adult has been declared an adult in

need of protective intervention, the provincial director shall send a notice to

the public trustee in accordance with

section 22.1 of the Mentally Disabled Persons Estates Act.

Emergency intervention

(1) Where

a director or social worker believes

(

a) that an adult is in need of protective

intervention; and

(

b) a less intrusive course of action that would

adequately protect the adult is not available,

the director or social worker shall file

an application with the court for a warrant to remove that adult.

(2) Where satisfied on the basis of the director's

or social worker's sworn information that there are reasonable grounds to believe

that

(

a) an adult is in need of protective

intervention; and

(

b) a less intrusive course of action that would

adequately protect the adult is not available,

a judge may issue a warrant authorizing

the director or social worker to enter a premises or vehicle or board a vessel

or aircraft, by force if necessary, to remove the adult.

(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 request 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 he or she is living to another place and it appears to a director or

social worker that there is danger of loss of, or damage to, property of the

adult because of the adult's temporary or permanent inability to deal with his

or her property, and that no other suitable arrangements have been or are being

made for the purpose, it is the duty of the director or social worker to take

reasonable steps to prevent or mitigate the loss or damage.

(9) A director or social worker has power at

reasonable times to enter premises which immediately before the adult's removal

were the adult's place of residence or usual place of residence, 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 him or her, reasonable expenses

incurred by the director or social worker under subsection (9).

(11) The provincial director shall, within 2

clear days of an adult being removed

(

a) under the authority of a warrant issued under

subsection (2); or

(

b) under the authority of subsection

(3) make an application to a court under

section 21 and a court shall hear that application within 2 clear days of the

making of the application.

Emergency intervention-financial

affairs

(1) Where

the provincial director reasonably believes that an urgent situation exists in

which a person who is evidently an adult in need of protective intervention but

has not yet been declared as such

(

a) is unable to manage his or her affairs or

assets; and

(

b) there is immediate danger of substantial

damage to or substantial loss of those assets,

the public trustee may, at the request of the

provincial director, intervene in a manner and to the degree that may be

demonstrably necessary to temporarily prevent or contain that loss or damage.

(2) Where the public trustee takes the action

referred to in subsection (1), he or she shall, within 3 clear days of taking

that action, apply to a court and the court shall hear that application within

5 clear days of the making of the application.

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, where the judge is a judge of the

(

a) Provincial Court, to the Trial Division; and

(

b) Trial Division, to the Court of Appeal,

and the provisions of the Judicature Act and the Rules of the Supreme Court, 1986 shall

govern the proceedings on the appeal.

(2) The Trial Division 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) may

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 video-taped;

(

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) shorten 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 his or her designate shall prepare a service plan for every adult

who is declared to be an adult in need of protective intervention.

(2) A

schedule of review shall be incorporated

into every service plan, and 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 in need of

protective intervention has the right to participate in the development of his

or her service plan, including amendments to it.

(5) Where a person was declared to be a neglected

adult under the Neglected Adults Welfare

Act , a service plan for that person shall be prepared or updated within 6

months of the coming into force of this Act.

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 regional health

authorities with duties under this Act.

Confidentiality

(1) A

person employed in the administration of this Act shall maintain

confidentiality with respect to all matters that come to his or her 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 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

and the information released under this

section shall only be used for the purpose for which it was released.

(2) The department or an authority is not liable

for damages caused to a person as a

result of the release of information under subsection (1).

(3) A person shall be denied access to information

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) where 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.

(4) Where 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.

(5) 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 referral under

section 12; or

(

b) there are reasonable grounds to believe that

the disclosure might result in physical, emotional or financial harm to that

person or another person.

Good faith protection

30. 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

32. 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

33. The

minister may make regulations respecting

(

a) those persons who may conduct assessments of

capacity under

section 6 ;

(

b) the disclosure of information under paragraph 29(1)(h);

(

c) the required components of a service plan;

(

d) persons or classes of persons who may act as

investigators under this Act; and

(

e) generally, to give effect to the purpose of

this Act.

PART IV

TRANSITIONAL, REPEAL AND COMMENCEMENT

Transitional

34. 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 a neglected adult

under the Neglected Adults Welfare 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.

NLR 11/07 Amdt.

Section 5 of the Access to Information Regulations is amended by adding immediately

after paragraph (

a) the following:

(a.1)

section 29 of the Adult Protection Act;

SNL1995 cA-4.1

Amdt.

36. Subsections 10(3), (4) and (5) of the Advance Health Care Directives Act are

repealed and the following substituted:

(3) Notwithstanding subsection (1), where a person

has indicated in an advance health care directive that he or she does not wish

an individual to act as his or her substitute decision maker, the individual

may only act as the substitute decision maker where he or she is the person's

guardian appointed by the court or the Provincial Director of Adults in Need of

Protective Intervention under the Adult

Protection Act.

(4) Notwithstanding subsection (1), a substitute

decision maker referred to in that subsection, other than a court appointed

guardian, the Provincial Director of Adults in Need of Protective Intervention

under the Adult Protection Act , or a

health care professional, may not act as a substitute decision maker unless he

or she has had personal involvement with the incompetent person at some time

during the preceding 12 months.

(5) A substitute decision maker other than a court

appointed guardian, the Provincial Director of Adults in Need of Protective

Intervention under the Adult Protection

Act or health care professional may apply to the Trial Division to shorten

or waive the 12 month requirement under subsection (4).

RSNL1990 cJ-4

Amdt.

37. Subsection 43.9(1) of the Judicature Act is amended by adding immediately after paragraph (

l) the following:

(l.1) protective intervention matters relating to

adults under the Adult Protection Act;

RSNL1990 cM-10

Amdt.

38. The Mentally

Disabled Persons' Estates Act is amended by adding immediately after

section 22 the following:

Notice to be sent

to public trustee

22.1

(1) A

director appointed under the Adult

Protection Act shall, in accordance with subsection 22(9) of that Act, notify

the public trustee where a person has been declared to be an adult in need of

protective intervention under that Act, and the notification shall contain

(

a) the name, address and, where known, the age of

that person;

(

b) the date the person was declared to be an

adult in need of protective intervention;

(

c) the names, known to the director, of members

of the immediate family and other close relatives of that person; and

(

d) information which the director may possess

that could assist the public trustee in locating property owned or held by that

person.

(2) A notice which is sent under subsection

(1) shall be sent within 14 days after the date the person was declared to be an

adult in need of protective intervention.

(3) The public trustee is the guardian of the estate

of a person referred to in subsection (1) from the date on which he or she

receives the notice sent to him or her under that subsection as

if he or she had been appointed guardian under subsection 3(1), and the

public trustee is the guardian of that estate until

(

a) the court or a judge makes an order appointing

another person to be the guardian or confirming the appointment of a person who

had been appointed guardian before the public trustee received the notice; or

(

b) he or she is discharged by the court or a

judge under

section 19.

NLR 18/08 Amdt.

(1) Paragraph 4(

l) of the Regional Health Authorities Regulations

is repealed and the following substituted:

(

l) adults in need of protective intervention; and

(2) Subsection 7(1) of the regulations is

repealed.

RSNL1990 cN-3 Rep.

40. The Neglected

Adults Welfare Act is repealed.

Commencement

41. This Act comes into force on a day to be proclaimed

by the Lieutenant-Governor in Council.

William E.

Parsons, Queen's Printer