== '''A. The Scope of Guardianship and Substitute Decision-Making Law in BC ''' ==

Adult guardianship laws apply to adults over the age of 19. There are four key legal issues addressed in adult guardianship or substitute decision-making legislation:

#'''Mental Capacity:''' : The law presumes that an adult is capable of making decisions and provides statutory tests for determining incapability in different contexts. #'''Advance Planning Documents:''' : The law allows a capable adult to appoint a substitute decision-maker for financial or health care decisions in two types of legal documents: #* '''Enduring Power of Attorney (EPOA)''': for financial decisions only); and #* '''Representation Agreement (RA)''' for health care consent, personal care decisions, and routine financial decision-making). #* The law also allows a capable adult to provide instructions giving or refusing consent to specific health care in an '''Advance Directive'''. #'''Guardianship:''' : Where an adult is incapable and does not have Advance Planning Documents in place, the court may appoint a guardian (called a Committee “committee of Estate estate” or Committee “committee of Personperson”) to act on behalf of an incapable adult. Under the ''Adult Guardianship Act'', RSBC 1996, c 6 [AGA ] the Public Guardian and Trustee (PGT) may also be appointed Committee committee of Estate estate by a statutory process. This non-court process requires a health authority designate to issue a certificate of incapacity). #*NOTE: Effective December 1, 2014 Part 2.1 of the AGA replaced the ''Patients Property Act'', RSBC 1996, c 349 [PPA ] rules governing the process for issuing and terminating a certificate of incapacity. Under the new rules, when a certificate is issued the Public Guardian and Trustee PGT becomes a “statutory property guardian”. However, the PPA (effective December 1, 2014) defines a “committee” to include a statutory property guardian under the AGA and the PPA applies except for the rules governing reassessment and ending the authority. Note also that if a certificate was issued before Dec December 1, 2014 under the PPA, the AGA applies for purposes of the new rules for reassessments and termination. #'''Abuse, Neglect and Self-Neglect:''' : The law establishes a legal framework for Designated Agencies to receive reports and respond when adults experience abuse, neglect or self-neglect and need support and assistance to protect themselves from further harm. The law also authorizes the Public Guardian and Trustee PGT of BC to investigate concerns about financial abuse, neglect and self-neglect when it has reason to believe the adult is not capable, and to take steps to protect assets in urgent situations.

Under each of these areas of the law, it is crucial that substitute decision-makers, court-appointed guardians, legal and financial advisors, social workers and health care providers consult with the adult to determine how to act in accordance with the person’s their wishes, values and beliefs. Substitute decision-maker(s) and guardian(s) are legally obligated to act according to the wishes, values and beliefs of the adult who appoints them or is in need of a guardian. The guiding principle behind BC’s adult guardianship legislation is that the adult is presumed to be capable, and should receive support to make decisions. The key is to foster the independence of the adult through support, meaning involving the adult to the greatest degree possible when making decisions on their behalf.

== '''B. Mental Capacity ''' ==

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(PAA s 11). A person may become incapable at a point in his or her their 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 is no longer capable of making financial or health care decisions may have a guardian (called a Committee of Estate or Committee of the Person) appointed by the courts to make decisions. The Public Guardian and Trustee may also become a Statutory Property Guardian if a certificate of incapability is issued by a “health authority designate” stating the adult is incapable of managing his or her financial affairs. Note that pursuant to s 9 of the PPA an adult may nominate a committee and the nomination document may be one of an adult’s Advance Planning Documents. #An adult may also make an advance directive that consents to, or refuses, specified health care.

# An adult who has made a 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 ,).#* Note: an adult may also make an Advance Directive, maintains the right that consents to make decisions about legal, financial and or refuses specified health care matters, even after these legal documents are made. Once the # An adult who is incapable, no longer capable of making financial or health care decisions may have a guardian (called a committee of estate or committee of the person) appointed by the substitute decision-maker has a legal duty courts to act in accordance with the adult’s instructions, values, wishes and beliefs, regardless of capacitymake decisions. (s 19(2), PAA; s 16, RAA; s 19, HCCFA). The substitute decision maker Public Guardian and Trustee may also has become a duty, to Statutory Property Guardian if a certificate of incapability is issued by a “health authority designate” stating the extent reasonable, adult is incapable of managing their financial affairs. #* Note that pursuant to foster the independence s 9 of the PPA an adult may nominate a committee and encourage the adult's involvement in any decision-making that affects the adultnomination document may be one of an adult’s Advance Planning Documents.

The appropriate test for capability An adult who has made a Power of Attorney, Representation Agreement or Advance Directive, maintains the right to make an Advance Planning document decisions about legal, financial and health care matters, even after these legal documents are made. Once the adult is set out incapable, the substitute decision-maker has a legal duty to act in accordance with the relevant legislationadult’s instructions, values, wishes and beliefs, regardless of capacity (s 19(2), ''Power of Attorney Act'', RSBC 1996, c 370 [PAA]; s 16, ''Representation Agreement Act'', RSBC 1996, c 405 [RAA]; s 19, ''Health Care (Consent) and Care Facility (Admission) Act'', RSBC 1996, c 181 [HCCFA]). The statutory tests for incapability in each statute are summarized below. In many casessubstitute decision maker also has a duty, to the extent reasonable, Advance Planning Documents will specify what is required to determine incapability foster the independence of the adult and encourage the adult's involvement in order to bypass a court processany decision-making that affects the adult.

=== 1The statutory tests for incapability are summarized below. Power of Attorney (POA) === In many cases, Advance Planning Documents will specify what is required to determine incapability to bypass a court process.

As mentioned above, an adult is presumed to have capacity, unless proven otherwise=== ''1. 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 (EPOAPOA). '' ===

Difficulties or barriers in communicating are not adequate grounds for determining that As mentioned above, an adult is incapablepresumed to have capacity, unless proven otherwise. InsteadAccording to s 11 of the PAA, incapacity an adult is determined by a more thorough assessmentpresumed capable of making decisions about financial affairs and understanding the nature and consequences of making, often as specified in Advance Planning Documents (i. e. a Springing POA will normally specify under what conditions a person is considered incapablechanging, such as on the basis of medical opinions from two doctors or by revoking an assessment Enduring Power of the court. Attorney (EPOA).

The PAA sets out a specific statutory test of incapability Difficulties or barriers in s 12, which reaffirms communicating are not adequate grounds for determining that an adult is presumed capable to make an EPOAincapable. Instead, unless there incapacity is evidence that the adult is unable to understand the nature and consequences of the EPOAdetermined by a more thorough assessment, often as specified in Advance Planning Documents (i.e. According to s 12(2), an adult a Springing POA will normally specify under what conditions a person is considered incapable of understanding , such as on the nature and consequences basis of medical opinions from two doctors or by an EPOA if the adult cannot understand all assessment 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 mattercourt).

:'''NOTE:''' This is a complex * The property the adult has and rapidly changing area of its approximate value* The obligations the adult owes to their dependants* That the adult’s attorney will be able to do on the law. This above statutory test for incapacity adult’s behalf anything in s 12(2) respect of the PAA came into effect on September 1adult’s financial affairs that the adult could do if capable, except make a will, 2011. This test is significantly broad subject to the conditions and restrictions set out in scope the power of attorney*That, unless the attorney manages the adult’s business and appears to only apply to an EPOA. Howeverproperty prudently, it remains to be seen how this test will be interpreted by their value may decline*That the attorney might misuse the attorney’s authority*That the courts. As of July 06adult may, 2017if capable, there has been no judicial interpretation revoke the enduring power of this test. attorney* Any other prescribed matter

=== :'''Note''': This is a complex and rapidly changing area of the law. The above statutory test 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 June 21, 2019, there has been no judicial interpretation of this test. The case of ''Serban v Serban'' 2016 BCSC 2419, demonstrates how incapacity is approached in court proceedings. Health Care Consent ===

The === ''2. 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):'' ===

The ''Health Care (Consent) and Care Facility (Admission) Act'' states that every adult who is capable of giving or refusing consent to health care has the right to (s 4): *give Give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death;*select Select a particular form of available health care on any grounds, including moral or religious grounds;*revoke Revoke consent;*expect Expect that a decision to give, refuse or revoke consent will be respected; and *be Be involved to the greatest degree possible in all case planning and decision making.

*givingGiving, refusing or revoking consent to health care; and*deciding Deciding to apply for admission to a care facility, accepting a facility care proposal, or moving out of a care facility.

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 BCSC 165 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.

=== ''3. Temporary Substitute Decision Makers '' ===

If a heath health care provider determines that an adult is not capable of consenting to health care that is being proposed, the health care provider they 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 (HCCFA 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 Directive 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 committee of Personperson).

*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*person immediately related by marriage (includes in-laws or step-children) 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 (HCCFA s 17 and 19). 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)|V. H. 1: Temporary Substitute Decision-makers (TSDM)]]''' in this chapter below.  === ''4. Representation Agreement (RA)'' === An adult who meets the requisite mental capacity test may create a Representation Agreement (RA). An RA is a legally-binding document that appoints a substitute or supportive decision-maker and provides instructions with respect to health care decisions, personal care, and/or routine financial decisions. See s 7 and 9 of the RAA. Section 7 and 9 RAs deal with different types of decisions (see section '''[[Representation Agreements (15:V)|V. A: Types of Representation Agreements]]''') and are subject to 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:

A TSDM An adult who 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 diminished capacity may still be extended upon written confirmation by the health care provider (ss 17 and 19, HCCFA). If the health care provider has reasonable grounds allowed to believe that the adult patient may be capable during this time periodmake, the health care provider must again determine the adult’s capability in accordance with change or revoke a s 7 of RA, even when 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 incapable of: (RAA s 8(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 The statutory test may create to determine incapacity for a Representation Agreement (standard s 7 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 set out in s 7 and 9 8(2) of the Representation Agreement Act, RSBC 1996, c 405 [RAA]. Section In determining whether an adult is incapable of making a s 7 and 9 RAs deal with different types RA, all relevant factors are considered. Examples of decisions (see section V. Arelevant factors mentioned in the statute include: Types of Representation Agreements) and are subject to distinct different mental capacity standards.

In British Columbia, an * Whether the adult is presumed communicates a desire to have capacitya representative make, help make, unless proven otherwise. According to s 3(1) 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 RA or changing or revoking any of the [RAA]provisions means that the representative may make, an or stop making, decisions or choices that affect the adult* Whether the adult has a relationship with the representative that is presumed to be capable of: characterized by trust

*The statutory test to determine incapability for non-standard, s 9 RAs, is set out in s 10 of the RAA. An adult is incapable of making, changing or revoking a s 7 or s 9 RA;*making decisions about personal care, health care if the adult is “incapable of understanding the nature and legal matters; and *conducting consequences of the routine management of their own financial affairsproposed agreement”.

An adult who has diminished capacity may still be allowed to make, change or revoke For more information and an explanation of the differences between a s 7 RA and a s 9 RA, even when the adult is incapable ofrefer to section '''[[Representation Agreements (15: (s 8(1), RAAV)|V. A: Types of Representation Agreements]]''' in this chapter.

*making a contract;*managing his or her health care , personal care or legal matters; or *the routine management of his or her financial affairs=== ''5. Advance Directive (AD)'' ===

The statutory test A capable adult may also choose to determine incapacity for make an Advance Directive (AD), which is a standard legally-binding document that provides instructions with respect to giving or refusing consent to health care treatment or procedures. According to s 7 RA is set out in s 8(2) 19.1 of the RAA. In determining whether HCCFA, an adult is presumed to have capacity to make an AD, unless there is evidence that they are incapable of making a s 7 RA, all relevant factors must be considered. The legislation provides four examples understanding the nature and consequences of factors that may be relevantthe AD. In any given situation, there may be other factors that will need to be considered. The examples are:

*whether the An adult communicates a desire to have a representative make, help make, or stop making decisions;*whether is incapable of understanding the adult demonstrates choices nature and preferences and can express feelings consequences 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 makingan AD, decisions or choices that affect if the adult; and*whether the adult has a relationship with the representative that is characterized by trust. cannot understand:

* The statutory test to determine incapability for non-standard, s 9 representation agreements, is scope and effect of the health care instructions set out in s 10 the AD* That a TSDM will not be chosen by the health care provider to make decisions on behalf of the RAA. An adult is incapable of making a s 9 RA if about the adult is “incapable of understanding health care described in the nature and consequences AD except in circumstances set out in s 19.8 of the proposed agreement”. HCCFA

For more information about the requirements and an explanation scope of the differences between a s 7 RA and a s 9 RAADs, refer to section '''[[Representation Agreements Advance Directives (15:VVI)#A. Types of Representation Agreements | section V.AVI: Types of Representation AgreementsAdvance Directives]] ''' in this chapter.

=== 5:'''NOTE''': Health care consent is a complex and rapidly changing area of the law. Advance Directive ( Care should be taken in assessing capacity to make an RA or AD) ===and assessing the legal validity of these documents.

A capable adult may also choose to make an Advance Directive (AD), which is a legally-binding document that provides instructions with respect to giving or refusing consent to health care treatment or procedures=== ''6. According to s 19.1 of the HCCFA, an adult is presumed to have capacity to make an AD, unless there is evidence that he or she is incapable of understanding the nature Designated Agencies – Support and consequences of the AD. Assistance'' ===

An adult is incapable of understanding Another area where the nature and consequences issue of capacity may be raised is when an ADadult is experiencing abuse, if the adult cannot understand: *the scope and effect neglect or self-neglect. Under Part 3 of the health care instructions set out in the AD; and *that AGA anyone can make a report to a temporary substitute decision-maker (TSDM) Designated Agency who will meet with the adult, investigate whether or not be chosen by the health care provider adult is experiencing abuse, neglect or self-neglect, and, if necessary, establish a support and assistance plan to make decisions on behalf of protect the adult about the health care described in the AD except in circumstances set out in s 19.8 of the HCCFA.

For more information about the requirements An adult in need of support and scope of ADsassistance does not necessarily lack mental capacity. In fact, refer according to [[Advance Directives s 3(15:VI1) | section VI: Advance Directives]] in this chapterof the AGA, an adult is presumed to be capable of making decisions about personal care, health care and financial affairs, regardless of whether the adult is vulnerable to abuse, neglect or self-neglect.

:An adult’s way of communicating with others is not grounds for determining that an adult is incapable. Instead, the statutory tests of incapacity apply. For applications concerning guardianship, a formal assessment of capacity must be done in accordance with the ''Adult Guardianship (Abuse and Neglect) Regulation'NOTE:''' Health care consent is a complex and rapidly changing area , BC Reg 13/2011 [AGR]. According to s 3(4) of the law. Care should be taken in assessing AGR, a capacity to make an RA or AD and assessing assessor must base the legal validity decision of these documents. incapability on whether the adult understands:

=== 6. Designated Agencies – Support * The services described in the support and Assistance ===assistance plan* Why the services are being offered to the adult* The consequences to the adult of not accepting the services

Another area where The AGA states that the issue adult in need of capacity may support and assistance must be raised is when an adult is experiencing involved in decisions about how to prevent abuse, neglect or self-neglect. Under Part 3 of the AGA, anyone can make a report It is also important to a Designated Agency who will meet remember that an adult with capacity has the adult, investigate whether legal right to refuse support or not the adult is experiencing assistance. For more information about responding to abuse, neglect or self-and neglect, refer to section '''[[Adult Abuse and, if necessary, establish a support Neglect (15:VIII)|VIII: Abuse and assistance plan to protect the adultNeglect]]''' in this chapter.

An adult who is in need of support and assistance does not necessarily lack mental capacity== '''C. In fact, according to s 3(1) of the AGA, an adult is presumed to be capable of making decisions about personal care, health care and financial affairs, regardless of whether the adult is vulnerable to abuse, neglect or self-neglect. Advance Planning Documents''' ==

An adult’s way of communicating with others is not grounds for determining that an adult is incapablewho has mental capacity can execute various documents to appoint another person to make financial and health care decisions on their behalf. Instead These documents may come into effect immediately, the statutory tests of incapacity applyor only when certain events come to pass (e.g. For applications concerning guardianship, a formal assessment upon loss of capacity must be done in accordance with the ''Adult Guardianship (Abuse and Neglect) Regulations'' [AGR]. According to s 3(4) of the AGR, a capacity assessor must base the decision of incapability on whether the adult understandsas follows: *the services described in the support and assistance plan; *why the services are being offered to the adult; and *the consequences to the adult of not accepting the services.

The AGA states that the adult who is in need * '''Power of support and assistance must be involved in decisions about how to seek and provide whatever support and assistance is needed to prevent abuse or neglect. It is also important to remember that Attorney (POA)''': an adult (the ‘adult’ in legislation) with capacity has may choose to appoint another person (called the legal right ’attorney’) to refuse support or assistanceact on their behalf, only in matters concerning financial affairs (e. For more information about responding to abuse and neglectg. property, finance, banking, business, refer to [[Adult Abuse and Neglect (15:VIIIetc) | section VIII: Abuse and Neglect]] in this chapter.

== C* '''Representation Agreement (RA)''': an adult with the requisite mental capacity may choose to appoint another person (called a ‘representative’) to act as a substitute decision-maker to act on their behalf for both s 7 and s 9 RAs (For differences between s 7 and s 9 RAs see Section '''[[Representation Agreements (15:V)|V. Advance Planning Documents == A: Types of Representation Agreements]]''').

An adult who has mental capacity can execute various documents to appoint another person to make financial and health care decisions on his or her behalf. These documents may come into effect immediately, or only when certain events come to pass (e.g. upon loss of capacity), as follows: *'''Power of Attorney (POA):''' an adult (called the ‘adult’ in the legislation) with capacity may choose to appoint another person (called the Attorney) to act on his or her behalf, only in matters concerning financial affairs (e.g. property, finance, banking, business, etc). *'''Representation Agreement (RA):''' an adult with the requisite mental capacity may choose to appoint another person (called a Representative) to act as a substitute decision-maker or as a supportive decision-maker to act on his or her behalf for both s 7 and s 9 RAs (For differences between s 7 and s 9 RAs see [[Representation Agreements (15:V)#A. Types of Representation Agreements | section V.A: Types of Representation Agreements]]). *'''Advance Directive (AD):''' : an adult with capacity may choose to give or refuse consent to health care or give health care instructions in an AD, which will only come into effect when the adult is incapable and in need of health care.

In BC, various laws define what is required to validly execute each of these documents, the duties and powers held by the appropriate substitute decision-maker(s), and the legal authority or scope of decisions made.

For more information on preparing documents, consult the '''Appendix ''' or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section '''[[Governing_Legislation_and_Resources_for_Adult_Guardianship_Governing Legislation and Resources for Adult Guardianship (15:II)#C. Resource Organizations | II. CD: Resource Organizations]] ''' of this chapter.