Substitute Decision Making for Adult Guardianship (15:IV)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 1, 2020.|
A. Power of Attorney
A Power of Attorney (POA) is a legally binding document that allows a capable adult (called the ‘adult’) to grant the authority to other capable adult(s) (called the ‘attorney(s)’) to make financial and legal decisions on their behalf.
The adult can make very individualized and specific provisions in a POA. For example, a POA can be very narrow in scope, allowing the attorney(s) to do one specific act (e.g. cashing a pension cheque, transferring property, or paying insurance). Alternatively, the adult can make a POA that is intentionally broad in scope, allowing the attorney(s) to handle all financial decisions on their behalf.
The following sections explain: what types of POAs can be made; the test for capacity to create a POA and what can be done in the event of incapacity; who is involved in a POA; how a POA can be made, changed, or revoked, and useful information for LSLAP students dealing with POAs.
1. Overview of Power of Attorney
a) Types of Power of Attorney (POA)
There are two types of POAs. It is important to find out what type of POA would best suit the adult’s needs. The first is governed by Part 1 of the PAA, and is sometimes called a ‘General POA’. The second is governed by Parts 2 and 3 of the PAA, and is sometimes called an ‘Enduring POA’. The key difference between the two is that a POA under Part 1 ends once the adult becomes incapable, while a POA under Parts 2 and 3 continues even when the adult becomes incapable. Questions to ask include:
• What tasks does the adult want the attorney to be able to perform?
• When does the adult want the attorney to begin to act?
• Does the adult want the POA to be used for a limited time only?
• Does the adult want the POA to be in effect immediately or only when they become incapable?
• How will incapacity be decided?
• Do the adult’s powers terminate if and when the adult becomes incapable?
The two types of POA are as follows:
- 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).
- Enduring: Enduring POAs (EPOAs) are governed by Parts 2 and 3 of the PAA. Enduring POAs continue in the event that the adult loses capacity, and only ends upon revocation or death. These are the most common type of POA, they allow the attorney to act while the adult is capable and continue when/if the adult becomes incapable.
EPOAs can be effective immediately, or ‘springing’. A ‘springing’ EPOA stays dormant until a future date or event (i.e. the loss of capacity) and ends only upon death. The adult can decide in advance how capacity is to be determined, such as by requiring the agreement of a family member and two doctors. A springing EPOA is not active until the adult loses capacity.
See Goodrich v British Columbia (Registrar of Land Titles), 2004 BCCA 100. (The BCCA decided that even though the PAA does not explicitly allow for a springing power of attorney, it is nevertheless possible to make one.)
Both general POAs and EPOAs can be limited in relation to assets, duration, or specific types of transactions. For example, an adult could draft a POA for the attorney to manage their bank accounts and pay their bills while they are on vacation, but not give authority to the attorney over their real estate and investments. A bank’s POA will be limited to transactions at that institution for the accounts identified.
In most cases, the POA will be effective immediately, once signed and witnessed by the adult and attorney(s), and will continue on an ongoing basis.
Unless otherwise specified, all usage of the term ‘POA’ in the subsequent sections of this chapter refers to an Enduring Power of Attorney as governed by Part 2 of the PAA.
b) Who can Appoint and Revoke an Attorney
The ‘adult’ is any adult who makes a POA to appoint an attorney to make financial decisions on their behalf. The adult must be (PAA s10 and 12):
• An individual who is 19 years of age or older
• Mentally capable of making a POA
• Acting voluntarily, or on their own
The adult must have mental capacity at the time that the POA is signed, and must be able to understand the nature and implications of a POA. An adult who has mental capacity has the legal right to make decisions, including the legal right to choose whether to:
• Determine the type, scope or purpose of the POA
• Define the roles and authority of the appointed attorney(s)
• Provide instructions to the attorney(s)
• Express wishes, values and beliefs
• Change or revoke a POA
c) The Test of Capacity
An adult is presumed to be capable of making decisions about their financial affairs and of understanding the nature and consequences of making, changing or revoking an enduring POA (section 11 PAA).
Pursuant to section 12 of the PAA, an adult is incapable of understand ing the nature and consequences of the proposed enduring power of an attorney if the adult cannot understand all of the following:
(a) the property the adult has and its approximate value;
(b) the obligations the adult owes to their dependants;
(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;
(d) that, unless the attorney manages the adult’s business and property prudently, their value may decline;
(e) that the attorney may misuse the attorney’s authority;
(f) that the adult may, if capable, revoke the enduring power of attorney;
any other prescribed matter.
If an individual does not complete a POA while they are capable, and later becomes incapable of managing their financial affairs, the adult may be able to create a Representation Agreement, which has a lower test of capacity. Alternatively, a capable, interested person can apply to the court for committeeship, in order to manage the incapable adult’s affairs.
An attorney is an adult who is capable and willing to carry out the financial tasks and/or make financial decisions on behalf of the adult. An attorney is required to sign the POA to signify that they accept the role and the responsibility. If an attorney is not willing to accept this role, then the attorney should not sign the POA. In this context, an ‘attorney’ does not need to be a lawyer, although an adult may wish to appoint their lawyer to act as an attorney. An attorney must be (PAA s 18 and s 19):
• An adult (i. e. at least 19 years of age), the PGT or certain financial institutions
• Mentally capable to carry out the financial tasks
• Able to understand and fulfill their legal duties
• Able and willing to act in accordance with the instructions, wishes, values and beliefs of the adult
• Acting voluntarily/on their own.
Section 18 of the PAA states who may act as an attorney. One or more of the following persons can be named:
• An individual, other than:
o An individual who provides personal care or health care services to the adult for compensation or,
o An employee of a facility where the adult resides and where the adult receives personal care or health services.
o Exception: if the individual is a child, parent or spouse of the adult, in which case they may be named as attorney
• The Public Guardian and Trustee
• A financial institution authorized to carry on trust business under the Financial Institutions Act, RSBC 1996, c 141 [FIA].
More than one person can act as an attorney. An adult who names more than one attorney may assign each a different area of authority, or all or part of the same area of authority (PAA s 18(4)). The adult might prefer to define distinct roles for each attorney (i.e. appoint one as the attorney for certain transactions, such as personal banking and a second individual as their attorney over different matters, such as property). The POA should be clear about the roles and responsibilities of each attorney and whether or not unanimous consent is necessary in each type of transaction.
According to s 18(5) of the PAA, where an adult appoints multiple attorneys for all or part of the same area of authority, the attorneys must act unanimously in exercising their authority. The exception to this rule is where the adult specifically does the following in the POA:
• Describes circumstances where the attorneys do not have to act unanimously
• Sets out how a conflict between attorneys is to be resolved
• Authorizes an attorney to act only as an alternate and sets out:
o (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
o (ii) The limits or conditions if any, on the exercise of authority by the alternate.
Where a POA appoints two or more attorneys to act for an adult, all the attorneys will need to be in agreement regarding decisions made for the adult, unless otherwise specified in the POA.
Appointing more than one person has potential advantages and disadvantages. The practice can reduce the potential for an attorney to misuse their power by providing built-in scrutiny by a second attorney. However, having multiple attorneys may make the decision-making process complicated and inefficient.
e) The Public Guardian and Trustee (PGT)
An adult who does not have relatives or friends who are willing and able to serve as an attorney may ask the PGT to consider acting as an attorney in the event of incapacity. According to s 6(c) and s 23 of the PGTA, the PGT may agree to act as attorney for a fee. If an adult needs to appoint the PGT as attorney, contact the Public Guardian and Trustee. It is important to note that the PGT will only act as a representative in matters of finance and will not be able to act as a representative for health care decisions.
Another circumstance where the PGT may become involved is where an attorney is misusing a POA or otherwise failing to fulfill their legal obligations. Any person may notify the PGT if there is a reason to believe that fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, change or revoke financial or legal document(s). Any person may also notify the PGT where an attorney is:
• Incapable of acting as attorney
• Abusing or neglecting the adult
• Failing to follow the instructions in the POA
• Otherwise failing to comply with legal duties of an attorney
For more information about the role of the PGT where there is financial abuse, neglect or self-neglect, refer to section VIII: Adult Abuse and Neglect in this chapter.
For more information on the role of the PGT in general, please visit BC’s PGT website: https://www.trustee.bc.ca/Pages/default.aspx.
2. Creating a Power of Attorney
The most important aspect of drafting a POA is to ensure that the document accurately reflects the adult’s specific wishes. Questions to ask include:
• What does the adult want to do?
• Does the adult have capacity to make this POA?
• Does the adult understand the nature of this POA?
• Does the adult understand the potential legal impact of this POA?
• Has the adult received suitable independent legal advice?
• What type of authority does the attorney need?
• Does the adult want to limit the attorney’s authority?
• When should the POA be in effect (i.e. ongoing or limited)?
• Has the adult created other POAs?
Any adult can draft a POA. However, it is advisable to consult a lawyer or notary prior to finalizing a POA. Independent legal advice will help ensure the POA only grants an attorney the powers and authority that the adult wants to give.
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.
Formalities are the specific requirements for a POA to be considered valid (i.e. whether the POA has to be signed or witnessed). According to s 16 and s 17 of the PAA, an enduring POA must be:
• In writing
• Signed and dated by the adult in the presence of two witnesses (only one witness is required if that witness is a lawyer who is a member of the Law Society of British Columbia or a notary who is a member in good standing of the Society of Notaries Public of British Columbia)
• Signed and dated by the attorney(s) who agree to act in the presence of two witnesses (unless one witness is a lawyer or a notary)
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).
As of September 1, 2011, an attorney must sign an EPOA in the presence of two witnesses before assuming their authority (PAA s 17). If a person who is named as an attorney does not sign the POA, then the person is not required or legally able to act as an attorney. If a person named as attorney does not sign, the authority of any other named attorney is not affected (unless the POA states otherwise).
According to s 16(6) of the PAA, the following persons must not act as a witness to the signing of an EPOA:
• A person named as an attorney
• A spouse, child or parent of a person named as an attorney
• An employee or agent of a person named as an attorney, unless the person named as an attorney is a lawyer, a notary, the PGT or a financial institution authorized to carry on trust business under the Financial Institutions Act
• A person who is not at least 19 years of age
• A person who does not understand the type of communication used by the adult (unless interpretive assistance is used)
The PAA provides a standard form that can be used to create a POA. The most up-to-date version of this form is generally also posted on the government of BC website: www.bclaws.ca.
Although there is no legal requirement to register a POA, an EPOA can be registered through the Personal Planning Registry. More information about this service is available on their website: http://www.nidus.ca.
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.
b) Land Transactions
An adult might authorize the attorney(s) to make a transaction involving land (i.e. transfer of title, closure of sale of property, etc) on behalf of the adult. If the authority of an attorney involves land transactions, then the POA must be executed and witnessed in accordance with the Land Title Act, RSBC 1996, c 250 [LTA].
A POA that grants authority to the attorney to make land transactions will expire after 3 years of its execution. There is an exception to this where an adult signs an EPOA, or the POA expressly exempts itself from these provisions (LTA s 56).
A POA that confers the power to deal with land transactions and registration of land titles must be witnessed and notarized by a lawyer who is a member of the Law Society of British Columbia or a notary who is a member of the Society of Notaries Public of British Columbia. This is because POAs that involve land transactions require more care and consultation to ensure that the adult is aware of the legal impact of conveying this authority to the attorney(s).
c) Banks, Credit Unions and Other Financial Service Providers
Financial institutions and agents (e.g. banks, credit unions, investment advisors, customer service representatives, estate planners, etc.) may ask individuals to complete their institution’s POA. This request normally occurs where an adult wishes to grant the attorney access to bank accounts to pay bills, make transfers, etc. The financial institution may request that the adult and attorney fill out their institution’s Limited POA. For more information about financial institution’s POA requirements and joint accounts refer to the Canadian Bankers Association website: https://cba.ca/powers-of-attorney-bank-requirements?l=en-us.
If the adult signs an institution’s POA, this can sometimes create a conflict between POAs. These important questions should be asked:
• What does the adult want to do?
• What kind of POA should apply?
• Is the financial institution’s form suitable?
• Has the adult received suitable independent legal advice?
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 II. D: Resource Organizations of this chapter.
NOTE: It is good practice to notify financial institutions and agents that a new POA has been made and/or that the previous POA has been revoked. This can be done in writing, with a copy of the new POA.
3. Other Jurisdictions
Enduring POAs (EPOAs) that have been made in some jurisdictions outside of BC, including other Canadian provinces and territories, or some other countries (e.g. United States, United Kingdom, Australia and New Zealand) may be recognized as legally valid in BC. These provisions are set out in s 38 of the PAA, and subject to the Power of Attorney Regulation, BC Reg 111/2011 [PAR].
Section 4(3) of the PAR requires that the EPOA from another jurisdiction be accompanied by a certificate, from a solicitor who is permitted to practice in the jurisdiction where the EPOA was made. The certificate must indicate that the EPOA meets the requirements set out in s 2(a) to (c) of the PAR.
According to s 4(2)(a) to (c) of the PAR, an EPOA from outside BC will be deemed a valid EPOA in BC where it:
• Grants authority to an attorney that comes into effect or continues to have effect while an adult is incapable of making decisions about their own affairs
• Was made by a person who was, at the time of its making, residing elsewhere in Canada or in the United States, the United Kingdom, Australia or New Zealand
• Is in accordance with the laws and continues to have legal effect in the jurisdiction in which it was made
Section 4(4) states that the EPOA is limited by the PAA and the jurisdiction in which the deemed enduring power of attorney was made. Section 4(4) also requires that an attorney and the adult must both be at least 19 years of age before the attorney can exercise any powers or perform any duties.
4. Acting as an Attorney
Below is a description of the various duties and powers held by an attorney. In most POAs, the attorney(s) will immediately be able to act on behalf of the adult. However, in some types of POAs (e.g. a Springing or Limited), the terms of the POA will specify a ‘triggering event’ or date when an attorney has the authority to act on the adult’s behalf. Regardless of when an attorney is permitted to act, the following duties and powers apply.
The primary responsibility of an attorney is to act in accordance with the adult’s instructions, wishes, beliefs and values. The PAA explicitly sets out a number of statutory duties and powers. According to s 19(1) of the PAA, an attorney must:
• Act honestly and in good faith
• Exercise the care, diligence and skill of a reasonably prudent person
• Act within the authority given in the POA
• Keep prescribed records and produce these records for inspection and copying upon request
An attorney must act in the adult’s best interest, taking into account the adult’s current wishes, known beliefs and values and explicit directions in the POA (PAA s 19(2)). Where reasonable, an attorney must give priority to meeting the personal care and health care needs of the adult, foster the independence of the adult, and encourage the adult’s involvement in any decision-making (PAA s 19(3)).
Concerning the adult’s personal property and real property, an attorney must keep the adult’s property separate from their own property (PAA s 19(4)). If the property is jointly owned by the adult and the attorney as joint tenants, or has been substituted for, or derived from, property owned as joint tenants, an attorney must also:
• Only invest the adult’s property in accordance with the Trustee Act, RSBC 1996, c 464 [TA]
• Not dispose of property that is subject to a specific testamentary gift in an adult’s will
• Keep the adult’s personal effects at the disposal of the adult
If an EPOA explicitly says that an attorney will be exempt from these provisions, then the attorney is not legally obligated to fulfill these duties.
An adult may grant general or specific powers to an attorney in a POA. An attorney may also be permitted to exercise statutory powers to act on behalf of the adult. According to s 20 of the PAA, an attorney named has the statutory power to:
• Make a gift or loan, or charitable gift, if the POA permits or certain conditions set out in the PAA are met (see below)
• Receive a gift or loan, if the POA permits
• Retain the services of a qualified person to assist the attorney
• Change or make a beneficiary designation, in limited circumstances (see below)
The scope of an attorney’s powers can be limited or expanded in the express wording of a POA. An attorney is exercising authority improperly if:
• The attorney acts when the authority of the attorney is suspended or has ended
• Or the EPOA is not in effect, is suspended, terminated or invalid
c) Gifts, Loans and Charitable Donations
An attorney may make a gift or loan, or a charitable gift from the adult’s property if the EPOA permits the attorney to do so, or if (PAA s 20):
• The adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependents, and to satisfy other legal obligations
• The adult, when capable, made gifts or loans, or charitable gifts, of that nature; and the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value (set out in s 3 of the PAR)
According to s 20(2) of the PAA, an attorney may receive a gift or loan, if the EPOA permits.
d) Creating a Will and Designating Beneficiaries
Attorneys are not allowed to make a will on behalf of an adult. According to s 21 of the PAA, any will that is made or changed by the attorney on behalf of an adult is not legally valid. Further, if the adult has given instructions prohibiting delivery of the will to the attorney(s), then a person must not provide the will to the attorney(s).
An attorney is also not allowed to dispose of property that is designated as a testamentary gift in the adult’s will. Section 19(3)(d) of the PAA provides an exception to this only where the disposition is necessary to comply with the attorney’s duties. According to s 20(5), an attorney is allowed to change a beneficiary designation, in an instrument other than a will, in very limited circumstances set out in s 20(5)(b) of the PAA, including:
• A change to a beneficiary designation if the court authorizes the change
• The creation of a new beneficiary designation if the designation is made in
o An instrument that is renewing, replacing or converting a similar instrument made by the capable adult, and the designated beneficiary remains the same
o A new instrument that is not renewing, replacing or converting a similar instrument made by the capable adult, and the newly designated beneficiary is the adult’s estate
Where there exists a POA, an attorney may execute a deed under the seal of the attorney on behalf of the adult (whether an individual or a corporation). According to s 7 of the PAA, as long as it is within the scope of the attorney’s authority, such a deed is binding on the adult and has the same effect as if it were under the seal of the adult.
f) Delegating and Retaining Services
An attorney is not allowed to delegate their authority to another person. According to s 23 of the PAA, an attorney must not delegate powers and authorities to others, unless expressly empowered to do so in the POA. An attorney may delegate financial decisions concerning investment matters to a qualified investment specialist (e. g. mutual fund manager) in accordance with the PGTA or the TA, s 15.5.
An attorney is permitted to retain services. According to s 20(4) of the PAA, an attorney may retain the services of a qualified person to assist the attorney in doing anything the adult has authorized.
An attorney who acts in the course of their legal duties is not liable for any loss or damage to the adult’s financial affairs, if the attorney complies with the following (PAA s 22):
• The statutory duties of the attorney as set out in s 19 of the PAA
• Any directions given by the court under s 36(1)(a) of the PAA
• Any other duty that may be imposed by law
To protect innocent persons from liability arising from transactions made after the POA relationship has been terminated, BC’s PAA modifies the common law regarding the effects of termination. If the attorney or a third party has acted in good faith, the PAA shifts the loss from the attorney or third parties to the adult.
Section 3 of the PAA protects the attorney from liability for acts done in good faith and in ignorance of the termination of their authority. Section 4 protects third parties who deal in good faith with the attorney, where the third party and attorney are unaware of the termination.
NOTE: Section 57 of the LTA provides that the principal may file the termination of the agency in the Land Title Office. Filing the notice protects the principal from registration of ‘instruments’ (as defined in the LTA) executed by the attorney after the termination of their authority, even though the attorney and a third party may have been ignorant of the termination.
h) Records and Accounts
The adult’s account must be kept up to date (PAR s 2). The adult’s assets and accounts must also be kept separate from those of the attorney and any third parties (PAA s 19(4)). Per s 2 of the PAR, all assets belonging to the adult held by the attorney, and all books, documents, and account records entrusted to the attorney must be available for production to the capable adult at a reasonable time (usually during annual reviews).
i) Expenses and Remuneration
Payment to an individual (as opposed to the PGT) for service as an attorney under a POA is less common. However, s 24 of the PAA allows for an attorney to be compensated where authorized in an EPOA, provided that the rate or amount is set out in the EPOA. An attorney may also be reimbursed for reasonable expenses properly incurred in acting as the attorney.
5. Changing, Revoking, or Ending a POA
A POA will be suspended or end in the following circumstances (see s 29(2) of the PAA):
• Death of the adult or the attorney
• Bankruptcy of the adult
• Court appointment of a committee
• Revocation by the adult, who is still capable
• Resignation of the attorney(s)
• If the attorney is the adult’s spouse and their marriage (or marriage-like relationship) ends
• If the attorney is a corporation and that corporation dissolves
• If the attorney is convicted of a prescribed offence, or an offence where the adult is the victim
• Per s 19.1 of the PPA, a POA is suspended if the PGT becomes the statutory property guardian
Adults who are making a POA should be informed of the procedure for ending (revoking) or changing the POA. Likewise, adults should also know how an attorney may resign. In many situations, adults are unaware of their right to end a POA. As long as an adult has capacity they can revoke a POA. Details of how this is done appear below.
a) Revocation by an Adult
An adult who has capacity can change, revoke or end a POA at any time. A POA must be revoked in writing. This is called a ‘Notice of Revocation’. Telling someone that the POA is no longer in effect is not enough. Each attorney must be given a signed Notice of Revocation (PAA s 28(2)), and the revocation will not be effective until such notice has been given (PAA s 28(4)).
Although the PAA does not set out how a Notice of Revocation is to be delivered to the attorney(s), it is suggested that the adult deliver it by one of the following methods:
• By registered mail to the person’s last known address
• By leaving it:
o With the person
o At the person’s address
o With an adult who appears to reside with the person
o If the person operates a business, at the business, with an employee of the person
o By transmitting it by fax to the person with the number they provided for notification purposes
An adult should check if their POA lists other requirements or steps related to revoking in addition to the requirements from the legislation.
In addition to informing the attorney(s) in writing of the revocation, a capable adult who wishes to revoke an existing POA should:
• Request that the original POA be returned, if it has been given to someone
• Contact all businesses, institutions, and individuals to whom the existence of the POA was known, and notify them in writing that the POA has been revoked, effective immediately, requesting that they destroy all copies of the document which they possess;
• Register the revocation at the Land Title Office (only applies where the POA deals with land transactions)
• Inform Nidus, if the POA was registered with Nidus
b) Resignation of the Attorney(s)
An attorney can also formally resign at any time. An attorney must give written notice to the adult and any other attorney(s). The resignation of an attorney is effective when written notice is given, or on a later date specified in the notice.
An attorney who loses the capacity to fulfill legal duties should resign. Likewise, if an attorney is unable or unwilling to act on behalf of the adult, according to the adult’s instructions, wishes and values, then the attorney should resign.
As of September 1, 2011, s 17(1) of the PAA outlines that an attorney who does not sign a POA is not obligated or authorized to act as an attorney. It is possible to refuse becoming an attorney by simply choosing not to sign the POA. Section 17(4) also states that an attorney who does not sign is not required to provide any notice of any kind but ethically the attorney should let the adult know. If a person does sign the POA and wishes to resign from acting as attorney, then written notice must be provided to the adult, any other attorneys and, if the adult is incapable, a spouse, near relative or, if known to the attorney, close friend of the adult. If an adult who has capacity does not want the attorney to act, then the adult can revoke or change the POA. If an adult no longer has capacity and others are concerned about the conduct of an attorney, then you may wish to contact the PGT.
c) Duties after Termination
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 three 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.
6. Note on POAs For LSLAP Students
When a client approaches LSLAP for assistance with creating a POA, the following a series of questions should be asked to ascertain the kind of POA that would best suit the needs of the client without putting the person at risk of being taken advantage of:
1. Is the client (mentally) capable, in the view of the clinician, of granting a POA? The presumption is that all adults are capable. The general test is the ability to understand and appreciate the meaning of what they are trying to do in each particular case. Warning signs of temporary or ongoing incapacity can include the following (bear in mind the list below is not comprehensive and the indicators below do not necessarily indicate incapacity):
• Sudden confusion, short term memory problems, disorientation
• Signs of depression
• Appears worried, distressed, overwhelmed
• Signs of substance abuse
• Inability to answer open-ended questions
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
2. Why does the client want a POA?
3. For what purpose does the client require someone else to manage their financial affairs?
4. Does the client need to authorize broad powers, or can powers be narrowly defined and still meet the needs of the client?
5. What tasks does the attorney need to be authorized to do to meet the client’s needs?
6. When does the POA need to start?
7. Is it appropriate for the POA to have a built-in expiration date?
8. Has the client thought about who they wish to appoint as attorney(s)?
It may be helpful for students to provide information or guidance to clients on who the client should appoint as attorney, to reduce the risk of financial abuse, based on the following considerations:
• Appoint someone who will respect the client’s unique values and interests
• Appoint someone who is familiar with the duties and limitations of the role of attorney, or who will take the time and initiative to become educated about them
• Consider who is best placed to carry out the responsibility of handling the client’s financial matters: Does the person live nearby? Is the person easy to communicate with? Does the person like to deal with finance and money, or have some training or education in this regard?
• A spouse is not always the best choice – a partner could be in a situation of crisis when the older adult becomes incapable and the client should consider whether it is best for the partner to take on the additional responsibility at such a difficult time.
• Appointing more than one attorney could create practical problems. For example, appointing all of the client’s children can create a situation of conflict where it may be challenging for the children to come to an agreement. Having two attorneys under a joint power of attorney can also make it harder to make decisions quickly as consultation and discussion will be required to make any decision. Nonetheless, multiple attorneys can be appropriate in some contexts.
Students should confer with their Supervising Lawyer if there is any doubt that the client understands and appreciates the POA. Also note that an adult should not be required to have a POA as a condition of receiving any good or services, such as residence in an assisted living or community care facility.
a) Misue and Abuse of a POA
The misuse or abuse of a POA is a criminal act and can be prosecuted under s 331 (theft by person holding Power of Attorney), s 332 (misappropriation of money held under direction), s 215 (failure to provide necessaries of life), or s 380 (fraud) of the Criminal Code.
If a student or client has concerns that a person may be abused or neglected, or is at risk of being abused or neglected, then in most instances the student should discuss these concerns with the client and provide them with access to appropriate support services (e.g., the Seniors Abuse & Information Line at 604-437-1940 or 1-866-437-1940).
If a crime is suspected, consult with the Supervising Lawyer about how and whether to make a report to the appropriate authority. Students need to remember their legal responsibility to maintain professional conduct and client confidentiality. If there is concern that the adult is not capable, it may also be appropriate to refer the concern to the PGT. For example, s 17 of the PGTA allows the PGT to investigate potential abuse of POA relationships. Similar authority for the PGT to investigate abuse and neglect are provided by s 34 to 36 of the PAA.
Power of Attorney abuse is a constant concern and unfortunately a frequent occurrence. The abuse may manifest in pressure to grant a POA or misuse of funds or property under a POA. Try to meet with the client alone, or at least without the potential attorney in the room, to be certain that the client truly wishes to create a POA and grant powers to the potential attorney in question. Make sure to inquire about the relationship between the client and the proposed attorney, and be on alert for possible undue influence or fraud. Refer to BCLI Guide on Undue Influence, above, for a full checklist of considerations and what to watch for. For more information about abuse and neglect of older adults, you can also consult the following resources:
• BC Centre for Elder Advocacy and Support: www.bcceas.ca
• Canadian Centre for Elder Law: www.bcli.org/ccel
• Public Guardian & Trustee: www.trustee.bc.ca
• Vancouver Coastal Health: Resource: www.vchreact.ca
• Advocacy Centre for the Elderly website: www.acelaw.ca
NOTE: It is possible, and even common, for an adult to appoint an attorney under the PAA (to make financial decisions) and appoint a different person as a representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as attorney.
B. Representation Agreements
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.
RAs are an instrument by which an individual can proactively plan for the possibility of future incapacity, by appointing another person to make decisions on their behalf. RAs are the primary method by which adults in BC can plan for future health care substitute decision making. An RA can also be used to give legal authority to a person’s supportive decision-maker—a person appointed under the RA to help the adult make their decisions, not necessarily to make their decisions for them. As the capacity test for creating an RA is lower than the test for creating a POA, a person with limited cognitive capacity may have the capacity to create an RA.
In the BC health care system, health care providers must speak directly to an individual to inform them about health care choices and consequences. An adult with capacity has the right to give or refuse consent for treatments. Due to illness, accident or disability, an individual needing health care may not be capable of understanding advice, making informed decisions, or providing meaningful consent to a proposed treatment. If the adult has previously enacted an RA, then the representative(s) will be able to give or refuse consent on behalf of the capable adult, acting as appointed substitute decision-maker(s) to make decisions according to the incapable adult’s personal wishes, values and beliefs.
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.
Also note that, according to s 3.1 of the amended RAA, an adult must not be required to have an RA as a condition of receiving any good or service.
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.
1. Types of Representation Agreements
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.
a) Section 7 Representation Agreements
Section 7 RAs designate a substitute or supportive decision-maker to make personal care decisions, major and minor health care decisions for the adult, and routine legal and financial decisions.
These health care decisions cover the majority of health and personal care related choices that an individual can make over the course of their life. The list of decisions includes decisions regarding:
• Personal care, including where and with whom the adult is to reside
• Consent to treatment
• Minor or major surgery
• Diagnostics and tests
• Palliative care
• Living arrangements of the adult
A s 7 RA may also allow the representative to take care of routine financial affairs of the adult. ‘Routine management of financial affairs’ is defined in the RA Act Regulation s 2(1) as:
(a) Paying the adult's bills;
(b) Receiving the adult's pension, income and other money;
(c) Depositing the adult's pension, income and other money in the adult's accounts;
(d) Opening accounts in the adult's name at financial institutions;
(e) Withdrawing money from, transferring money between or closing the adult's accounts;
(f) Receiving and confirming statements of account, passbooks or notices from a financial institution for the purpose of reconciling the adult's accounts;
(g) Signing, endorsing, stopping payment on, negotiating, cashing or otherwise dealing with cheques, bank drafts and other negotiable instruments on the adult's behalf;
(h) Renewing or refinancing, on the adult's behalf, with the same or another lender, a loan, including a mortgage, if
(i) The principal does not exceed the amount outstanding on the loan at the time of the renewal or refinancing, and
(ii) In the case of a mortgage, no new registration is made in the land title office respecting the renewal or refinancing;
(i) Making payment on the adult's behalf on a loan, including a mortgage, that
(i) Exists at the time the representation agreement comes into effect, or (ii) Is a renewal or refinancing under paragraph (h) of a loan referred to in that paragraph;
(j) Taking steps under the Land Tax Deferment Act, RSBC 1996, c 249 for deferral of property taxes on the adult's home;
(k) Taking steps to obtain benefits or entitlements for the adult, including financial benefits or entitlements;
(l) Purchasing, renewing or cancelling household, motor vehicle or other insurance on the adult's behalf, other than purchasing a new life insurance policy on the adult's life;
(m) Purchasing goods and services for the adult that are consistent with the adult's means and lifestyle;
(n) Obtaining accommodation for the adult other than by the purchase of real property;
(o) Selling any of the adult's personal or household effects, including a motor vehicle;
(p) Establishing an RRSP for the adult;
(q) Making contributions to the adult's RRSP and RPP;
(r) Converting the adult's RRSP to an RRIF or annuity and creating a beneficiary designation in respect of the RRIF or annuity that is consistent with the beneficiary designation made by the adult in respect of that RRSP;
(s) Making, in the manner provided in the Trustee Act, any investments that a trustee is authorized to make under that Act;
(t) Disposing of the adult's investments;
(u) Exercising any voting rights, share options or other rights or options relating to shares held by the adult;
(v) Making donations on the adult's behalf to registered charities, but only if
(i) This is consistent with the adult's financial means at the time of the donation and with the adult's past practices, and
(ii) The total amount donated in any year does not exceed 3% of the adult's taxable income for that year;
(w) In relation to income tax,
(i) Completing and submitting the adult's returns,
(ii) Dealing, on the adult's behalf, with assessments, reassessments, additional assessments and all related matters, and
(iii) Subject to the Income Tax Act, 1996 RSBC, c 215 and the Income Tax Act (Canada), 1985 RSC, c 1 signing, on the adult's behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii);
(x) Safekeeping the adult's documents and property; (y) Leasing a safety deposit box for the adult, entering the adult's safety deposit box, removing its contents and surrendering the box;
(z) Redirecting the adult's mail;
(aa) Doing anything that is:
(i) consequential or incidental to performing an activity described in paragraphs (a) to (aa), and
(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.
For greater clarity, the Regulations state that the routine management of the adult’s financial affairs does NOT include the following (s 2(2) RAR):
(a) Using or renewing the adult's credit card or line of credit or obtaining a credit card or line of credit for the adult;
(b) Subject to subsection (1) (h), instituting on the adult's behalf a new loan, including a mortgage;
(c) Purchasing or disposing of real property on the adult's behalf;
(d) On the adult's behalf, guaranteeing a loan, posting security or indemnifying a third party;
(e) Lending the adult's personal property or, subject to subsection (1) (v), disposing of it by gift;
(f) On the adult's behalf, revoking or amending a beneficiary designation or, subject to subsection (1) (r), creating a new beneficiary designation; and
(g) Acting, on the adult's behalf, as director or officer of a company.
The creation of a s 7 RA does not require the services of a lawyer.
A s 7 RA does not permit a representative to make health care and personal decisions that involve decisions to refuse health care necessary to preserve life, or to physically restrain, move or manage the adult against the adult’s objections.
If there is a conflict between an enduring POA and a s 7 RA which includes routine management of financial affairs, the enduring POA will take priority.
b) Section 9 Representation Agreements
Section 9 RAs designate a substitute decision-maker for significant and sometimes very personal or more controversial health or personal care decisions. Under this section, representatives can do anything that the representative considers necessary in relation to the personal care or the health care of the adult, including:
• Where the adult is to live and with whom, including whether the adult should live in a care facility
• Whether the adult should work and, if so, the type of work, the employer, and any related matters
• Whether the adult should participate in any educational, social, vocational or other activity
• Whether the adult should have contact or associate with another person
• Whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity
• Day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult
• Giving or refusing consent to health care for the adult, including giving or refusing consent in the circumstances specified in the RA to specific kinds of health care, even where the adult refuses to give consent at the time the health care is provided
• Physically restraining, moving and managing the adult and authorizing another person to do these things, if necessary to provide personal care or health care to the adult
A representative under s 9 RA must not do the following, unless expressly provided for in the RA:
• Give or refuse treatment in accordance with s 34(2)(f) of the HCCFA
• Make arrangements for the temporary care and education of the adult’s minor children, or any other person who is cared for or supported by the adult
• Interfere with the adult’s religious practices
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)).
The creation of a s 9 RA no longer requires the services of a lawyer. However, careful attention should be paid to the requirements and powers given under s 7 and s 9 RAs to determine which one best suits the needs of the adult.
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).
2. Who Can Be a Representative
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:
• providing personal care or health care services to the adult for compensation, unless the caregiver is a child, parent, or spouse of the adult, or;
• working as an employee of a facility in which the adult resides and through which the adult receives personal care or health care services.
The Public Guardian and Trustee can also be named as a representative.
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:
a) over different areas of authority; and/or
b) over the same area of authority, in which case, the representatives must be unanimous in exercising their authority.
RAA s 5(4) requires that all representatives for RAs made under s 7 complete a certificate in the prescribed form.
3. Acting As a Representative
The law defines several duties that representatives owe to the adult. There are several statutory parameters with respect to what a representative must do (e.g. consult with the adult) and what a representative must not do (e.g. make a will). Below is an outline of the legal ‘do’s and don’ts’ that a representative must follow.
Under s 16(1) o the RAA, a representative must:
• Act honestly and in good faith
• Exercise the care, diligence and skill of a reasonably prudent person
• Act within the authority given in the RA
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)).
Adults should communicate instructions and wishes to the named representative(s). This should be done in writing (including by e-mail or recorded transmission), but can also be done orally, for as long as the adult has capacity. It is best that the representative(s) know exactly what the adult would want.
b) Delegation of Authority
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.
c) Accounts and Records
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.
d) Access to Information
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).
e) Creating a Will
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).
f) Remuneration and Expenses
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)).
A representative, alternative representative, or monitor is entitled to reimbursement for reasonable expenses incurred in the course of performing the duties or exercising the powers. Accounts and records of the reasonable expenses paid must be kept.
The role of the monitor is to ensure that the representative appointed under an RA is carrying out their duties. The monitor acts as an extra safeguard and support to ensure that the RA is working for the adult.
a) Appointment and Resignation
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.
If an adult has a s 7 RA which authorizes their representative to make routine financial decisions, the adult MUST appoint a monitor to oversee their chosen representative unless:
a) The representative is the adult’s spouse, the PGT, a trust company or a credit union, or
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.
b) Duties and Powers
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)
• Act honestly and in good faith and use the care, attention and skill of a responsible person
However, a monitor cannot make decisions on behalf of the adult.
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)).
c) Payment and Expenses
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)).
d) Replacement Monitor
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)).
5. Creating a Representation Agreement
The adult who executes the Representation Agreement must have the mental capacity to do so, as set out in the RAA.
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)):
• One of the representatives
• An alternate representative
• A spouse, child, or parent of anyone named in the RA as a representative or alternate representative
• An employee or agent of a representative or alternate representative
• Anyone under 19 years of age
• Anyone who does not understand the type of communication used by the adult who wishes to be represented
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).
Although there is no legal requirement to register an RA, registration may be done through the Nidus e-Registry. When a person registers, they can decide which organizations can access their record. For more information contact Nidus Personal Planning Resource Centre.
For more information on preparing documents, consult organisations such as Nidus Personal Planning Resource Centre and Registry.
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.
6. Changing, Revoking or Ending a Representation Agreement
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))
An RA ends where:
• The adult who made the agreement revokes the RA
• The adult who made the agreement or the representative dies
• The court issues an order that cancels the RA
• The representative becomes incapable or resigns
• As provided for under s 19 of the PPA
Where the adult who made the agreement and the representatives are spouses, then an RA will normally end when the marriage or marriage-like relationship ends. However, if the RA explicitly says that the RA will continue to be in effect after the end of the marriage or marriage-like relationship, then the RA will continue.
7. Other Jurisdictions
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):
• Perform the function of an RA
• Be made in a jurisdiction outside BC
• Comply with any prescribed requirements
The certificate in the prescribed form must be completed by an extra-jurisdictional solicitor. Please consult the Nidus Personal Planning Resource Centre for more information about prescribed forms.
These recognition rules only apply to s 9 RAs for personal and health care decisions (see s 9 of the Representation Agreement Regulations).
8. Note on RAs for LSLAP Students
When a client approaches LSLAP for assistance with creating an RA, students should ask the following questions in order to ascertain the kind of RA that the client needs and whether LSLAP can assist them:
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?
3. Who is the client considering to be their representative? 4. What is the relationship between the client and their chosen representative?
5. Are there signs of abuse, neglect or self-neglect? Does the adult have access to community resources? Is there a need to involve a Designated Agency?
6. Which specific authorities would the client like their representative to have?
7. Have they spoken to their chosen representative to see if they are willing to serve?
8. What is the status of the client’s will? Explain that wills do not provide direction or authority if testators become incapable, and POAs/RAs do not function like wills.
9. Would the client like to appoint a substitute or supportive decision-maker?
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.
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 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: http://canliiconnects.org/en/summaries/33208.
C. Advance Directives
An Advance Directive (AD) is a written document made by a capable adult that gives or refuses consent to health care, in the event that they become incapable of giving health care instructions. The legal provisions for ADs are set out in Part 2.1 of the HCCFA. A valid AD executed in accordance with the requirements set out in the HCCFA is legally binding upon health care providers and substitute decision-makers.
1. Significance of an Advance Directive
The law provides detailed guidelines for how a health care provider is to respond when an AD is in place. The new legislation recognizes a written AD which, when made in accordance with the HCCFA, provides a valid consent on the basis of which health care provider can provide treatment, without involving any substitute decision-maker. In order to be valid, the new AD must be executed in accordance with the legislation and contain two ‘informed consumer’ acknowledgements in writing to the effect that:
1. The refusal of treatment is binding; and
2. There is no substitute decision-maker.
(See below regarding circumstances where a substitute decision-maker, such as a committee or representative, does exist.)
According to s 19.7 of the HCCFA, health care providers are to rely on the instructions given in a valid AD when:
• The health care provider is of the opinion that an adult needs care
• The adult is incapable of giving or refusing consent to the health care
• 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
• The health care provider is aware that the adult has a valid, binding AD that is relevant to the proposed health care
The health care provider is to make a reasonable effort in the circumstances to determine whether the adult has an AD, representative or guardian. If the adult has both an RA and an AD, then the health care provider must seek consent from the representative. According to s 19.3 of the HCCFA, instructions in the AD will be treated as wishes expressed while capable, which are binding on a representative. However, the health care professional can act on the instructions in an AD without the consent of a representative if the AD expressly states that: ‘a health care provider may act in accordance with the health care instructions set out in the advance directive without the consent of the adult’s representative.’
The central purpose of an AD is to give or refuse consent to health care. If the adult has given consent in a valid AD, then the health care provider should provide that health care, and need not obtain the consent of a substitute decision-maker. Similarly, if the adult has refused consent in a valid AD, then the health care provider must not provide that health care, and need not obtain the consent of a substitute decision-maker.
It remains necessary for a health care provider to obtain consent from a substitute decision-maker in the following situations:
• If there is a committee of person in existence or a representative under an RA
• If there is a verbal instruction or wish
• If there is a written instruction but it is not in a properly completed AD
• If there is a written instruction from another jurisdiction
• If there is a wish in an AD that is not properly signed and witnessed
• If there is an AD that does not contain the mandatory informed consumer clause
In addition, an AD does not apply in certain circumstances. According to s 19.8 of the HCCFA, a health care provider is not to rely on an AD where:
• Instructions in the AD do not address the health care decision to be made
• Instructions in the AD are so unclear that it cannot be determined whether the adult has given or refused consent to health care
• 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
• 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
If a health care provider is not aware that the adult has an AD that refuses consent to specific health care and provides that health care to the adult, but subsequently becomes aware of an AD in which the adult has refused consent, then the health care provider must withdraw the health care.
It is possible for an adult who does not complete an AD to still receive health care. Completion of an AD must not be mandatory prior to providing any good or service (i.e. health care). In other words, an adult has the right to not complete an AD. For example, where an adult is being admitted to a care facility and instructed to ‘fill out these forms’ prior to treatment, the adult does not have to fill out the AD.
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.
2. Making an Advance Directive
An AD must include or address any prescribed matter and indicate that the adult knows the following:
• A health care provider may not provide any health care for which the adult refuses consent in the AD
• A person may not be chosen to make decisions on behalf of the adult in respect of any health care for which the adult has given or refused consent
For more information on preparing documents, consult organisations such as Nidus Personal Planning Resource Centre and Registry.
3. Changing, Revoking, or Ending an Advance Directive
An adult with capacity may revoke or change an AD at any time. According to s 19.6 of the HCCFA, an adult who has made an AD may change or revoke the AD as long as the adult is capable of understanding the nature and consequences of the change or revocation.
A change must be made in writing. The amended AD must also be signed and witnessed by two capable adults (unless one witness is a lawyer or notary).
A revocation may be made by expressing an intention to revoke an AD and then making another document, including a subsequent AD. Alternatively, an AD may be revoked by destroying the AD with the intention to revoke it.
4. Examples of Advance Directive Provisions
Examples of directives made in an AD might include consenting or refusing consent to the following:
• CPR (if cardiac or respiratory arrest occurs)
• Artificial nutrition through intravenous or tube feedings
• Prolonged maintenance on a respirator (if unable to breathe adequately alone)
• Blood cultures, spinal fluid evaluations, and other diagnostic tests
• Blood transfusions
Note that it is not likely that simple refusals like ‘I refuse CPR’ are going to be sufficient for health care providers. It is important to describe the circumstances to the best degree possible under which consent will be refused, such as only refusing CPR if cardiac arrest occurs, rather than stating only to refuse CPR. The adult may use the phrase ‘under any circumstances’ to make it clear to health care professionals that consent is not given in any case.
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) Do Not Resuscitate Orders ('DNR Orders')
Do Not Resuscitate Orders are a common form of AD which instruct medical professionals not to perform CPR. This means that doctors, nurses, emergency medical personnel, or other healthcare providers will not attempt emergency CPR if a person’s breathing or heartbeat stops. DNR Orders may appear in a patient’s advance directive document.
However, DNR orders can also be made in a hospital or personal care home, and noted on that person’s chart, or be made by persons at home. Hospital DNR Orders tell the medical staff not to revive the patient if cardiac arrest occurs. If a patient is in a personal care home or at home, a DNR Order tells the staff and/or medical emergency personnel not to perform emergency resuscitation and not to transfer the patient to a hospital for CPR.
Each hospital will have its own policies regarding the implementation of DNR Orders, but such policies are guided by the Joint Statement on Resuscitative Interventions (1995) which was approved by the Canadian Healthcare Association, the Canadian Medical Association, the Canadian Nurses Association and the Catholic Health Association of Canada and was developed in cooperation with the Canadian Bar Association. The Joint Statement can be located at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1488016/
Guiding Principles of the Joint Statement include:
• 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.
• 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).
5. Note on ADs for LSLAP Students
When a client approaches LSLAP for assistance with creating an AD, students should ask the following series of questions in order to ascertain whether LSLAP can assist them:
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?
It is common for practitioners to refer the client to their doctor for discussion of the types of health care that the client may want to give or refuse consent to, and to obtain the appropriate wording of an AD from that doctor. Students should discuss this option with the client and consider referring them to their doctor in the first instance.
Students should refer to their Supervising Lawyer if there is any doubt that the client understands and appreciates the AD. Also, note that an adult is not required to have an AD as a condition of receiving health care treatment.
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.
D. Temporary Substitute Decision-Makers (TSDM)
The statutory framework of the HCCFA allows for the appointment of a temporary substitute decision-maker (TSDM) in some situations where there is no representative previously appointed and an adult no longer has capacity. For instance, in BC, a health care provider is legally required to get consent prior to treating a patient. A capable adult can give or refuse consent to health care treatment expressly or by inference either orally or in writing. However, when an adult is not capable of making this election (i.e. due to illness, loss of consciousness, or injury), health care providers are required to get consent from a substitute decision-maker in order to commence treatment. There are, however, exceptions for this requirement when urgent or emergency health care is required (HCCFA s 12). Planning tools, such as RAs and ADs may be helpful in obtaining this consent. If the patient has an RA in place, then instructions for consent will need to be obtained from the representative (HCCFA s19). If the patient has an AD in place, then the instructions for consent will need to be obtained from the representative (HCCFA s19).
However, if there is no representative and no committee in place, then the health care provider will need to find a TSDM to give or refuse consent (HCCFA s19.8). The HCCFA outlines the specific procedures that health care providers must follow to obtain legally valid consent. Section 16(1) of the HCCFA sets out the ‘default list,’ which health care providers must follow (in hierarchical order) to determine the appropriate person to act as a TSDM. To obtain substitute consent to provide major or minor health care to an adult, a health care provider must choose the first, in the listed order, of the following who is available and qualifies under s 16 of the HCCFA:
• The adult's spouse or partner
• The adult's child who is over 19
• The adult's parent
• The adult's sibling
• The adult’s grandparent
• The adult’s grandchild
• Other relatives by birth or adoption (but not in-laws or step-children)
• Close friend
• Persons immediately related by marriage (including in-laws and step-children)
To qualify to give, refuse or revoke substitute consent to health care for an adult, a person must under s 16(2) of the HCCFA:
• Be at least 19 years of age
• Have been in contact with the adult during the preceding 12 months
• Have no disputes with the adult
• Be capable of giving, refusing or revoking substitute consent
• Be willing to comply with the duties in section 19
If no one listed in subsection (1) is available or qualifies under subsection (2), or if there is a dispute about who is to be chosen, the health care provider must choose a person authorized by the Public Guardian and Trustee (which can include a person employed in the Office of the Public Guardian and Trustee).
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.
E. Admission to Care Facilities
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.
If an adult does not have a committee of person, a substitute will be chosen from the following list, in this order, to give or refuse consent:
• The adult’s representative, if they have authority to give consent to admission
• The adult’s spouse
• The adult’s child
• The adult’s parent
• The adult’s sibling
• The adult’s grandparent
• Anybody related by birth
• A close friend
• A person immediately related to the family by marriage
If no person meets these requirements, or if there is a dispute over who is chosen, the manager of the facility must notify the PGT. The PGT can authorize a person to give or refuse consent, including one of their staff.
In providing consent, the substitute decision maker must consider:
• The adult’s current wishes
• The adult’s previously expressed wishes and known beliefs and value
• Whether the adult would benefit from admission
• What other options may be available and appropriate or less restrictive to support the adult’s care
F. Limits on Substitute Decision-Makers
1. Health Care Consent Regulation
The HCCFA’s Act’s Health Care Consent Regulation outlines scenarios in which a temporary substitute decision maker cannot provide consent on behalf of someone (s 5).
Situations where the temporary substitute decision maker may not be able to provide this consent include:
• electroconvulsive therapy
• removal of tissue from a living human body for implantation in another human body or for education or research
• experimental health care, participation in a program that has not been approved by the appropriate committee
• any treatment that involves using “aversive stimuli” to cause a behavioural change
2. Medical Assistance in Dying (MAiD)
The Criminal Code of Canada was amended on June 17th, 2016, to permit the Medical Assistance in Dying (MAiD) under certain conditions. This means that a medical or nurse practitioner may, at a person’s request, administer a substance to cause their death, or prescribe a substance so that the person can self-administer a substance that causes their death.
Consent for MAiD can only be given by patients who are able to consent, and substitute decision-makers cannot give consent on a patient’s behalf. This is because the College of Physicians and Surgeons of British Columbia’s ‘Professional Standards and Guidelines’ clearly prohibits consent for MAiD to be given via an RA or AD. The ‘Professional Standards and Guidelines’ have weight in law pursuant to s 5(2) of the Medical Practitioners Regulation under the Health Professions Act.
For more information on the Standards and Guidelines of the College of Physicians, please see their document on MAiD at https://www.cpsbc.ca/files/pdf/PSG-Medical-Assistance-in-Dying.pdf.
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