Substitute Decision Making for Adult Guardianship (15:IV): Difference between revisions

{{REVIEWED LSLAP | date= July 8, 2022}}

# '''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: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-law_Tests_of_Capacity_FINAL. General POAs are rarely used in incapacity planning, as they become no longer in effect when an adult becomes incapable (which is often when a POA is most needed).  

* A financial institution authorized to carry on trust business under the Financial Institutions Act, RSBC 1996, c 141 [FIA].<br>

::(i) The circumstances in which the alternate is authorized to act in place of the attorney, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and <br>

An adult with capacity is free to choose to sign a POA or not. It is important to be aware of situations where a person may be putting undue pressure (including physical, financial or emotional threats, manipulation or coercion) on the adult. For more information, refer to the discussion of undue influence below in section '''VIII: Adult Abuse and Neglect''' in this chapter. Also refer to the BCLI guide on Undue Influence, which is helpful for understanding the dynamics surrounding undue influence in relation to other legal documents like POAs. The Guide can be found at  

http://www.lawsociety.bc.ca/docs/practice/resources/guide-wills.pdf.

A new POA will need to be signed by both the adult and the attorney(s).  These signatures do not need to be in each other’s presence.  In other words, the attorney and adult may sign the document separately.  However, these signatures must each be witnessed by two capable adults (unless one witness is a lawyer or notary).  

:'''NOTE:'''  These formalities for a POA to be considered valid may be temporarily altered in extenuating circumstances. On May 19, 2020, the Minister of Public Safety and Solicitor General, under the authority of the Emergency Program Act, temporarily suspended these rigid requirements in a Ministerial Order, in order to accommodate for the public health and safety concerns in the wake of the COVID-19 pandemic. Under this Ministerial Order, "electronic presence" may be enough to fulfill the formal requirements for ensuring the validity of a POA or RA when British Columbia is declared to be in a "state of emergency". For more information, see Ministerial Order No. 1M62: https://www.bclaws.ca/civix/document/id/mo/mo/2020_m162.

The adult should '''not''' sign a POA form without seeking legal advice.  For more information on preparing documents, consult the '''Appendix''' or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section [[Sources_and_Resources_for_Adult_Guardianship_(15:VII)#D%7CVII.D:|VII.D: Resource Organizations]] of this chapter.  

Even after a POA has come to an end, an attorney may not use any information gathered during the course of duties as attorney for personal or private profit.  Nor can an attorney solicit customers from the adult’s business. 

 

'''Regarding POAs dealing with Land:''' a POA which authorizes the attorney to deal in land transactions for the adult will expire automatically after t'''hree years from the date of its execution''', unless it is an EPOA or the document expressly exempts itself from that requirement in s 56 of the ''LTA''.

:Refer to BCLI Guide on Undue Influence for a full checklist at: http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf  

Representation Agreements (RAs) are governed by the Representation Agreement Act (RAA). A primary goal of the RAA is to give legal recognition to substitute decision makers, and status for informal helpers that are family and friends. Another important change has been a shift of focus toward support for capacity rather than assessments of incapacity, as the latter can take away an individual’s personal autonomy.   

An individual making an RA may be in a vulnerable position due to family dynamics, cognitive challenges, discriminatory beliefs about people with disabilities, or other factors.  Vulnerability may create more opportunities or potential for abuse.  Anyone helping another create an RA should be aware of indicators of abuse and follow guidelines outlined in this chapter that will help them to notice abuse.  If necessary, the adult should be met with alone to ensure that the adult truly wishes to create an RA and give powers to the potential representative.  

 

RAs may come into effect immediately or upon future incapability. The vast majority of registered RAs come into effect immediately. The first duty of a representative is to consult and abide by the personal wishes, values and beliefs of the adult, at all times.   

Under the current RAA, there are two levels of RAs that an adult can choose to create, named for the section which governs them: s 7 RAs and s 9 RAs. Both types of RAs allow the adult to select any or all areas of decision-making created by the statutory section in which they will authorize the representative to act on their behalf.  

Some RAs allow a routine financial substitute decision making. This includes all s 7 RAs, as well as some s 9 RAs executed prior to September 1, 2011 which authorize a representative to make financial support arrangements as described in s 9(1)(f) of the repealed provisions of the RAA (see s 44.2 of the current RAA). After September 1, 2011, a s 9 RA may only be made concerning personal and health care decisions.

::(ii) Necessary or advisable to protect the interests and enforce the rights of the adult  

in relation to any matter arising out of the performance of that activity.

Section 34(2)(f) of the ''HCCFA'' pertains to refusing substitute consent to health care necessary to preserve life (''HCCFA'' s 18). In a s 9 RA, if a representative is provided with the power to give or refuse consent to health care for the adult, then the representative may give or refuse consent to health care necessary to preserve life (RAA s 9(3)).  Some other health decisions are also excluded from potential powers, e.g.  ‘sterilization for non-therapeutic purposes’ (RAA s 11(2)).  

Prior to September 2011, a s 9 RA could include broad financial powers, equivalent to those given in a POA.  The new ''PAA'' says this broad authority in an RA is now treated as if it were an enduring POA, and the representative must follow the requirements under the PAA to use these powers (s 44. 2 Transitional Provision of the ''PAA'').

Section 5(1)(a) of the RAA specifies that an individual who is 19 years of age or older can be appointed as representative unless that person is:

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:

RAA s 5(4) requires that all representatives for RAs made under s 7 complete a certificate in the prescribed form.

Under s 16(1) of the RAA, a representative must:

When making decisions with the adult or on behalf of the adult, the representative must consult with the adult to determine their current wishes, and comply with the wishes if reasonable (RAA s 16(2)).  

If the current wishes of the adult cannot be determined, then the representative needs to comply with the instructions or wishes the adult expressed while capable (RAA s 16(3)).  A representative cannot make decisions based on their own opinion but must represent the adult’s own wishes to health care providers and others.  In other words, a representative must ‘stand in the shoes’ of the adult and base health care decisions on what the adult would want.   

If the adult’s instructions or wishes are not known, the representative must act on the basis of the adult’s known beliefs and values, or in the adult’s best interests, if their beliefs and values are not known (RAA s 16(4)).   

Upon application by a representative, the court may exempt the representative from the duty to comply with the instructions or wishes the adult expressed while capable (RAA s16(5)).   

A representative is not permitted to delegate authority to another person (RAA s 16(6)).  The exception to this is that a representative who has been appointed to make financial investments on behalf of an adult may delegate authority to qualified investment specialist, including a mutual fund manager (RAA s 16(6.1)).  A representative may also retain the services of a qualified person to assist in carrying out the adult’s instructions or wishes.   

A representative must also keep accounts and records concerning the exercise of authority (RAA s 16(8)).  These accounts and records must be produced upon request of the adult, the appointed monitor, or the PGT.  A representative who has been appointed to make financial decisions must keep the adult’s assets separate from their own (RAA s 16(9)).  An exception to this exists where the assets are owned by the adult and the representative as joint tenants or have been substituted for, or derived from, assets owned by the adult and the representative(s) as joint tenants.   

A representative may request information and records respecting the adult, if the requested information or records relate to the incapacity of the adult or an area of authority granted under the RA (RAA s 18).   

A representative also has a duty to keep information confidential.  A representative must not disclose information or records, except where it is necessary to perform the duties owed to the adult, for an investigation by the PGT, or to make an application to or comply with an order of the court (RAA s 22).  

A representative must not make or change a will for the adult for whom the representative is acting, and any change to a will that is made for an adult by their representative has no force or effect (RAA s 19.01).   

A representative (or an alternative representative or monitor) is not entitled to be paid for acting on behalf of the adult, unless the RA expressly sets out and authorizes the amount or rate of remuneration, or upon application by a representative, the court authorizes the remuneration (RAA s 26(1)).  In addition, an RA cannot authorize a representative to be paid for making any decision under Part 2 of the ''HCCFA'' (RAA s 26(1.1)).  

An adult may appoint a monitor to oversee their chosen representative who is acting under a s 7 or s 9 RA (RAA s 12(3)).  The monitor can be appointed to oversee personal, health care and financial decisions.   

:(b) The adult has appointed two representatives who must act unanimously (RAA s 12(1)).   

Failure to comply with this requirement will make the provision of the RA authorizing the representative to make routine financial decisions invalid (RAA s 12(2)).   

A monitor must be 19 years or older and must be willing and able to perform the duties and to exercise the powers of a monitor (RAA s 12(4)).  An individual named in a representation agreement as a monitor must complete a Monitor's Certificate (RAA s 12(5)).

A monitor may resign by giving written notice to the adult, each representative and any alternate representatives.  The resignation will be effective upon giving notice or at a later date specified in the written notice (RAA s 12(6)).  See s 12 of the RAA for general provisions regarding the appointment and resignation of a monitor.

The monitor’s duties and powers are outlined in s 20 of the RAA.  The monitor must:

* Make reasonable efforts to ensure that the representative is fulfilling their duties (these duties are set out in s 16 of the RAA)

If the monitor is concerned that the representative is not fulfilling their duties, the monitor must raise their concern with the representative(s) and the adult and try to solve the problem through discussion and communication.  The monitor may require the representative to report to them or produce accounts (RAA s 20(4)).  The monitor has a right to visit and speak with the adult at any reasonable time (RAA s 20(2)) and any person with custody or control of the adult is prohibited from hindering the monitor’s access to the adult (RAA s 20(3)).  If, after checking and discussion, the monitor believes that the representative is not following their duties or is abusing the adult in any way, the monitor is legally required to contact the PGT to make a complaint (RAA s 20(5)).

The monitor can be reimbursed for expenses incurred in carrying out their duties (RAA s 26(2)) but can only be paid a fee if provided for in the RA and authorized by the BC Supreme Court (RAA s 26(1)).  Alternatively, if the PGT appoints a replacement monitor, the PGT may authorize payment of a fee (RAA s 21(3)).  

The PGT may appoint a replacement monitor at the request of the representative or other interested person if the initial monitor is unsuitable, no longer able to act or has ceased acting and the adult is no longer capable of making a new RA (RAA s 21(1)).  

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)):

Each representative and each witness for a s 7 RA must also complete a certificate in the prescribed form (RAA s 13(1.1) and s 13(6)). Please consult the Nidus Personal Planning Resource Centre for more information about prescribed forms.  

An RA becomes effective on the day it is executed unless the RA specifies that it is to become effective at some later time based upon a triggering event (e.g. loss of capacity).  According to s 15 of the RAA, the RA must specify how a triggering event is to be confirmed and by whom (e.g. loss of capacity confirmed by two medical professionals).   

:'''NOTE:'''  These formalities for a RA to be considered valid may be temporarily altered in extenuating circumstances. On May 19, 2020, the Minister of Public Safety and Solicitor General, under the authority of the Emergency Program Act, temporarily suspended these rigid requirements in a Ministerial Order, in order to accommodate for the public health and safety concerns in the wake of the COVID-19 pandemic. Under this Ministerial Order, ‘electronic presence’ may be enough to fulfill the formal requirements for ensuring the validity of a POA or RA when British Columbia is declared to be in a ‘state of emergency’. For more information, see Ministerial Order No. 1M62: https://www.bclaws.ca/civix/document/id/mo/mo/2020_m162.

An RA can be changed or revoked by the adult at any time (as long as the adult has mental capacity) (RAA s 27(1)).  The adult must provide written notice to the representative(s), alternative representative(s) and the monitor.  The change or revocation is effective either when written notice is given to each of these persons, or on a later date specified in the written notice (RAA s 27(3.1))  

As of September 1, 2011, agreements from other jurisdictions that perform the same function as an RA in British Columbia may be deemed to be a representation agreement under the RAA. Subject to any further limitations or conditions set out in the regulations, the criteria for accepting an extra-jurisdictional RA is that it must (RAA s 41):  

 

 

• Comply with any prescribed requirements

1. Is the client capable of creating an RA? The presumption is that all adults are capable. The test for capacity depends on whether it is a s 7 or s 9 agreement at issue.  

 

2. Why does the client want to create an RA?

 

 

 

 

 

 

Students should refer to their Supervising Lawyer if there is any doubt that the client understands and appreciates the RA.  Also note that, according to s 3.1 of the RAA, an adult must not be required to have an RA as a condition of receiving any good or service.   

Students also need to remember their legal responsibility to maintain professional conduct and client confidentiality.  If abuse or neglect is suspected, consult with the Supervising Lawyer about how to make a report to the appropriate authority.  Refer to sections '''II. D: Resource Organizations''' and '''VIII: Adult Abuse and Neglect''' in this chapter.  

==== 9. The Bentley (Litigation Guardian) v Maplewood Seniors Care Society Case ====

An important case for both Representation Agreements and Advance Directives is ''Bentley (Litigation Guardian) v  Maplewood Seniors Care Society'', 2014 BCSC 165.  The case highlights issues of consent, the ability of an adult to change their consent from written instructions, and the meaning of health care versus personal care.  A discussion of the case is available by case brief through CLE online:   

1. The refusal of treatment is binding; and<br>

 

2. There is no substitute decision-maker.  

• The health care provider is of the opinion that an adult needs care<br>

 

• The adult is incapable of giving or refusing consent to the health care <br>

 

• The health care provider does not know of any personal guardian or representative who has authority to make decisions for the adult in respect of the proposed health care<br>

 

• The health care provider is aware that the adult has a valid, binding AD that is relevant to the proposed health care   

• If there is a committee of person in existence or a representative under an RA<br>

 

• If there is a verbal instruction or wish<br>

 

• If there is a written instruction but it is not in a properly completed AD<br>

 

• If there is a written instruction from another jurisdiction<br>

 

• If there is a wish in an AD that is not properly signed and witnessed<br>

 

• If there is an AD that does not contain the mandatory informed consumer clause  

• Instructions in the AD do not address the health care decision to be made<br>

 

• Instructions in the AD are so unclear that it cannot be determined whether the adult has given or refused consent to health care<br>

 

• Since the AD was made, while the adult was capable, the adult’s wishes, values or beliefs in relation to a health care decision significantly changed<br>

 

• Since the AD was made, there have been significant changes in medical knowledge, practice or technology that might substantially benefit the adult in relation to health care   

In the absence of an AD, if the adult has not appointed a representative, then the health care provider will seek consent from a Temporary Substitute Decision-Maker (TSDM), as set out in s 16 of the ''HCCFA''.

• A health care provider may not provide any health care for which the adult refuses consent in the AD<br>

 

For more information on preparing documents, consult organisations such as Nidus Personal Planning Resource Centre and Registry.  

• CPR (if cardiac or respiratory arrest occurs)<br>

 

• Artificial nutrition through intravenous or tube feedings<br>

 

• Prolonged maintenance on a respirator (if unable to breathe adequately alone)<br>

 

• Blood cultures, spinal fluid evaluations, and other diagnostic tests<br>

 

• Blood transfusions

 

'''NOTE:'''   The adult should have their AD added to their doctor’s patient files, their hospital records, and any other relevant agencies.  If the AD is revoked or altered, the adult should advise each of these agencies or provide them with the new or revised AD.   

• A competent person has the right to refuse, or withdraw consent to, any clinically indicated treatment, including life-saving or life-sustaining treatment (Principle 3).  In this situation, the healthcare professional will discuss with the patient whether the patient wishes to be resuscitated and a notation will be made on the person’s chart.<br>

• When a person is incompetent, treatment decisions must be based on their wishes, if these are known.  The person's decision may be found in an advance directive or may have been communicated to the physician, other members of the health care team or other relevant people.  In some jurisdictions, legislation specifically addresses the issue of decision-making concerning medical treatment for incompetent people; the legislative requirements should be followed (Principle 4).  

1. Is the client capable of creating an AD? The presumption is that all adults are capable. The test is the ability to understand and appreciate the meaning of what they are trying to do in this particular case.  

 

2. Why does the client want to create an AD?

 

3. What types of health care provider does the client want to give consent to?  

 

4. What types of health care provider does the client want to refuse consent to?  

 

5. Does the client have an RA in place?  What is the relationship between the client and their chosen representative?

 

6. Does the client want the representative to be able to give or refuse consent, notwithstanding the AD?  

If there are concerns that a person may be abused or neglected, or at risk of being abused or neglected, the student should discuss these concerns with the client and provide information and access to appropriate support services (e.g., Seniors Abuse & Information Line at 604-437-1940 or 1-866-437-1940).  Students must also remember their legal responsibility to maintain professional conduct and client confidentiality.  If abuse or neglect is suspected, consult with the Supervising Lawyer about how and whether to make a report to the appropriate authority.

• The adult's spouse or partner<br>

 

• The adult's child who is over 19<br>

 

• The adult's parent<br>

 

• The adult's sibling<br>

 

• The adult’s grandparent<br>

 

• The adult’s grandchild<br>

 

• Other relatives by birth or adoption (but not in-laws or step-children)

• Close friend<br>

 

• Persons immediately related by marriage (including in-laws and step-children)   

• Be at least 19 years of age<br>

 

• Have been in contact with the adult during the preceding 12 months<br>

 

• Have no disputes with the adult<br>

 

• Be capable of giving, refusing or revoking substitute consent<br>

 

• Be willing to comply with the duties in section 19

The TSDM must act in accordance with the adult patient’s wishes, values and beliefs, when the patient is unable to provide their own consent and does not have an appointed committee or a representative.

Part 3 of the ''Health Care (Consent) and Care Facility (Admissions) Act'' (HCCFA) describes consent requirements for admission of adults into care facilities. If an adult is incapable of providing consent for admission into a care facility, a manager of the facility may admit an adult to the facility if consent is provided by a committee of person.  For more information on committees, please refer to '''Section V: ADULT GUARDIANSHIP''' in this chapter.

• The adult’s representative, if they have authority to give consent to admission <br>

 

• The adult’s spouse<br>

 

• The adult’s child<br>

 

• The adult’s parent<br>

 

• The adult’s sibling<br>

 

• The adult’s grandparent<br>

 

• Anybody related by birth<br>

 

• A close friend<br>

 

• A person immediately related to the family by marriage

• The adult’s current wishes<br>

 

• The adult’s previously expressed wishes and known beliefs and value<br>

 

• Whether the adult would benefit from admission<br>

 

• What other options may be available and appropriate or less restrictive to support the adult’s care

• abortion<br>

 

• electroconvulsive therapy<br>

 

• psychosurgery<br>

 

• removal of tissue from a living human body for implantation in another human body or for education or research<br>

 

• experimental health care, participation in a program that has not been approved by the appropriate committee<br>

 

• any treatment that involves using “aversive stimuli” to cause a behavioural change

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