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Bill 32: Close But No Cigar

The Next Round of Guardianship Law Reform. Bill 32: Close But No Cigar. 16 th Annual John K. Friesen Conference Simon Fraser University May 12, 2006. Context. Late 1980s law reform initiative 1993 package Stevenson/Hogarth Phased approach 1999 amendments Selective proclamation

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Bill 32: Close But No Cigar

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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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