Substitute Decision Making for Adult Guardianship (15:IV) - Revision history

LSLAP at 19:30, 13 October 2025

2025-10-13T19:30:12Z

← Older revision		Revision as of 19:30, 13 October 2025
Line 1:		Line 1:
	{{REVIEWED LSLAP \| date= ~~September 2, 2024~~}}		{{REVIEWED LSLAP \| date= 9 August 2025}}
	{{LSLAP Manual TOC\|expanded = guardianship}}		{{LSLAP Manual TOC\|expanded = guardianship}}
	For a brief overview of multiple legal instruments for substitute decision making, please visit Public Guardian and Trustee of British Columbia guide It’s Your Choice: Personal Planning Tools which can be found at https://www.trustee.bc.ca/documents/STA/It%27s_Your_Choice-Personal_Planning_Tools.pdf. The guide offers the following table which summarizes key characteristics of each legal instrument for substitute decision making:		For a brief overview of multiple legal instruments for substitute decision making, please visit Public Guardian and Trustee of British Columbia guide It’s Your Choice: Personal Planning Tools which can be found at https://www.trustee.bc.ca/documents/STA/It%27s_Your_Choice-Personal_Planning_Tools.pdf. The guide offers the following table which summarizes key characteristics of each legal instrument for substitute decision making:

LSLAP at 00:20, 29 September 2025

2025-09-29T00:20:53Z

← Older revision		Revision as of 00:20, 29 September 2025
Line 574:		Line 574:

	==== 5. Creating a Representation Agreement ====		==== 5. Creating a Representation Agreement ====
	The adult who executes the Representation Agreement must have the mental capacity to do so, as set out in the RAA.		The adult who executes the Representation Agreement must have the mental capacity to do so, as set out in the ''RAA''.

	The RA must also be in writing, signed and witnessed (RAA s 13). The adult and each of the representative(s) must sign the RA (RAA s 13(2)). Two adults must witness the signatures. However, only one witness is necessary if that witness is a lawyer and member in good standing with the Law Society of BC or is a member in good standing of the Society of Notaries Public.		The RA must also be in writing, signed and witnessed (''RAA'' s 13). The adult and each of the representative(s) must sign the RA (''RAA'' s 13(2)). Two adults must witness the signatures. However, only one witness is necessary if that witness is a lawyer and member in good standing with the Law Society of BC or is a member in good standing of the Society of Notaries Public.

	Witnesses cannot be (''RAA'' s 13(5)):		Witnesses cannot be (''RAA'' s 13(5)):

LSLAP: /* 1. Significance of an Advance Directive */

2025-09-29T00:18:22Z

1. Significance of an Advance Directive

← Older revision		Revision as of 00:18, 29 September 2025
Line 648:		Line 648:

	==== 1. Significance of an Advance Directive ====		==== 1. Significance of an Advance Directive ====
	The law provides detailed guidelines for how a health care provider is to respond when an AD is in place. The new legislation recognizes a written AD which, when made in accordance with the ''HCCFA'', provides a valid consent on the basis of which health care provider can provide treatment, without involving any substitute decision-maker.		The law provides detailed guidelines for how a health care provider is to respond when an AD is in place. The new legislation recognizes a written AD which, when made in accordance with the ''HCCFA'', provides a valid consent on the basis of which health care provider can provide treatment, without involving any substitute decision-maker.

	In order to be valid, the new AD must be executed in accordance with the legislation and contain two ‘informed consumer’ acknowledgements in writing to the effect that:		In order to be valid, the new AD must be executed in accordance with the legislation and contain two ‘informed consumer’ acknowledgements in writing to the effect that:

LSLAP: /* 2. Who Can Be a Representative? */

2025-09-29T00:16:27Z

2. Who Can Be a Representative?

← Older revision		Revision as of 00:16, 29 September 2025
Line 492:		Line 492:
	The PGT can also be named as a representative.		The PGT can also be named as a representative.

	According to s 5(1)(c) of the ''RAA'', a credit union or trust company can only have authority to make (limited) financial decisions listed in a s 7 RA. A credit union or trust company cannot make decisions regarding health care or personal care.		According to s 5(1)(c) of the ''RAA'', a credit union or trust company can only have authority to make (limited) financial decisions listed in a s 7 RA. A credit union or trust company cannot make decisions regarding health care or personal care.

	Under s 5(2) of the ''RAA'', an adult can also name more than one Representative either:		Under s 5(2) of the ''RAA'', an adult can also name more than one Representative either:

LSLAP: /* a) Section 7 Representation Agreements */

2025-09-29T00:15:33Z

a) Section 7 Representation Agreements

← Older revision		Revision as of 00:15, 29 September 2025
Line 436:		Line 436:
	::(i) Completing and submitting the adult's returns,		::(i) Completing and submitting the adult's returns,
	::(ii) Dealing, on the adult's behalf, with assessments, reassessments, additional assessments and all related matters, and		::(ii) Dealing, on the adult's behalf, with assessments, reassessments, additional assessments and all related matters, and
	::(iii) Subject to the Income Tax Act, 1996 RSBC, c 215 and the ''Income Tax Act'' (Canada), 1985 RSC, c 1 signing, on the adult's behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii);		::(iii) Subject to the ''Income Tax Act'', 1996 RSBC, c 215 and the ''Income Tax Act'' (Canada), 1985 RSC, c 1 signing, on the adult's behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii);
	:(x) Safekeeping the adult's documents and property;		:(x) Safekeeping the adult's documents and property;
	:(y) Leasing a safety deposit box for the adult, entering the adult's safety deposit box, removing its contents and surrendering the box;		:(y) Leasing a safety deposit box for the adult, entering the adult's safety deposit box, removing its contents and surrendering the box;

LSLAP: /* b) Resignation of the Attorney(s) */

2025-09-29T00:14:10Z

b) Resignation of the Attorney(s)

← Older revision		Revision as of 00:14, 29 September 2025
Line 326:		Line 326:

	As of September 1, 2011, s 17(1) of the ''PAA'' outlines that an attorney who does not sign a POA is not obligated or authorized to act as an attorney. It is possible to refuse becoming an attorney by simply choosing not to sign the POA. Section 17(4) also states that an attorney who does not sign is not required to provide any notice of any kind, but ethically the attorney should let the adult know. If a person ''does'' sign the POA and wishes to resign from acting as attorney, then written notice must be provided to the adult, any other attorneys and, if the adult is incapable, a spouse, near relative or, if known to the attorney, close friend of the adult.		As of September 1, 2011, s 17(1) of the ''PAA'' outlines that an attorney who does not sign a POA is not obligated or authorized to act as an attorney. It is possible to refuse becoming an attorney by simply choosing not to sign the POA. Section 17(4) also states that an attorney who does not sign is not required to provide any notice of any kind, but ethically the attorney should let the adult know. If a person ''does'' sign the POA and wishes to resign from acting as attorney, then written notice must be provided to the adult, any other attorneys and, if the adult is incapable, a spouse, near relative or, if known to the attorney, close friend of the adult.

	If an adult who has capacity does not want the attorney to act, then the adult can revoke or change the POA. If an adult no longer has capacity and others are concerned about the conduct of an attorney, the concerned others may wish to contact the PGT.		If an adult who has capacity does not want the attorney to act, then the adult can revoke or change the POA. If an adult no longer has capacity and others are concerned about the conduct of an attorney, the concerned others may wish to contact the PGT.

LSLAP: /* b) Resignation of the Attorney(s) */

2025-09-29T00:13:56Z

b) Resignation of the Attorney(s)

← Older revision		Revision as of 00:13, 29 September 2025
Line 325:		Line 325:
	An attorney who loses the capacity to fulfill legal duties should resign. Likewise, if an attorney is unable or unwilling to act on behalf of the adult, according to the adult’s instructions, wishes and values, then the attorney should resign.		An attorney who loses the capacity to fulfill legal duties should resign. Likewise, if an attorney is unable or unwilling to act on behalf of the adult, according to the adult’s instructions, wishes and values, then the attorney should resign.

	As of September 1, 2011, s 17(1) of the ''PAA'' outlines that an attorney who does not sign a POA is not obligated or authorized to act as an attorney. It is possible to refuse becoming an attorney by simply choosing not to sign the POA. Section 17(4) also states that an attorney who does not sign is not required to provide any notice of any kind, but ethically the attorney should let the adult know. If a person ''does'' sign the POA and wishes to resign from acting as attorney, then written notice must be provided to the adult, any other attorneys and, if the adult is incapable, a spouse, near relative or, if known to the attorney, close friend of the adult.		As of September 1, 2011, s 17(1) of the ''PAA'' outlines that an attorney who does not sign a POA is not obligated or authorized to act as an attorney. It is possible to refuse becoming an attorney by simply choosing not to sign the POA. Section 17(4) also states that an attorney who does not sign is not required to provide any notice of any kind, but ethically the attorney should let the adult know. If a person ''does'' sign the POA and wishes to resign from acting as attorney, then written notice must be provided to the adult, any other attorneys and, if the adult is incapable, a spouse, near relative or, if known to the attorney, close friend of the adult.

	If an adult who has capacity does not want the attorney to act, then the adult can revoke or change the POA. If an adult no longer has capacity and others are concerned about the conduct of an attorney, the concerned others may wish to contact the PGT.		If an adult who has capacity does not want the attorney to act, then the adult can revoke or change the POA. If an adult no longer has capacity and others are concerned about the conduct of an attorney, the concerned others may wish to contact the PGT.

	==== c) Duties after Termination ====		==== c) Duties after Termination ====

LSLAP: /* b) Who can Appoint and Revoke an Attorney */

2025-09-29T00:10:47Z

b) Who can Appoint and Revoke an Attorney

← Older revision		Revision as of 00:10, 29 September 2025
Line 60:		Line 60:
	* Acting voluntarily, or on their own. <br>		* Acting voluntarily, or on their own. <br>

	The adult must have mental capacity at the time that the POA is signed, and must be able to understand the nature and implications of a POA. An adult who has mental capacity has the legal right to make decisions, including the legal right to:		The adult must have mental capacity at the time that the POA is signed, and must be able to understand the nature and implications of a POA. An adult who has mental capacity has the legal right to make decisions, including the legal right to choose whether to:

	* Determine the type, scope or purpose of the POA<br>		* Determine the type, scope or purpose of the POA<br>

LSLAP: /* a) Types of Power of Attorney (POA) */

2025-09-29T00:09:35Z

a) Types of Power of Attorney (POA)

← Older revision		Revision as of 00:09, 29 September 2025
Line 30:		Line 30:

	==== a) Types of Power of Attorney (POA) ====		==== a) Types of Power of Attorney (POA) ====
	There are two types of POAs. It is important to find out which type of POA would best suit the adult’s needs. The first is governed by Part 1 of the PAA, and is sometimes called a “General POA.” The second is governed by Parts 2 and 3 of the PAA, and is sometimes called an “Enduring POA.” The key difference between the two is that a POA under Part 1 ends once the adult becomes incapable, while a POA under Parts 2 and 3 continues even when the adult becomes incapable. Questions to ask include:		There are two types of POAs. It is important to find out which type of POA would best suit the adult’s needs. The first is governed by Part 1 of the ''PAA'', and is sometimes called a “General POA.” The second is governed by Parts 2 and 3 of the ''PAA'', and is sometimes called an “Enduring POA.” The key difference between the two is that a POA under Part 1 ends once the adult becomes incapable, while a POA under Parts 2 and 3 continues even when the adult becomes incapable. Questions to ask include:

	* What tasks does the adult want the attorney to be able to perform?		* What tasks does the adult want the attorney to be able to perform?
Line 41:		Line 41:
	The two types of POA are as follows:		The two types of POA are as follows:
	# '''General:''' General POAs are governed by Part 1 of the ''PAA'', and by common law for agency relationships. They are effective immediately, or as specified on the document, and ongoing until the loss of capacity, revocation or death. The test for capacity for making general POAs can be found in the BCLI’s Report on Common Law Test of Capacity (https://www.bcli.org/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf). General POAs are rarely used in incapacity planning, as they become no longer in effect when an adult becomes incapable (which is often when a POA is most needed).		# '''General:''' General POAs are governed by Part 1 of the ''PAA'', and by common law for agency relationships. They are effective immediately, or as specified on the document, and ongoing until the loss of capacity, revocation or death. The test for capacity for making general POAs can be found in the BCLI’s Report on Common Law Test of Capacity (https://www.bcli.org/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-Law_Tests_of_Capacity_FINAL.pdf). General POAs are rarely used in incapacity planning, as they become no longer in effect when an adult becomes incapable (which is often when a POA is most needed).
	# '''Enduring:''' Enduring POAs (EPOAs) are governed by Parts 2 and 3 of the PAA. Enduring POAs continue in the event that the adult loses capacity, and only ends upon revocation or death. These are the most common type of POA, they allow the attorney to act while the adult is capable and continue when/if the adult becomes incapable. </br>		# '''Enduring:''' Enduring POAs (EPOAs) are governed by Parts 2 and 3 of the ''PAA''. Enduring POAs continue in the event that the adult loses capacity, and only ends upon revocation or death. These are the most common type of POA, they allow the attorney to act while the adult is capable and continue when/if the adult becomes incapable. </br>

	EPOAs can be effective immediately, or “springing.” A “springing” EPOA stays dormant until a future date or event (i.e. the loss of capacity) and ends only upon death. The adult can decide in advance how capacity is to be determined, such as by requiring the agreement of a family member and two doctors. A springing EPOA is not active until the adult loses capacity.		EPOAs can be effective immediately, or “springing.” A “springing” EPOA stays dormant until a future date or event (i.e. the loss of capacity) and ends only upon death. The adult can decide in advance how capacity is to be determined, such as by requiring the agreement of a family member and two doctors. A springing EPOA is not active until the adult loses capacity.

	See ''[https://www.canlii.org/en/bc/bcca/doc/2004/2004bcca100/2004bcca100.html?searchUrlHash=AAAAAQA2R29vZHJpY2ggdiBCcml0aXNoIENvbHVtYmlhIChSZWdpc3RyYXIgb2YgTGFuZCBUaXRsZXMpAAAAAAE&resultIndex=1 Goodrich v British Columbia (Registrar of Land Titles)]'', 2004 BCCA 100. (The BCCA decided that even though the PAA does not explicitly allow for a springing power of attorney, it is nevertheless possible to make one.)		See ''[https://www.canlii.org/en/bc/bcca/doc/2004/2004bcca100/2004bcca100.html?searchUrlHash=AAAAAQA2R29vZHJpY2ggdiBCcml0aXNoIENvbHVtYmlhIChSZWdpc3RyYXIgb2YgTGFuZCBUaXRsZXMpAAAAAAE&resultIndex=1 Goodrich v British Columbia (Registrar of Land Titles)]'', 2004 BCCA 100. (The BCCA decided that even though the ''PAA'' does not explicitly allow for a springing power of attorney, it is nevertheless possible to make one.)

	Both general POAs and EPOAs can be limited in relation to assets, duration, or specific types of transactions. For example, an adult could draft a POA for the attorney to manage their bank accounts and pay their bills while they are on vacation, but not give authority to the attorney over their real estate and investments. A bank’s POA will be limited to transactions at that institution for the accounts identified.		Both general POAs and EPOAs can be limited in relation to assets, duration, or specific types of transactions. For example, an adult could draft a POA for the attorney to manage their bank accounts and pay their bills while they are on vacation, but not give authority to the attorney over their real estate and investments. A bank’s POA will be limited to transactions at that institution for the accounts identified.

LSLAP: Authorized LSLAP changes

2025-09-23T05:21:14Z

Authorized LSLAP changes

Show changes