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| {{LSLAP Manual TOC|expanded = guardianship}} | | {{LSLAP Manual TOC|expanded = guardianship}} |
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| == '''A. The Scope of Guardianship and Substitute Decision-Making Law in BC''' ==
| | The purpose of the legislation in British Columbia pertaining to adult guardianship and substitute-decision making is to create a scheme by which adults (people over the age of 19) can plan for their future in the event that they may need assistance with decision making, and to provide a means to assist adults who may be vulnerable to abuse and neglect. |
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| 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:
| | The legislation is informed by the guiding principle that all adults have a right to self-determination and autonomy and that any incursion into this right must be governed by the presumption that they are capable of making their own decisions and that any support provided to them is the least intrusive available. |
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| # '''Mental Capacity''': The law presumes that an adult is capable of making decisions and provides statutory tests for determining incapability in different contexts.
| | There are six statutes governing adult guardianship and substitute decision-making: |
| # '''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:
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| #* '''Enduring Power of Attorney (EPOA)''': for financial decisions only; and
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| #* '''Representation Agreement (RA)''' for health care consent, personal care decisions, and routine financial decision-making.
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| #* The law also allows a capable adult to provide instructions giving or refusing consent to specific health care in an '''Advance Directive'''.
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| # '''Guardianship''': Where an adult is incapable and does not have Advance Planning Documents in place, the court may appoint a guardian (called a “committee of estate” or “committee of person”) 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 of estate by a statutory process. This non-court process requires a health authority designate to issue a certificate of incapacity.
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| #* 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 PGT becomes a “statutory property guardian”. However, the PPA 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 December 1, 2014 under the PPA, the AGA applies for purposes of the new rules for reassessments and termination.
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| # '''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 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.
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| 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 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.
| | Power of Attorney Act |
| | Representation Agreement Act |
| | Health Care (Consent) and Care Facility (Admission) Act |
| | Public Guardian and Trustee Act |
| | Adult Guardianship Act |
| | Patients Property Act |
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| | This chapter will begin with a discussion of the concept of ‘capacity’ or ‘capability’ (which will be used interchangeably), following by a discussion of the planning mechanisms available to appoint a substitute decision maker and finally to the concept of adult guardianship and how assistance can be provided to vulnerable adults |
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| == '''B. Mental Capacity''' == | | == '''B. Mental Capacity''' == |
