Admission to the Residential Care Facility - Revision history

Charmaine Spencer: /* References */

2016-01-11T18:38:39Z

References

Nate Russell at 19:54, 24 July 2014

2014-07-24T19:54:27Z

← Older revision		Revision as of 19:54, 24 July 2014
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	#See Representation Agreement Act.		#See Representation Agreement Act.
	#s. 1 Definitions. “ health care” mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes		#s. 1 Definitions. “ health care” mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes
			##(a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,
			##(b) a plan for minor health care that
			###(i) is developed by one or more health care Providers,
			###(ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and
			###(iii) expires no later than 12 months from the date consent for the plan was given, and
			##(c) participation in a medical research program approved by an ethics committee designated by regulation.

	{{REVIEWED \| reviewer = BC Centre for Elder Advocacy and Support, June 2014}}		{{REVIEWED \| reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
	{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}		{{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Nate Russell at 19:50, 24 July 2014

2014-07-24T19:50:45Z

Nate Russell: /* What Kind of Decision is Admission to a Residential Care Facility and Who Makes It? */

2014-07-24T19:45:26Z

What Kind of Decision is Admission to a Residential Care Facility and Who Makes It?

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 Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope.  It may be  possible to sever the  clauses into different agreements as  the substitute  decision maker’s authority may not cover both types of decisions.  Creating two separate documents may or may not improve the situation.
 {{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}}
 {{Legal Issues in Residential Care: An Advocate's Manual Navbox}}

Nate Russell at 23:03, 23 July 2014

2014-07-23T23:03:15Z

← Older revision		Revision as of 23:03, 23 July 2014
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	{{Legal Issues in Residential Care: An Advocate's Manual TOC}}		{{Legal Issues in Residential Care: An Advocate's Manual TOC\|expanded = chapter3}}

	:''“The question of consent should play a central role in discussions about admission to residential care facilities. Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. It follows that seniors themselves should be the ones who consent to their admission to a residential care facility unless their capacity to make this decision is unclear. In these cases, seniors’ capacity should be assessed.”''		:''“The question of consent should play a central role in discussions about admission to residential care facilities. Legally, adults are presumed to be capable of making decisions unless there is evidence to the contrary. It follows that seniors themselves should be the ones who consent to their admission to a residential care facility unless their capacity to make this decision is unclear. In these cases, seniors’ capacity should be assessed.”''

Admin at 15:47, 18 July 2014

2014-07-18T15:47:14Z

← Older revision		Revision as of 15:47, 18 July 2014
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	~~{{DEMOWARNING}}~~
	{{Legal Issues in Residential Care: An Advocate's Manual TOC}}		{{Legal Issues in Residential Care: An Advocate's Manual TOC}}

Marisa Chandler: /* Agreeing to the Admission */

2014-07-08T17:43:46Z

Agreeing to the Admission

← Older revision		Revision as of 17:43, 8 July 2014
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	This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.		This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.

	'''Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is ''not considered'' as sufficient legal authority to consent to admission or sign the admission agreement.'''([[Chapter Three Legal Issues in Residential Care References\|27]])		{\| class="wikitable"
			\|- valign=top
			\| width="100%" \|'''Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is ''not considered'' as sufficient legal authority to consent to admission or sign the admission agreement.'''([[Chapter Three Legal Issues in Residential Care References\|27]])
			\|}

	==Demonstrating Consent==		==Demonstrating Consent==

Admin: /* Assessing Capability to Consent? */

2014-07-03T23:06:38Z

Assessing Capability to Consent?

← Older revision		Revision as of 23:06, 3 July 2014
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	==Assessing Capability to Consent?==		==Assessing Capability to Consent?==
			[[File:Assessing capability of consent.jpg\| left \| frame \| link=\| <span style="font-size:60%;">Copyright www.shutterstock.com</span>]]
	As noted above, health authorities are required to assure “that a client’s capacity to provide informed consent to facility admission has been assessed. “Assess” may be interpreted in two ways in this policy context:		As noted above, health authorities are required to assure “that a client’s capacity to provide informed consent to facility admission has been assessed. “Assess” may be interpreted in two ways in this policy context:

Marisa Chandler at 23:04, 3 July 2014

2014-07-03T23:04:36Z

Marisa Chandler: Marisa Chandler moved page B. Admission to the Residential Care Facility to Admission to the Residential Care Facility

2014-07-03T17:33:24Z

Marisa Chandler moved page B. Admission to the Residential Care Facility to Admission to the Residential Care Facility

← Older revision	Revision as of 17:33, 3 July 2014
(No difference)

← Older revision		Revision as of 18:38, 11 January 2016
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	#HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.A Section: A General Description and Definitions. Effective: January 1, 2013.		#HCC Policy Manual. Chapter: 6 Residential Care Services Number: 6.A Section: A General Description and Definitions. Effective: January 1, 2013.
	#Ombuds, Best of Care. [page 234]		#Ombuds, Best of Care. [page 234]
	#For general information on private trustees for Old Age Security or Canada Pension Plan, see: http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp3506cpp&ln=eng (Last accessed ~~May 1~~, ~~2014~~).		#For general information on private trustees for Old Age Security or Canada Pension Plan, see: http://www.servicecanada.gc.ca/cgi-bin/search/eforms/index.cgi?app=prfl&frm=isp3506cpp&ln=eng (Last accessed January 9, 2016).
	#Human Rights Code [RSBC 1996] c. 210.		#Human Rights Code [RSBC 1996] c. 210.
	#HCC Policy Manual. Chapter: 1 Overview Number: 1.A Section: At Home And Community Care Services Page: 2 Of 4 Subsection: Effective: January 1, 2013.		#HCC Policy Manual. Chapter: 1 Overview Number: 1.A Section: At Home And Community Care Services Page: 2 Of 4 Subsection: Effective: January 1, 2013.
	#For a legal discussion of problems with “personal care decisions” that come up in residential care facilities in Ontario, see : R. Chrolavicius. ( November 26, 2013) Misuse of powers of attorney for personal care. Advocacy Centre for the Elderly. Online: http://www.advocacycentreelderly.org/appimages/file/Misuse%20of%20Powers%20of%20Attorney%20for%20Personal%20Care-LR%203.pdf (Last accessed ~~May 1~~, ~~2014~~).		#For a legal discussion of problems with “personal care decisions” that come up in residential care facilities in Ontario, see : R. Chrolavicius. ( November 26, 2013) Misuse of powers of attorney for personal care. Advocacy Centre for the Elderly. Online: http://www.advocacycentreelderly.org/appimages/file/Misuse%20of%20Powers%20of%20Attorney%20for%20Personal%20Care-LR%203.pdf (Last accessed January 9, 2016).
	#The Mental Health Act, again is often used to admit individuals who do not have anyone to consent on their behalf.		#The Mental Health Act, again is often used to admit individuals who do not have anyone to consent on their behalf.
	#See:		#See:
	##Representation Agreement Act , [RSBC 1996] c. 405, s. 1 Definitions “Personal care”.		##Representation Agreement Act , [RSBC 1996] c. 405, s. 1 Definitions “Personal care”.
	##Power of Attorney Act [RSBC 1996]c. 370. Part 2 Enduring Power of Attorney, s. 10 (Definitions, “personal care “).		##Power of Attorney Act [RSBC 1996]c. 370. Part 2 Enduring Power of Attorney, s. 10 (Definitions, “personal care “).
	##Also see Nidus. “ Personal Care”. Online : http://www.nidus.ca/?page_id=275 (Last accessed ~~May 1~~, ~~2014~~).		##Also see Nidus. “ Personal Care”. Online : http://www.nidus.ca/?page_id=275 (Last accessed January 9, 2016).
	#See Representation Agreement Act.		#See Representation Agreement Act.
	#s. 1 Definitions. “ health care” mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes		#s. 1 Definitions. “ health care” mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes
	##(a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,		##(a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,
	##(b) a plan for minor health care that		##(b) a plan for minor health care that
	###(i) is developed by one or more health care ~~Providers~~,		###(i) is developed by one or more health care providers,
	###(ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and		###(ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and
	###(iii) expires no later than 12 months from the date consent for the plan was given, and		###(iii) expires no later than 12 months from the date consent for the plan was given, and

← Older revision		Revision as of 19:50, 24 July 2014
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	Mentally capable adults have the right to decide where they will live, and those who are not mentally capable should still have their needs and wishes considered.		Mentally capable adults have the right to decide where they will live, and those who are not mentally capable should still have their needs and wishes considered.
	Prospective residents have the right to decide whether or not they want to live in any residential care facility, as well as a particular care facility. Neither the Community Care and Assisted Living Act		Prospective residents have the right to decide whether or not they want to live in any residential care facility, as well as a particular care facility. Neither the Community Care and Assisted Living Act
	Community Care and Assisted Living Act nor the Hospital Act contains any specific provisions on the admissions process or how to obtain consent for admission to a residential care facility.([[~~Chapter Three Legal Issues in Residential Care~~ References\|23]])		Community Care and Assisted Living Act nor the Hospital Act contains any specific provisions on the admissions process or how to obtain consent for admission to a residential care facility.([[{{PAGENAME}}#References\|1]])

	In many cases, prospective residents have made the decision to move to a residential care facility on their own because they realize they are no longer able to live at home with supports safely. For them consenting to the admission is a simple matter.		In many cases, prospective residents have made the decision to move to a residential care facility on their own because they realize they are no longer able to live at home with supports safely. For them consenting to the admission is a simple matter.
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	==Agreeing to the Admission==		==Agreeing to the Admission==

	In the past, Ministry of Health policy simply required that health authorities authorize the admission of clients to residential care facilities and that clients agree to admission. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|24]])At present, the ministry policy requires health authorities ensure “that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.”([[~~Chapter Three Legal Issues in Residential Care~~ References\|25]]) These provisions were developed in anticipation of the enactment of the Part 3 sections of the Health Care Consent and Care Facilities (Admission) Act dealing with admissions to the facility, which to date are not in force.([[~~Chapter Three Legal Issues in Residential Care~~ References\|26]])		In the past, Ministry of Health policy simply required that health authorities authorize the admission of clients to residential care facilities and that clients agree to admission. ([[{{PAGENAME}}#References\|2]])At present, the ministry policy requires health authorities ensure “that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.”([[{{PAGENAME}}#References\|3]]) These provisions were developed in anticipation of the enactment of the Part 3 sections of the Health Care Consent and Care Facilities (Admission) Act dealing with admissions to the facility, which to date are not in force.([[{{PAGENAME}}#References\|4]])

	This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.		This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.
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	{\| class="wikitable"		{\| class="wikitable"
	\|- valign=top		\|- valign=top
	\| width="100%" \|'''Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is ''not considered'' as sufficient legal authority to consent to admission or sign the admission agreement.'''([[~~Chapter Three Legal Issues in Residential Care~~ References\|27]])		\| width="100%" \|'''Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is ''not considered'' as sufficient legal authority to consent to admission or sign the admission agreement.'''([[{{PAGENAME}}#References\|5]])
	\|}		\|}

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	: b) undertake a formal assessment of mental capability.		: b) undertake a formal assessment of mental capability.

	The British Columbia Office of the Ombudsperson Best of Care Report suggests that the term “assess” here may mean a formal assessment of capacity. If a formal assessment is the intended meaning of the HCC policy, it would undermine the legal presumption of mental capability of many prospective residents. It would likely be considered a discriminatory policy violating British Columbia’s Human Rights Code, by placing a burden on people seeking residential care that other adults do not ordinarily experience. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|28]])It would also involve a significant use of formal resources to undertake an assessment of all prospective residents, especially given the high turnover in residential care beds. That would seem to violate the Ministry of Health’s policy on effective use of resources.([[~~Chapter Three Legal Issues in Residential Care~~ References\|29]])		The British Columbia Office of the Ombudsperson Best of Care Report suggests that the term “assess” here may mean a formal assessment of capacity. If a formal assessment is the intended meaning of the HCC policy, it would undermine the legal presumption of mental capability of many prospective residents. It would likely be considered a discriminatory policy violating British Columbia’s Human Rights Code, by placing a burden on people seeking residential care that other adults do not ordinarily experience. ([[{{PAGENAME}}#References\|6]])It would also involve a significant use of formal resources to undertake an assessment of all prospective residents, especially given the high turnover in residential care beds. That would seem to violate the Ministry of Health’s policy on effective use of resources.([[{{PAGENAME}}#References\|7]])

	If the person was formally assessed and was discovered to be mentally incapable of making the admission decision, this still does not “fix the real problem”. Unless the person has a committee for the person, or has appointed a representative with authority for personal care decisions under the Representation Agreement Act, there may be no legally recognized substitute who can consent to the admission on behalf of the mentally incapable person. People holding an enduring power of attorney may have the authority to make financial decisions on the resident’s behalf, but not “personal care decisions”, which include where the person will live. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|30]])A power of attorney drafted and signed in another jurisdiction may or may not be legal in British Columbia. The issue is further complicated by the fact the Mental Health Act is currently being used at times to admit the person when there is no one to give proper consent for a prospective resident. That is an inappropriate use of the Act.		If the person was formally assessed and was discovered to be mentally incapable of making the admission decision, this still does not “fix the real problem”. Unless the person has a committee for the person, or has appointed a representative with authority for personal care decisions under the Representation Agreement Act, there may be no legally recognized substitute who can consent to the admission on behalf of the mentally incapable person. People holding an enduring power of attorney may have the authority to make financial decisions on the resident’s behalf, but not “personal care decisions”, which include where the person will live. ([[{{PAGENAME}}#References\|8]])A power of attorney drafted and signed in another jurisdiction may or may not be legal in British Columbia. The issue is further complicated by the fact the Mental Health Act is currently being used at times to admit the person when there is no one to give proper consent for a prospective resident. That is an inappropriate use of the Act.

	The issues of consent in various legal contexts are described in greater detail in the chapters on “Consent & Capacity” and “Substitute Decision-Making”.		The issues of consent in various legal contexts are described in greater detail in the chapters on “Consent & Capacity” and “Substitute Decision-Making”.
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	==What Kind of Decision is Admission to a Residential Care Facility and Who Makes It?==		==What Kind of Decision is Admission to a Residential Care Facility and Who Makes It?==

	For mentally capable adults, the decision whether to move to and be admitted to residential care rests with them. In all other cases, it will rest with someone else. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|31]])		For mentally capable adults, the decision whether to move to and be admitted to residential care rests with them. In all other cases, it will rest with someone else. ([[{{PAGENAME}}#References\|9]])

	Historically in British Columbia as in other jurisdictions, we have made a distinction between health care, personal care and financial or legal decisions. “Where I will live?” is considered a personal care decision. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|32]])Making the decision about admission to a care facility is a hybrid decision that has personal care, health and financial aspects. This leads to some confusion and debate about who (other than capable adults deciding on their own) can agree to admission to a residential care facility. A closely related question is “Who can sign an admission agreement and bind the parties?”		Historically in British Columbia as in other jurisdictions, we have made a distinction between health care, personal care and financial or legal decisions. “Where I will live?” is considered a personal care decision. ([[{{PAGENAME}}#References\|10]])Making the decision about admission to a care facility is a hybrid decision that has personal care, health and financial aspects. This leads to some confusion and debate about who (other than capable adults deciding on their own) can agree to admission to a residential care facility. A closely related question is “Who can sign an admission agreement and bind the parties?”

	In health care practice, legal documents such as enduring powers of attorney have been accepted by Operators as evidence of a family member or others’ authority to act on the mentally incapacitated older adult’s behalf. As discussed in Chapter Seven, a power of attorney can give authority over financial and certain legal decisions and sorting out payment of the care facility costs will be part of the admission process. Operators have a legitimate need in clearly identifying what the payment process will be.		In health care practice, legal documents such as enduring powers of attorney have been accepted by Operators as evidence of a family member or others’ authority to act on the mentally incapacitated older adult’s behalf. As discussed in Chapter Seven, a power of attorney can give authority over financial and certain legal decisions and sorting out payment of the care facility costs will be part of the admission process. Operators have a legitimate need in clearly identifying what the payment process will be.

	However, strictly speaking, representation agreements are the only planning document that gives chosen people the legal authority to make personal care decisions on another person’s behalf. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|33]])In practice, they are not yet a commonly used planning tool in British Columbia. The power of attorney is often an “add on” legal document to a representation agreement to help cover a range of financial decision-making issues when people become mentally incapable of making and exercising those decisions on their own.		However, strictly speaking, representation agreements are the only planning document that gives chosen people the legal authority to make personal care decisions on another person’s behalf. ([[{{PAGENAME}}#References\|11]])In practice, they are not yet a commonly used planning tool in British Columbia. The power of attorney is often an “add on” legal document to a representation agreement to help cover a range of financial decision-making issues when people become mentally incapable of making and exercising those decisions on their own.

	It is sometimes suggested that admission a residential care facility is a part of or a step to a health care decision that could fall under the Health Care Consent and Care Facility Admission Act. This interpretation suggests that (absent Section 2, of the Act coming into force), hospital administration , discharge planners and care facility Operators could simply rely on the statutory list of temporary substitute decision makers for health to get consent for admission. While this might be a convenient solution for admitting mentally incapable adults, "health care" is narrowly defined under that Act and would not support that interpretation. ([[~~Chapter Three Legal Issues in Residential Care~~ References\|34]])		It is sometimes suggested that admission a residential care facility is a part of or a step to a health care decision that could fall under the Health Care Consent and Care Facility Admission Act. This interpretation suggests that (absent Section 2, of the Act coming into force), hospital administration , discharge planners and care facility Operators could simply rely on the statutory list of temporary substitute decision makers for health to get consent for admission. While this might be a convenient solution for admitting mentally incapable adults, "health care" is narrowly defined under that Act and would not support that interpretation. ([[{{PAGENAME}}#References\|12]])

	Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope. It may be possible to sever the clauses into different agreements as the substitute decision maker’s authority may not cover both types of decisions. Creating two separate documents may or may not improve the situation.		Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope. It may be possible to sever the clauses into different agreements as the substitute decision maker’s authority may not cover both types of decisions. Creating two separate documents may or may not improve the situation.

← Older revision		Revision as of 23:04, 3 July 2014
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	Mentally capable adults have the right to decide where they will live, and those who are not mentally capable should still have their needs and wishes considered.		Mentally capable adults have the right to decide where they will live, and those who are not mentally capable should still have their needs and wishes considered.
	Prospective residents have the right to decide whether or not they want to live in any residential care facility, as well as a particular care facility. Neither the Community Care and Assisted Living Act		Prospective residents have the right to decide whether or not they want to live in any residential care facility, as well as a particular care facility. Neither the Community Care and Assisted Living Act
	Community Care and Assisted Living Act nor the Hospital Act contains any specific provisions on the admissions process or how to obtain consent for admission to a residential care facility.		Community Care and Assisted Living Act nor the Hospital Act contains any specific provisions on the admissions process or how to obtain consent for admission to a residential care facility.([[Chapter Three Legal Issues in Residential Care References\|23]])

	In many cases, prospective residents have made the decision to move to a residential care facility on their own because they realize they are no longer able to live at home with supports safely. For them consenting to the admission is a simple matter.		In many cases, prospective residents have made the decision to move to a residential care facility on their own because they realize they are no longer able to live at home with supports safely. For them consenting to the admission is a simple matter.
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	==Agreeing to the Admission==		==Agreeing to the Admission==

	In the past, Ministry of Health policy simply required that health authorities authorize the admission of clients to residential care facilities and that clients agree to admission. At present, the ministry policy requires health authorities ensure “that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.” These provisions were developed in anticipation of the enactment of the Part 3 sections of the Health Care Consent and Care Facilities (Admission) Act dealing with admissions to the facility, which to date are not in force.		In the past, Ministry of Health policy simply required that health authorities authorize the admission of clients to residential care facilities and that clients agree to admission. ([[Chapter Three Legal Issues in Residential Care References\|24]])At present, the ministry policy requires health authorities ensure “that a client’s capacity to provide informed consent to facility admission has been assessed, and that the client has consented in writing to be admitted to a residential care facility.”([[Chapter Three Legal Issues in Residential Care References\|25]]) These provisions were developed in anticipation of the enactment of the Part 3 sections of the Health Care Consent and Care Facilities (Admission) Act dealing with admissions to the facility, which to date are not in force.([[Chapter Three Legal Issues in Residential Care References\|26]])

	This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.		This policy raises a number of interrelated issues – the capacity for giving or refusing one’s consent to admission; giving informed consent to admission; evidence of consent; the responsibility to provide residents and families with appropriate information in order to exercise informed consent; and having the capacity to consent to the contractual agreement.

	'''Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is ''not considered'' as sufficient legal authority to consent to admission or sign the admission agreement.'''		'''Note: If a person has been given authority to receive administer the resident’s Old Age Security or Canada Pension Plan cheques as a Private Trustee, this is ''not considered'' as sufficient legal authority to consent to admission or sign the admission agreement.'''([[Chapter Three Legal Issues in Residential Care References\|27]])

	==Demonstrating Consent==		==Demonstrating Consent==
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	: b) undertake a formal assessment of mental capability.		: b) undertake a formal assessment of mental capability.

	The British Columbia Office of the Ombudsperson Best of Care Report suggests that the term “assess” here may mean a formal assessment of capacity. If a formal assessment is the intended meaning of the HCC policy, it would undermine the legal presumption of mental capability of many prospective residents. It would likely be considered a discriminatory policy violating British Columbia’s Human Rights Code, by placing a burden on people seeking residential care that other adults do not ordinarily experience. It would also involve a significant use of formal resources to undertake an assessment of all prospective residents, especially given the high turnover in residential care beds. That would seem to violate the Ministry of Health’s policy on effective use of resources.		The British Columbia Office of the Ombudsperson Best of Care Report suggests that the term “assess” here may mean a formal assessment of capacity. If a formal assessment is the intended meaning of the HCC policy, it would undermine the legal presumption of mental capability of many prospective residents. It would likely be considered a discriminatory policy violating British Columbia’s Human Rights Code, by placing a burden on people seeking residential care that other adults do not ordinarily experience. ([[Chapter Three Legal Issues in Residential Care References\|28]])It would also involve a significant use of formal resources to undertake an assessment of all prospective residents, especially given the high turnover in residential care beds. That would seem to violate the Ministry of Health’s policy on effective use of resources.([[Chapter Three Legal Issues in Residential Care References\|29]])

	If the person was formally assessed and was discovered to be mentally incapable of making the admission decision, this still does not “fix the real problem”. Unless the person has a committee for the person, or has appointed a representative with authority for personal care decisions under the Representation Agreement Act, there may be no legally recognized substitute who can consent to the admission on behalf of the mentally incapable person. People holding an enduring power of attorney may have the authority to make financial decisions on the resident’s behalf, but not “personal care decisions”, which include where the person will live. A power of attorney drafted and signed in another jurisdiction may or may not be legal in British Columbia. The issue is further complicated by the fact the Mental Health Act is currently being used at times to admit the person when there is no one to give proper consent for a prospective resident. That is an inappropriate use of the Act.		If the person was formally assessed and was discovered to be mentally incapable of making the admission decision, this still does not “fix the real problem”. Unless the person has a committee for the person, or has appointed a representative with authority for personal care decisions under the Representation Agreement Act, there may be no legally recognized substitute who can consent to the admission on behalf of the mentally incapable person. People holding an enduring power of attorney may have the authority to make financial decisions on the resident’s behalf, but not “personal care decisions”, which include where the person will live. ([[Chapter Three Legal Issues in Residential Care References\|30]])A power of attorney drafted and signed in another jurisdiction may or may not be legal in British Columbia. The issue is further complicated by the fact the Mental Health Act is currently being used at times to admit the person when there is no one to give proper consent for a prospective resident. That is an inappropriate use of the Act.

	The issues of consent in various legal contexts are described in greater detail in the chapters on “Consent & Capacity” and “Substitute ~~Decisionmaking”~~.		The issues of consent in various legal contexts are described in greater detail in the chapters on “Consent & Capacity” and “Substitute Decision-Making”.

	==What Kind of Decision is Admission to a Residential Care Facility and Who Makes It?==		==What Kind of Decision is Admission to a Residential Care Facility and Who Makes It?==

	For mentally capable adults, the decision whether to move to and be admitted to residential care rests with them. In all other cases, it will rest with someone else.		For mentally capable adults, the decision whether to move to and be admitted to residential care rests with them. In all other cases, it will rest with someone else. ([[Chapter Three Legal Issues in Residential Care References\|31]])

	Historically in British Columbia as in other jurisdictions, we have made a distinction between health care, personal care and financial or legal decisions. “Where I will live?” is considered a personal care decision. Making the decision about admission to a care facility is a hybrid decision that has personal care, health and financial aspects. This leads to some confusion and debate about who (other than capable adults deciding on their own) can agree to admission to a residential care facility. A closely related question is “Who can sign an admission agreement and bind the parties?”		Historically in British Columbia as in other jurisdictions, we have made a distinction between health care, personal care and financial or legal decisions. “Where I will live?” is considered a personal care decision. ([[Chapter Three Legal Issues in Residential Care References\|32]])Making the decision about admission to a care facility is a hybrid decision that has personal care, health and financial aspects. This leads to some confusion and debate about who (other than capable adults deciding on their own) can agree to admission to a residential care facility. A closely related question is “Who can sign an admission agreement and bind the parties?”

	In health care practice, legal documents such as enduring powers of attorney have been accepted by Operators as evidence of a family member or others’ authority to act on the mentally incapacitated older adult’s behalf. As discussed in Chapter Seven, a power of attorney can give authority over financial and certain legal decisions and sorting out payment of the care facility costs will be part of the admission process. Operators have a legitimate need in clearly identifying what the payment process will be.		In health care practice, legal documents such as enduring powers of attorney have been accepted by Operators as evidence of a family member or others’ authority to act on the mentally incapacitated older adult’s behalf. As discussed in Chapter Seven, a power of attorney can give authority over financial and certain legal decisions and sorting out payment of the care facility costs will be part of the admission process. Operators have a legitimate need in clearly identifying what the payment process will be.

	However, strictly speaking, representation agreements are the only planning document that gives chosen people the legal authority to make personal care decisions on another person’s behalf. In practice, they are not yet a commonly used planning tool in British Columbia. The power of attorney is often an “add on” legal document to a representation agreement to help cover a range of financial decision-making issues when people become mentally incapable of making and exercising those decisions on their own.		However, strictly speaking, representation agreements are the only planning document that gives chosen people the legal authority to make personal care decisions on another person’s behalf. ([[Chapter Three Legal Issues in Residential Care References\|33]])In practice, they are not yet a commonly used planning tool in British Columbia. The power of attorney is often an “add on” legal document to a representation agreement to help cover a range of financial decision-making issues when people become mentally incapable of making and exercising those decisions on their own.

	It is sometimes suggested that admission a residential care facility is a part of or a step to a health care decision that could fall under the Health Care Consent and Care Facility Admission Act. This interpretation suggests that (absent Section 2, of the Act coming into force), hospital administration , discharge planners and care facility Operators could simply rely on the statutory list of temporary substitute decision makers for health to get consent for admission. While this might be a convenient solution for admitting mentally incapable adults, "health care" is narrowly defined under that Act and would not support that interpretation.		It is sometimes suggested that admission a residential care facility is a part of or a step to a health care decision that could fall under the Health Care Consent and Care Facility Admission Act. This interpretation suggests that (absent Section 2, of the Act coming into force), hospital administration , discharge planners and care facility Operators could simply rely on the statutory list of temporary substitute decision makers for health to get consent for admission. While this might be a convenient solution for admitting mentally incapable adults, "health care" is narrowly defined under that Act and would not support that interpretation. ([[Chapter Three Legal Issues in Residential Care References\|34]])

	Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope. It may be possible to sever the clauses into different agreements as the substitute decision maker’s authority may not cover both types of decisions. Creating two separate documents may or may not improve the situation.		Currently, admission agreements may have clauses specific to the attorney’s (financial and legal) functions and other clauses that fall within the representative’s (personal care) scope. It may be possible to sever the clauses into different agreements as the substitute decision maker’s authority may not cover both types of decisions. Creating two separate documents may or may not improve the situation.