Introduction to Adult Guardianship and Substitute Decision-Making (15:I)
A. The Scope of Guardianship and Substitute Decision-Making Law in BC
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:
- Mental Capacity: The law presumes that an adult is capable of making decisions and provides statutory tests for determining incapability in different contexts.
- 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: Enduring Power of Attorney (for financial decisions only); and Representation Agreement (for health care consent, personal care decisions, and routine financial decision-making). The law also allows a capable adult to provide instructions giving or refusing consent to specific health care in an Advance Directive.
- 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 AGA the Public Guardian and Trustee 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).
- NOTE: Effective December 1, 2014 Part 2.1 of the AGA replaced the PPA rules governing the process for issuing and terminating a certificate of incapacity. Under the new rules, when a certificate is issued the Public Guardian and Trustee becomes a “statutory property guardian”. However, the PPA (effective December 1, 2014) 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 Dec 1, 2014 under the PPA, the AGA applies for purposes of the new rules for reassessments and termination.
- 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 Public Guardian and Trustee 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.
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 the person’s 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 need of a guardian.
B. Mental Capacity
NOTE: For the purposes of this manual, there is no distinction between “mental capacity”, “capacity” and “capability”. The terms are used interchangeably.
In BC the law presumes that an adult is capable to make personal and legal decisions (e.g. decisions regarding health, life, property, assets, financial arrangements, etc.), unless there is evidence to the contrary. A person may become incapable at a point in his or her life due to illness, disability or accident. If an adult is, or becomes incapable, another person (or persons) can become the substitute decision-maker(s), who acts on the wishes and values of the incapable adult. A substitute decision-maker can be appointed in either of the following ways:
- an adult who meets the appropriate test for mental capacity can name the substitute decision-maker(s) in an Advance Planning Document (e.g. an Enduring Power of Attorney or a Representation Agreement,); or
- an adult who is no longer capable of making financial or health care decisions may have a guardian (called a Committee of Estate or Committee of the Person) appointed by the courts to make decisions. The Public Guardian and Trustee may also become a Statutory Property Guardian if a certificate of incapability is issued by a “health authority designate” stating the adult is incapable of managing his or her financial affairs. Note that pursuant to s 9 of the PPA an adult may nominate a committee and the nomination document may be one of an adult’s Advance Planning Documents.
- An adult may also make an advance directive that consents to, or refuses, specified health care.
An adult who has made a Power of Attorney, Representation Agreement or Advance Directive, maintains the right to make decisions about legal, financial and health care matters, even after these legal documents are made. Once the adult is incapable, the substitute decision-maker has a legal duty to act in accordance with the adult’s instructions, values, wishes and beliefs, regardless of capacity. (s19(2), PAA; s 16, RAA; s 19, HCCFA). The substitute decision maker also has a duty, to the extent reasonable, to foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult.
The appropriate test for capability to make an Advance Planning document is set out in the relevant legislation. The statutory tests for incapability in each statute are summarized below. In many cases, Advance Planning Documents will specify what is required to determine incapability in order to bypass a court process.
1. Power of Attorney (POA )
As mentioned above, an adult is presumed to have capacity, unless proven otherwise. According to s 11 of the Power of Attorney Act, RSBC 1996, c 370 [PAA], an adult is presumed capable of making decisions about financial affairs and understanding the nature and consequences of making, changing, or revoking an Enduring Power of Attorney (EPOA).
Difficulties or barriers in communicating are not adequate grounds for determining that an adult is incapable. Instead, incapacity is determined by a more thorough assessment, often as specified in Advance Planning Documents (i.e. a Springing POA will normally specify under what conditions a person is considered incapable, such as on the basis of medical opinions from two doctors or by an assessment of the court.).
The PAA sets out a specific statutory test of incapability in s 12, which reaffirms that an adult is presumed capable to make an EPOA, unless there is evidence that the adult is unable to understand the nature and consequences of the EPOA. According to s 12(2), an adult is considered incapable of understanding the nature and consequences of an EPOA if the adult cannot understand all of the following:
- the property the adult has and its approximate value;
- the obligations the adult owes to his or her dependants;
- 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 power of attorney;
- that, unless the attorney manages the adult's business and property prudently, their value may decline;
- that the attorney might misuse the attorney’s authority;
- that the adult may, if capable, revoke the enduring power of attorney; and
- any other prescribed matter.
NOTE: This is a complex and rapidly changing area of the law. This above statutory test for incapacity in s 12(2) of the PAA came into effect on September 1, 2011. This test is significantly broad in scope and appears to only apply to an EPOA. However, it remains to be seen how this test will be interpreted by the courts. As of July 23, 2015, there has been no judicial interpretation of this test. Consult your supervising lawyer for guidance on assessing capacity for other types of Powers of Attorney, or if there is a greater need for clarity about the validity of these documents.
2. Health Care Consent
The Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181 [HCCFA] states that every adult who is capable of giving or refusing consent to health care has the right to (s 4):
- give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death;
- select a particular form of available health care on any grounds, including moral or religious grounds;
- revoke consent;
- expect that a decision to give, refuse or revoke consent will be respected; and
- be involved to the greatest degree possible in all case planning and decision making.
According to s 3 of the HCCFA, an adult is presumed capable, unless proven otherwise, when:
- giving, refusing or revoking consent to health care; and
- deciding to apply for admission to a care facility, accepting a facility care proposal, or moving out of a care facility.
Difficulties or barriers in communicating are not adequate grounds for deciding that an adult is incapable. For example, in Bentley (Litigation guardian of) v. Maplewood Seniors Care Society,  BCJ No 181 at paragraph 55 Justice Greyell stated that the legislature “precluded the possibility that a challenge to an adult's capability could be premised on her method of communicating”. Instead, incapacity is determined in accordance with s 7 of the HCCFA, which requires a health care provider to decide whether or not the adult understands the information given by the health care provider and that the information applies to the situation of the adult in need of health care.
3. Temporary Substitute Decision Makers
If a heath care provider determines that an adult is not capable of consenting to health care that is being proposed, the health care provider will need to obtain consent from another adult, who is able to give or refuse consent on behalf of the incapable adult. The health care provider can get consent from a substitute decision-maker named in a Representation Agreement. An individual may also document consent or refuse consent in advance through an Advance Directive. With the exception of the provision of emergency health care (s 12(1), HCCFA), the health care provider will need to get consent from a Temporary Substitute Decision-maker (TSDM), if neither a Representation Agreement nor an Advance Direction are in place (or the AD does not address the medical issue for which consent is needed), and there is no appointed guardian (called a Committee of Person).
The HCCFA provides a hierarchical, default list of TSDMs, as follows (s 16):
- adult child (over 19 years old)
- brother or sister
- other relatives by birth or adoption (not in-laws or step-children)
- close friend
- person immediately related by marriage (includes in-laws or step-children)
A TSDM has authority to decide whether to give or refuse consent, in accordance with the adult patient’s wishes, values and beliefs. The authority of a TSDM to give or refuse consent is generally valid for 21 days, but this time period may be extended upon written confirmation by the health care provider (ss 17 and 19, HCCFA). If the health care provider has reasonable grounds to believe that the adult patient may be capable during this time period, the health care provider must again determine the adult’s capability in accordance with s 7 of the HCCFA. If an adult patient is deemed to be capable again, consent must be given or refused by the adult patient. For more information, refer to section V.H.1: Temporary Substitute Decision-makers (TSDM) in this chapter.
4. Representation Agreement (RA)
An adult who meets the requisite mental capacity test may create a Representation Agreement (RA), which is a legally-binding document that appoints a substitute or supportive decision-maker and provide instructions with respect to health care decisions, personal care, and/or routine financial decisions. See s 7 and 9 of the Representation Agreement Act, RSBC 1996, c 405 [RAA]. Section 7 and 9 RAs deal with different types of decisions (see section V.A: Types of Representation Agreements) and are subject to distinct different mental capacity standards. In British Columbia, an adult is presumed to have capacity, unless proven otherwise. According to s 3(1) of the [RAA], an adult is presumed to be capable of:
- making, changing or revoking a s 7 or s 9 RA;
- making decisions about personal care, health care and legal matters; and
- conducting the routine management of their own financial affairs.
An adult who has diminished capacity may still be allowed to make, change or revoke a s 7 RA, even when the adult is incapable of: (s 8(1), RAA)
- making a contract;
- managing his or her health care, personal care or legal matters; or
- the routine management of his or her financial affairs.
The statutory test to determine incapacity for a standard s 7 RA is set out in s 8(2) of the RAA. In determining whether an adult is incapable of making a s 7 RA, the following factors will be relevant:
- whether the adult communicates a desire to have a representative make, help make, or stop making decisions;
- whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
- whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the Representative may make, or stop making, decisions or choices that affect the adult; and
- whether the adult has a relationship with the representative that is characterized by trust.
The statutory test to determine incapability for non-standard, s 9 representation agreements, is set out in s 10 of the RAA. An adult is incapable of making a s 9 RA if the adult is “incapable of understanding the nature and consequences of the proposed agreement”.
For more information and an explanation of the differences between a s 7 RA and a s 9 RA, refer to section V.A: Types of Representation Agreements in this chapter.
5. Advance Directive (AD)
A capable adult may also choose to make an Advance Directive (AD), which is a legally-binding document that provides instructions with respect to giving or refusing consent to health care treatment or procedures. According to s 19.1 of the HCCFA, an adult is presumed to have capacity to make an AD, unless there is evidence that he or she is incapable of understanding the nature and consequences of the AD.
An adult is incapable of understanding the nature and consequences of an AD, if the adult cannot understand:
- the scope and effect of the health care instructions set out in the AD; and
- that a temporary substitute decision-maker (TSDM) will not be chosen by the health care provider to make decisions on behalf of the adult about the health care described in the AD except in circumstances set out in s 19.8 of the HCCFA.
For more information about the requirements and scope of ADs, refer to section VI: Advance Directives in this chapter.
NOTE: Health care consent is a complex and rapidly changing area of the law. Consult your Supervising Lawyer for guidance on assessing capacity to make an RA or AD, or if there is a greater need for clarity about the legal validity of these documents.
6. Designated Agencies – Support and Assistance
Another area where the issue of capacity may be raised is when an adult is experiencing abuse, neglect or self-neglect. Under Part 3 of the AGA, anyone can make a report to a Designated Agency who will meet with the adult, investigate whether or not the adult is experiencing abuse, neglect or self-neglect, and, if necessary, establish a support and assistance plan to protect the adult.
An adult who is in need of support and assistance does not necessarily lack mental capacity. In fact, according to s 3(1) of the AGA, an adult is presumed to be capable of making decisions about personal care, health care and financial affairs, regardless of whether the adult is vulnerable to abuse, neglect or self-neglect.
An adult’s way of communicating with others is not grounds for determining that an adult is incapable. Instead, the statutory tests of incapacity apply. For applications concerning guardianship, a formal assessment of capacity must be done in accordance with the Adult Guardianship (Abuse and Neglect) Regulations [AGR]. According to s 3(4) of the AGR, a capacity assessor must base the decision of incapability on whether the adult understands:
- the services described in the support and assistance plan;
- why the services are being offered to the adult; and
- the consequences to the adult of not accepting the services.
The AGA states that the adult who is in need of support and assistance must be involved in decisions about how to seek and provide whatever support and assistance is needed to prevent abuse or neglect. It is also important to remember that an adult with capacity has the legal right to refuse support or assistance. For more information about responding to abuse and neglect, refer to section VIII: Abuse and Neglect in this chapter.