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Insights on Bill 32: Guardianship Law Reform at the 16th Annual John K. Friesen Conference

The 16th Annual John K. Friesen Conference at Simon Fraser University on May 12, 2006, focused on the latest revisions of the Guardianship Law Reform Bill 32. Key topics included amendments to the Adult Guardianship Act, the introduction of court-appointed and statutory guardianship, and changes in healthcare consent rules. Experts reviewed the history of guardianship reform from the late 1980s, discussed personal planning impacts, and highlighted the proposed changes for enduring powers of attorney and representation agreements, aiming to improve the legal framework for supporting vulnerable adults.

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Insights on Bill 32: Guardianship Law Reform at the 16th Annual John K. Friesen Conference

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  1. The Next Round of Guardianship Law Reform Bill 32:Close But No Cigar 16th Annual John K. Friesen Conference Simon Fraser University May 12, 2006

  2. Context • Late 1980s law reform initiative • 1993 package • Stevenson/Hogarth • Phased approach • 1999 amendments • Selective proclamation • Post proclamation amendment to the Representation Agreement Act • McClean report • 2002 health care consent amendments • BCLI reports • PGT’s recommendation for court and statutory guardianship reform (2004, 2005) • Consultations in 2004 and 2006

  3. Structure of Bill 32 • Part 1 – Adult Guardianship Act Amendments • A new Part 2 (court appointed guardians) • A new Part 2.1 (statutory property guardianship) • Amendments to Part 3 (support and assistance for abused and neglected adults) • Amendments to Part 4 (administrative and miscellaneous)

  4. Structure of Bill 32 (cont’d) • Part 2 – Planning Statutes Amendments • Amendments to Health Care (Consent) and Care Facility (Admission) Act • A new Part 2 of the Power of Attorney Act • Amendments to the Representation Agreement Act

  5. Structure of the Bill (cont’d) • Part 3 – Transition, repeals and consequentials • Repeal of the Patients Property Act • Consequential amendments to other laws

  6. PERSONAL PLANNING CHANGES UNDER BILL 32

  7. Health Care Consent • Most controversial aspect of Bill 32 was instructional advance directives: • Extension to non-emergency treatment • Acknowledgements • Declining to act • Interaction with personal guardian or representative

  8. Health Care Consent (cont’d) Bill 32 would have: • Added more individuals to TSDM ranked list: • Grandparents • Close friend • In-laws • Religious office holder • Clarified substitute’s role regarding post-emergency withdrawal of treatment that was started in an emergency • Clarified best interests considerations and interaction with values and beliefs

  9. Enduring Powers of Attorney Bill 32 would have: • Made enduring powers of attorney the primary instrument for planning for future incapacity (McClean Report) • Enduring Powers of Attorney prevailed if conflict or inconsistency with property representation agreement • Created capacity test that includes specific criteria that must be met • May “continue” or “spring” • Execution • Two witnesses (only 1 if a lawyer or notary) • Prohibited witnesses • Attorney must sign before acting • Duties • Gifting

  10. Enduring Powers of Attorney (cont’d) • Clarified termination • Resignation • Revocation • Suspension • Termination • Mandated PGT to review allegations of misconduct • Expanded Court orders to give directions • Clarified status extra-provincial enduring powers of attorneys

  11. Representation Agreement Amendments Bill 32 would have: • Property matters limited to routine financial by removing property matters from s.9 agreements (McClean report) • Permitted a regulation to “cap” amount of money that can be managed routinely under s.7 • Increased accessibility by eliminating mandatory consultation with lawyer for s.9 agreements • If both valid representation agreement and advance directive - representation agreement prevails

  12. COURT AND STATUTORY GUARDIANSHIP CHANGES UNDER BILL 32

  13. Court Guardianship Bill 32 would have: • New court and statutory guardianship law to replace the Patients Property Act • Court guardianship application • Service • Plain language document • Guardianship plans • Mediation • What must be demonstrated: • Incapacity • Decisions needed • Guardians assistance and protection required • Alternatives are insufficient • Balance of personal and property • Individualized orders

  14. Court Guardianship (cont’d) • Duties enumerated in Act, some existing but some new: • Foster independence of adult • Privacy • Comply with instructions made when capable • Gifting rules • Consider Code of Practice • Ties to Health Care (Consent) and Care Facility (Admission) Act decision making • Court reviews • Flexible – not fixed dates • Court may establish review date or on application by: • Guardian • Adult • Others • PGT • No hearing required if no objection filed • Hearing if objection filed

  15. Statutory Property Guardianship Under Bill 32: • No longer tied to Mental Health Act • Largely moves PGT 2004 guidelines on Certificates of Incapability from “best practice” into law • Certificate effective when signed by PGT • No statutory guardianship if enduring Power of Attorney granted unless Attorney not complying with duties • Enduring Power of Attorney suspended and may be terminated • Adult has right to 2nd assessment and to court review • PGT required to give the adult rights advice • Termination eased where no longer needed

  16. Statutory Property Guardianship (cont’d) • Reassessment required: • On discharge • Annually on request • Private person may apply to replace PGT as statutory property guardian • Guardianship plan required • If application suitable, PGT may: • Require security • Establish remuneration • Rescind appointment where necessary

  17. Guardians Appointed Outside BC Bill 32 would have required: • Where the adult remains a resident of the originating jurisdiction • Guardian from another province may register an Order under the Enforcement of Canadian Judgments and Decrees Act • Not supervised by the BC Public Guardian and Trustee • Replaces current OIC processes • The Public Guardian and Trustees in other Provinces have automatic authority • Non-Canadian Orders from prescribed jurisdiction may be confirmed

  18. Guardians Appointed Outside BC (cont’d) • Where the adult moves to BC • The Order may be converted by the BC Court into an Adult Guardianship Act Order • Once confirmed, the Adult Guardianship Act applies, including: • Powers • Duties • Passing of accounts and court reviews

  19. ABUSE, NEGLECT AND SELF-NEGLECT RESPONSE CHANGES UNDER BILL 32

  20. Improved Response in Cases of Abuse and Neglect Bill 32 would have: • Strengthened ability to keep confidential the identity of person reporting abuse • Extended: • Interim restraining orders from 30 to 90 days; • Support and assistance orders from 6 months to 1 year • PGT’s asset protection powers from 7 to 30 days • Temporary property guardianship up to 90 days

  21. TRANSITION AND CONSEQUENTIAL AMENDMENTS CHANGES UNDER BILL 32

  22. 23 Other Acts Amended • Bill 32 would have updated language to guardian from committee but also to recognize attorneys and representatives • Notable others: • Court Rules Act • Estate Administration Act • Notaries Act

  23. So What’s Next?

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