Chapter Seven Legal Issues in Residential Care References

References

1. Adapted from Advocacy Centre for the Elderly (ACE), Long Term Care Facility Advocate’s Manual, January 2004. [“ACE, Manual”]
2. ACE, Manual.
3. ACE, Manual.
4. Representation Agreement Act [RSBC 1996] c. 405, s. 3.1. [“RAA”] Last accessed: April 22, 2014.
5. Health Care Consent and Care Facility (Admission) Act, s. 19.91, [“HCCCFA”} Last accessed: April 22, 2014.
6. ACE, Manual.
7. Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181 [ “HCCCFA”]
8. HCCCFAA, s. 16 (2)
9. “Spouse” includes people in “marriage-like relationships”, covering both formalized and common law marriages, as well as same sex marriage-like relationships. HCCCFA, s. 1
10. HCCCFAA, s. 16 (1).
11. HCCCFAA, s. 16 (4).
12. HCCCFAA, s. 16 (3).
13. HCCCFAA, s. S. 17(1).
14. HCCCFA, s. 1 “health care” subsection (b) (ii)
15. HCCCFA, s. 19 (1) (a) (i).
16. HCCCCFA, s. 19 (1) (b).
17. HCCCFA, s. 19 (1) (a) (ii).
18. HCCCFA, s.19 (2).
19. HCCCFA, s. 19 (3). Also NIDUS, Health Care Consent: Restrictions on the Authority of a Temporary Substitute Decision Maker. Online: http://www.nidus.ca/PDFs/Nidus_Info_Restrictions_on_Authority_TSDM.pdf (Last accessed: May 1, 2014).
20. HCCCFAA, s. S. 17 (6).
21. HCCCFAA, s. S. 17 (8).
22. HCCCFA, s. 17 (2.2) (a).
23. HCCCFAA, s. S. 17 (5).
24. HCCCFAA, s. 33 (2) (a).
25. HCCCFAA, s. 33 (2) (b).
26. Health Care Consent Regulation B.C. Reg. 20/2000, as amended, s. 5. [“HCCCFA Reg”]
27. HCCCFAA, s. 33.1.
28. HCCCFAA, s. 16 (4).
29. ACE, Manual.
30. Power of Attorney Act [RSBC 1996]c 370, s. 1 [“POAA”]
31. POAA, s. 12 (2). Adult may make enduring power of attorney unless incapable.\
    1. 12 (1)An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.
    2. (2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:
       1. (a) the property the adult has and its approximate value;
       2. (b) the obligations the adult owes to his or her dependants;
       3. (c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;
       4. (d) that, unless the attorney manages the adult's business and property prudently, their value may decline;
       5. (e) that the attorney might misuse the attorney's authority;
       6. (f) that the adult may, if capable, revoke the enduring power of attorney;
       7. (g) any other prescribed matter.
32. POAA, s. 17 (1).
33. POAA, s. s27 (1).
34. Online: www.nidus.ca (Last accessed: May 1, 2014).
35. The enduring power of attorney or a representation agreement for property is suspended if the person granting the power has been “certified” under the Patient Property Act. [RSBC 1996] c. 349, s. 19.1.
36. POAA, s. 30 (4) (b). For some people, the duties may continue but only under other legal authority, e.g. as executor of will, administrator of the estate, representative grant.
37. POAA, s. 28.
38. POAA, s. 31 (3).
39. POAA, s. 35 (2).
40. POAA, s. 35.
41. POAA, s. 35 (1).
42. POAA, s. 29 (2) (d) (i).
43. POAA, s.29 (2) (d).
44. POAA, s. 34 (2) (a).
45. POAA, s. 34 (2) (c ) (i).
46. POAA, s. 34 (2) (b).
47. POAA, s. 34 (2).
48. POAA, s. 34 (3).
49. Adult Guardianship Act [RSBC 1996] c. 6 [“AGA”]
50. Patients Property Act, [RSBC 1996] c. 349. {“PPA”]
51. Goodrich v. British Columbia (Registrar of Land Titles), [2004] BCCA 100
52. Adult Guardianship and Planning Statutes Amendment Act, 2007, Bill 29.
53. Canadian Bankers Association. Consumer Information. “Protecting yourself from financial abuse”. Online: http://www.cba.ca/en/consumer-information/92-protecting-yourself-from-financial-abuse/695-powers-of-attorney-bank-requirements {“CBA, 1”] (Last accessed: May 1, 2014).
54. Canadian Bankers Association. Preventing Financial Abuse. Online: http://www.cba.ca/contents/files/misc/msc-preventing-finabuse-print-en.pdf [“CBA, 2”] (Last accessed: May1, 2014).
55. CBA, 2, ibid.
56. L. Beachell, of the Council of Canadians with Disabilities, comment in Tomlinson, K. (Nov. 12, 2012). “RBC blocks housebound senior from getting her money .” CBC News. Online: http://www.cbc.ca/news/canada/british-columbia/rbc-blocks-housebound-senior-from-getting-her-money-1.1210222 (Last accessed: May 1, 2014).
57. POAA, s. 19(1).
58. POAA, s. 19(1).
59. POAA, s.19.
60. POAA, s. 19.
61. POAA, c.370, 19 (3) (c).
62. POAA, s.19 (3).
63. There is an exception made where the individual working the facility is a child, parent or spouse of the adult.
64. POAA, s. 32 (1) (a) and (b); also, s. 32 (2).
65. Arguably, there are situations where access to health information might seem to be necessary, e.g. to determine payment of certain medical bills. Whether the attorney could request is debatable, though.
66. K. Whalley, Power of Attorney Pitfalls. Online: http://whaleyestatelitigation.com/resources/WEL_PowerofAttorneyPitfalls.pdf [“Whalley”] (Last accessed: May 1, 2014).
67. Whalley, ibid.
68. Whalley, ibid.
69. Gordon, R. M. (1992). Material abuse and powers of attorney in Canada: a preliminary examination. Journal of Elder Abuse and Neglect, 4 (1-2). 173-193. [“Gordon”]
70. POAA, s. 19
71. Government of BC. (November 2009), p. 3. Online: “Home and Community Care Information Guide for the New Residential Care Rate Structure,” Also see: http://cupe.ca/updir/Residential_LTC_charges_and_income_allowances_across_Canada-2.pdf (Last accessed: May 1, 2014).
72. Health and Community Care Policy Manual. 6. F- Residential Care, “ Benefits and Allowable Charges” (October 15, 2012)
73. Mclellan Herbert. Estate litigation 2011: contested committeeship applications. Online: http://www.mclellanherbert.com/Estate-Litigation-2011-Contested-Committeeship-Applications.pdf (Last accessed: May 1, 2014).
74. Gordon.
75. An exception is made if that person is their child, parent or spouse.
76. RAA, s. 8 (1).
77. It does exclude the types of major health care identified in the regulation, such as ECT, psychosurgery; experimental health care; medical research; negative stimulus (aversive) therapy; tissue removal for implantation.
78. RAA, s. 7 (1)
79. RAA, s. 8 (2)
80. RRA, s. 12 (1)
81. RRA, s. 16 (9)
82. RRA, s. 13
83. RRA, s. 16
84. Canadian Centre for Elder Law. ( March 2014) understanding the lived experiences of supported decision-making in Canada: A Study Paper. Prepared for Law Commission of Ontario. Online: http://www.lco-cdo.org/capacity-guardianship-commissioned-paper-ccel.pdf (Last accessed: May 1, 2014).
85. As a result, these matters would likely either be unresolved or go to court.
86. PPA, s. 3 (1) sets out the court application process. Under the Patients Property Act, there are two processes for appointing a committee. The Supreme Court can appoint a public agency or private individual committee of estate and/or person by court order. Health authorities can appoint a committee of estate and that committee of estate must be a public agency, namely the Public Guardian and Trustee. Pg. 28. Office of the British Columbia Ombudsperson. (February 2013). No longer your decision: British Columbia’s process for appointing the Public Guardian and Trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.ombudsman.bc.ca/images/resources/reports/Special_Reports/no_longer_your_decision.pdf (Last accessed: May 1, 2014). [ “Ombuds, No longer your decision”]
87. Ombuds, No longer your decision.
88. Bill 32 -- 2006 Adult Guardianship and Personal Planning Statutes Amendment Act, 2006.
89. POAA, s. 30 (3).
90. HCCCFA, s.19.5.
91. HCCCFA, 19.1 (2).
92. HCCFA, s. 19.1.
93. HCCCFA, s. 19.8.
94. HCCCFA, s. 19. 1 (2).
95. See for example, Canadian Bar Association. (June 2010). Advance Care Planning. National Elder Law, Health Law, and Wills, Estates and Trust Law Sections, CBA. Online: http://www.cba.org/cba/submissions/pdf/10-46-eng.pdf at pg. 4 [“CBA, Elder Law”] (Last accessed: May 1, 2014).
96. Applegate, K., Crissman, C. , Morgan, B. & Reid, B. “Advance Directives.” University of Kentucky, Department of Philosophy. Also see Sabatino, C. (October 2007). Advance Directives and Advance Care Planning: Legal and Policy Issues. American Bar Association, Commission on Law and Aging. U.S. Department of Health and Human Services Assistant Secretary for Planning and Evaluation Office of Disability, Aging and Long-Term Care Policy. Online: http://aspe.hhs.gov/daltcp/reports/2007/adacplpi.pdf Last accessed: April 22, 2014. Sabatino notes that conventional advance directives appear to have had relatively little impact because too few people make use of the legal tools; and when they do, they do not understand the forms they complete nor the future decisions that might have to be made. The forms themselves do not provide much guidance; the persons’ goals and preferences for care may change; and even if providers know one exists, it often does not affect care.
97. CBA, Elder Law.
98. Patients Property Act [RSBC 1996] c. 349 [ “PPA”].

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

Something which can be owned. See "chattels" and "real property."

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

The person responsible for carrying out the instructions in a will and wrapping up a deceased person's estate and debts. The lovely feminine form of the word is "executrix," though the masculine form is commonly applied to executrices and executors both. See "estate," "testator," and "will."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.