Difference between revisions of "Introduction to Adult Guardianship and Substitute Decision-Making (15:I)"

In BC the law presumes that an adult is capable to make personal and legal decisions (e. g. decisions regarding health, life, property, assets, financial arrangements, etc. ), unless there is evidence to the contrary. A person may become incapable at a point in his or her life due to illness, disability or accident. If an adult is, or becomes incapable, another person (or persons) can become the substitute decision-maker(s), who acts on the wishes and values of the incapable adult. A substitute decision-maker can be appointed in either of the following ways:

#an adult who meets the appropriate test for mental capacity can name the substitute decision-maker(s) in an Advance Planning Document (e. g.  an Enduring Power of Attorney or a Representation Agreement,); or  

An adult who has made a Power of Attorney, Representation Agreement or Advance Directive, maintains the right to make decisions about legal, financial and health care matters, even after these legal documents are made. Once the adult is incapable, the substitute decision-maker has a legal duty to act in accordance with the adult’s instructions, values, wishes and beliefs, regardless of capacity. (s 19(2), PAA; s 16, RAA; s 19, HCCFA).   The substitute decision maker also has a duty, to the extent reasonable, to foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult.  

As mentioned above, an adult is presumed to have capacity, unless proven otherwise. According to s 11 of the Power of Attorney Act, RSBC 1996, c 370 [PAA], an adult is presumed capable of making decisions about financial affairs and understanding the nature and consequences of making, changing, or revoking an Enduring Power of Attorney (EPOA).  

Difficulties or barriers in communicating are not adequate grounds for determining that an adult is incapable. Instead, incapacity is determined by a more thorough assessment, often as specified in Advance Planning Documents (i. e. a Springing POA will normally specify under what conditions a person is considered incapable, such as on the basis of medical opinions from two doctors or by an assessment of the court. ).  

The PAA sets out a specific statutory test of incapability in s 12, which reaffirms that an adult is presumed capable to make an EPOA, unless there is evidence that the adult is unable to understand the nature and consequences of the EPOA.   According to s 12(2), an adult is considered incapable of understanding the nature and consequences of an EPOA if the adult cannot understand all of the following:

*the property the adult has and its approximate value;

*the obligations the adult owes to his or her dependants;  

*that the adult’s attorney will be able to do on the adult’s behalf anything in respect of the adult’s financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;  

*that, unless the attorney manages the adult’s business and property prudently, their value may decline;  

*that the attorney might misuse the attorney’s authority;  

*that the adult may, if capable, revoke the enduring power of attorney; and

*any other prescribed matter.

 

:'''NOTE:''' This is a complex and rapidly changing area of the law. This above statutory test for incapacity in s 12(2) of the PAA came into effect on September 1, 2011. This test is significantly broad in scope and appears to only apply to an EPOA. However, it remains to be seen how this test will be interpreted by the courts. As of July 06, 2017, there has been no judicial interpretation of this test.

The Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181 [HCCFA]

states that every adult who is capable of giving or refusing consent to health care has the right to (s 4):

 

*give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death;

*select a particular form of available health care on any grounds, including moral or religious grounds;

*revoke consent;

*expect that a decision to give, refuse or revoke consent will be respected; and  

According to s 3 of the HCCFA, an adult is presumed capable, unless proven otherwise, when:  

 

Difficulties or barriers in communicating are not adequate grounds for deciding that an adult is incapable. For example, in Bentley (Litigation guardian of) v. Maplewood Seniors Care Society, [2014] BCJ No 181 at paragraph 55 Justice Greyell stated that the legislature “precluded the possibility that a challenge to an adult's capability could be premised on her method of communicating”.   Instead, incapacity is determined in accordance with s 7 of the HCCFA, which requires a health care provider to decide whether or not the adult understands the information given by the health care provider and that the information applies to the situation of the adult in need of health care.

If a heath care provider determines that an adult is not capable of consenting to health care that is being proposed, the health care provider will need to obtain consent from another adult, who is able to give or refuse consent on behalf of the incapable adult. The health care provider can get consent from a substitute decision-maker named in a Representation Agreement. An individual may also document consent or refuse consent in advance through an Advance Directive. With the exception of the provision of emergency health care (s 12(1), HCCFA), the health care provider will need to get consent from a Temporary Substitute Decision-maker (TSDM), if neither a Representation Agreement nor an Advance Direction are in place (or the AD does not address the medical issue for which consent is needed), and there is no appointed guardian (called a Committee of Person).  

The HCCFA provides a hierarchical, default list of TSDMs, as follows (s 16):

 

*spouse/partner (only if married or in a marriage-like relationship)

*adult child (over 19 years old)

*parent

*sibling

*grandparent

*grandchild

*other relatives by birth or adoption (not in-laws or step-children)

*close friend

 

A TSDM has authority to decide whether to give or refuse consent, in accordance with the adult patient’s wishes, values and beliefs. The authority of a TSDM to give or refuse consent is generally valid for 21 days, but this time period may be extended upon written confirmation by the health care provider (ss 17 and 19, HCCFA). If the health care provider has reasonable grounds to believe that the adult patient may be capable during this time period, the health care provider must again determine the adult’s capability in accordance with s 7 of the HCCFA. If an adult patient is deemed to be capable again, consent must be given or refused by the adult patient.  

For more information, refer to section [[Representation Agreements (15:V)#1. Temporary Substitute Decision-makers (TSDM) | V.H.1: Temporary Substitute Decision-makers (TSDM)]] in this chapter.

An adult who meets the requisite mental capacity test may create a Representation Agreement (RA), which is a legally-binding document that appoints a substitute or supportive decision-maker and provide instructions with respect to health care decisions, personal care, and/or routine financial decisions. See s 7 and 9 of the Representation Agreement Act, RSBC 1996, c 405 [RAA]. Section 7 and 9 RAs deal with different types of decisions (see section V. A: Types of Representation Agreements) and are subject to distinct different mental capacity standards.  

 

In British Columbia, an adult is presumed to have capacity, unless proven otherwise. According to s 3(1) of the [RAA], an adult is presumed to be capable of:  

 

*making, changing or revoking a s 7 or s 9 RA;

*making decisions about personal care, health care and legal matters; and  

An adult who has diminished capacity may still be allowed to make, change or revoke a s 7 RA, even when the adult is incapable of: (s 8(1), RAA)

 

*managing his or her health care , personal care or legal matters; or  

*the routine management of his or her financial affairs.

 

*whether the adult communicates a desire to have a representative make, help make, or stop making decisions;

*whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;

*whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the Representative may make, or stop making, decisions or choices that affect the adult; and

*whether the adult has a relationship with the representative that is characterized by trust.

The statutory test to determine incapability for non-standard, s 9 representation agreements, is set out in s 10 of the RAA. An adult is incapable of making a s 9 RA if the adult is “incapable of understanding the nature and consequences of the proposed agreement”.

:'''NOTE:''' Health care consent is a complex and rapidly changing area of the law. Care should be taken in assessing capacity to make an RA or AD and assessing the legal validity of these documents.