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

{{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 General POAs are rarely used in incapacity planning, as they become no longer in effect when an adult becomes incapable (which is often when a POA is most needed).  

::(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.

:'''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.

: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.

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):  

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.   

==== 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: