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{{LSLAP Manual TOC|expanded = guardianship}}
== '''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 ''' ==
:'''NOTE:''' For the purposes of this manual, there is no distinction between “mental capacity”, “capacity” and “capability”. The terms are used interchangeably.
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 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) of the PAA, an adult is considered incapable of understanding the nature and consequences of an EPOA if the adult cannot understand all of the following:
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.
According to s 3 of the HCCFA, an adult is presumed capable, unless proven otherwise, when:
*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).
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*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:
* Making, changing or revoking a s 7 or s 9 RA
* Making decisions about personal care, health care and legal matters
* Conducting the routine management of their own financial affairs
* 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.
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.
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.
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