Types of Substitute Decision-Making in Residential Care

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Contents

Statutory Substitutes - Temporary Substitute Decision-Making for Health Decisions[edit]

The Basics[edit]

British Columbia has a system for appointing temporary substitute decision makers for health care decisions. Unlike some jurisdictions, British Columbia does not have a statutory process that would identify a substitute to make personal care decisions on behalf of a mentally incapable adult.

An adult may become incapable of consenting to a minor or major health care decision and may not have made her or his own arrangements to appoint someone (e.g. through a representation agreement). Typically no committee of the person has been appointed either. In these circumstances, a health care provider can select a Temporary Substitute Decision Maker (TSDM) to make health decisions on behalf of the individual. The selection is based on the hierarchy set out by the statutory list under the Health Care Consent and Care Facility (Admission) Act. (1)

To qualify as a TSDM who can give, refuse or revoke substitute consent to health care for an adult, a person must:

(a) Be at least 19 years of age,
(b) Have been in contact with the adult during the preceding 12 months,
(c) Have no dispute with the adult,
(d) Be capable of giving, refusing or revoking substitute consent, and
(e) Be willing to comply with the duties. (2)

From the listed order below, the health care provider must choose the first person who is available and qualifies:

(a) The adult's spouse; (3)
(b) The adult's child;
(c) The adult's parent;
(d) The adult's brother or sister;
(d.1) the adult's grandparent;
(d.2) the adult's grandchild;
(e) Anyone else related by birth or adoption to the adult;
(f) A close friend of the adult;
(g) A person immediately related to the adult by marriage. (4)

A health care provider is not required to do more than make the effort that is reasonable in the circumstances to comply with this section. (5)

If there is no one listed who is available or qualifies, or if there is a dispute about who is to be chosen as a temporary substitute decision-maker, the health care provider must “choose” a person authorized by the Public Guardian and Trustee. (6)

The authority of a Temporary Substitute Decision-Maker[edit]

A person chosen as a TSDM has the authority to decide whether to give or refuse substitute consent to health care. (7) The TSDM is limited by the ‘temporary’ nature of their authority. A TSDM is only selected when the health care provider determines the adult is incapable and a decision needs to be made. A TSDM’s authority only lasts for that specific decision or set of decisions.

The authority of the TSDM applies to the particular health care decision at hand. While TSDMs can consent to a “plan for minor health care “(see below), they cannot give “blanket consent” for future health care. In part, this is because health care consent requires “informed consent”; the TSDM or any other substitute would not have the information on the person’s future condition and available options at that point of decision-making. Consent to a plan for minor health care by a TSDM “expires” or needs to be revisited after one year. (8)

Definition of Health Care (Health Care Consent

"Health care" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose related to health, and includes:

(a) a series or sequence of similar treatments or care administered to an adult over a period of time for a particular health problem,
(b) a plan for minor health care that
(i) is developed by one or more health care providers,
(ii) deals with one or more of the health problems that an adult has and may, in addition, deal with one or more of the health problems that an adult is likely to have in the future given the adult's current health condition, and
(iii) expires no later than 12 months from the date consent for the plan was given, and
(c) participation in a medical research program approved by an ethics committee designated by regulation.

Duties of a temporary substitute decision-maker[edit]

The TSDM does not make decisions in a vacuum. Before giving or refusing substitute consent, the TSDM must consult with the adult to the greatest extent possible, even if the person is considered “mentally incapable”. (9) This can help determine the person’s current wishes as well as revisit the person’s values, wishes and beliefs. The TSDM must comply with any instructions or wishes the adult expressed while she or he was capable. (10) TSDMs who have been authorized by the Public Guardian and Trustee must also consult with any near relative or close friend of the adult who asks to assist. (11)

If the adult's instructions or wishes are not known, the TSDM must decide to give or refuse consent in the adult's “best interests”. (12) This means the TSDM must consider:

  • the adult’s current wishes, known beliefs and values;
  • whether the adult’s condition or well-being is likely to be improved by receiving the proposed health care, or by not receiving it
  • whether the expected benefit to the adult is greater than the risk of harm; and
  • whether a less restrictive or less intrusive form of health care would be as beneficial as the proposed health care. (13)

A TSDM has the authority to refuse substitute consent to health care that would otherwise be necessary to preserve life. However, this can only occur if there is substantial agreement among the health care providers caring for the adult that (a) the decision to refuse substitute consent is medically appropriate, and (b) the person has made the decision in light of adult’s known instructions and wishes expressed while he or she was capable (or if this is unknown, based on the adult’s best interests).

The TSDM has a right to request information[edit]

In order to give an informed health care decision including a plan of care, the person chosen as a TSDM has the right to all information and documents to which the adult is entitled and that are necessary for the person to make the decision. (14)

Duty to disclose information[edit]

Health care providers or anyone else, such as administration, have an active duty to disclose any information or document that the TSDM would need to make the informed health care decision (including for a plan of care), even if those documents or information would otherwise be considered privileged and confidential.(15)

End of responsibility[edit]

The TSDM’s authority ceases if the adult becomes capable, or if the person no longer qualifies as the TSDM. (16) If the TSDM wants to be relieved of the authority to give or refuse substitute consent, the health care provider may choose another person in accordance with the statutory list to assume that authority.(17)

Protection from liability[edit]

A health care provider or the operator of a care facility is entitled to rely on the accuracy of the information given to them to establish (a) someone's eligibility to be chosen as TSDM (18)( “I am John’s son and we get along fine”) or (b) someone's authority to give, refuse or revoke consent to health care, unless it is not reasonable to rely on that information. (19)

Restrictions on authority of a TSDM[edit]

There certain types of health care decisions that a TSDM would not have the authority to make for older adults in hospital or residential care. These are set out in the Health Care Consent Regulation, and include (20):

  • Electroconvulsive therapy (unless it has been recommended in writing by the adult’s treating physician and at least one other medical practitioner who has examined the adult);
  • Any experimental health care that involves “a foreseeable risk to the adult that is not outweighed by the expected therapeutic benefit”;
  • Psychosurgery;
  • Removing tissue while alive to be implanted in another person (e.g. donating a kidney) or for medical education;
  • Participating in a health care or medical research program that has not been approved by any of the research ethics committees listed in the regulations;
  • Any treatment, procedure, or therapy that uses negative stimuli to produce a change in behaviour (i.e. exposing the person to pain, fear, sound, heat, light so they will not behave in a certain manner).

The term "experimental health care" as it is used here refers to any health care that deviates from standard professional practice, and has not been approved by a research ethics committee recognized by the regulations.

A person also cannot give or refuse consent for these types of health care in an Advance Directive (described below). They may be included in a customized Section 9 Representation Agreement.

Collection of personal information[edit]

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Health care providers are authorized to collect personal information about an adult from any person if this is necessary for the health care providers to carry out their duties or functions under the Health Care Consent and Care Facility (Admission) Act.(21) That may include for example, needed information about who might be the potential TSDMs.

Common Legal Issues around TSDMs[edit]

There are several legal issues that arise in residential care facilities related to substitute decision-makers for health, personal care or finances. Some of these, such as when the substitutes make decisions based on their own wishes or interests not the older adult’s, are described later in the chapter. The TSDM system for health care decisions, however, encounters two special legal problems in residential care.

Choosing a TSDM[edit]

There is a common misunderstanding that a TSDM can be chosen based on an adult’s known wish without any legal documentation of this choice (i.e., representation agreement).

“Jumping the queue”[edit]

As previously noted, a health care provider is not required to do more than make the effort that is reasonable in the circumstances when selecting an available, qualified person as a TSDM.(22) One issue that arises in the residential care setting from time to time is when a health care provider decides to “jump” certain people on the TSDM list or give priority to an equally or lower situated (but favoured) person. This may occur when the health care provider in residential care considers some persons in a family as easier to contact, easier to deal with, or more likely to agree with the course of action being presented (e.g., use of psychoactive medication).

“Have no dispute”[edit]

The law requires that to qualify as a TSDM, the potential candidate must have been in contact with the adult during the preceding 12 months, and “have no dispute with the adult”. People may interpret this as meaning there has been no overt conflict, as opposed to the more common fundamental differences over values and approaches to personal health decisions. It is very difficult for health care provider to know the life history within families, the nature of relationships, and whether the potential TSDM has substantially different values than the person for whom she or he would be making decisions.

Unlike some family disputes over money, health care differences tend to be less obvious to others. Significant differences in perspective may not surface until the person becomes physically, mentally or socially vulnerable, or when a health crisis develops. The situation is further complicated by the fact that the expressed wishes are open to interpretation or the person may have expressed different wishes to different people at different points in time. An ethics committee, where available, may help families and others sort out some of these matters.

Some health care providers working in residential care may acquiesce to a strong minded person becoming the older adult’s TSDM, even where other family members feel the person is imposing his or her wishes on the health care decisions to be made. These types of situations should be referred by the health care provider to the Health Care Decisions Consultant with the Public Guardian and Trustee Office for resolution.

Other Tools by Which People are Given Authority as Substitutes[edit]

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Financial Decisions[edit]

There are a number of common financial decisions that need to be made by or on behalf of residents in care facilities. These include but are not limited to:

  • contracting with the residential care facility for payment of the accommodation fees and fees for other services,
  • the management of the resident's trust account, if any, at the facility, and
  • the management of the "comfort allowance" or other pocket money. (23)

Power of Attorney[edit]

The power of attorney is a legal document which many older adults, family as well as people working in residential care facilities find confusing. This document allows an adult to appoint another person (referred to as the “attorney”) to deal with business, income and property on the person’s behalf, as well as to make financial and legal decisions. A power of attorney can be very specific or very broad.

It is very common to hear about an individual who has been given a power of attorney and who is now making a wide range of non-financial decisions on behalf of a resident. More often than not, the person does not have the legal authority to do that.

The legal requirements for a valid power of attorney, as well as the responsibilities are set out in the Power of Attorney Act. It is very important for the facility administration to know if there is a power of attorney, who has authority under it, and the scope of that authority.

The power of attorney normally ends if the adult becomes mentally incapable. If the adult wants the power of attorney to continue even if the adult becomes mentally incapable of making financial decisions, an enduring power of attorney is required.

Changes to British Columbia’s Power of Attorney Act came into effect on September 1, 2011. Enduring power of attorneys signed before then will generally still be valid. But any enduring power of attorney signed on or after September 1, 2011 must follow all the new laws.
Definition of Financial Affairs for Enduring Power of Attorney[edit]

Under the Power of Attorney Act, s. 1 "financial affairs" includes an adult's business and property, and the conduct of the adult's legal affairs.

Enduring Power of Attorney[edit]

An enduring power of attorney permits an adult to appoint another person to make financial and legal decisions for the adult, even if the adult later becomes mentally incapable of making decisions. (24)It is different from an ordinary (non-enduring) power of attorney, which ends if the person granting the power becomes mentally incapable. The laws related to the enduring power of attorney changed in 2011. There is now a specific test for mental capacity for people to execute an enduring power of attorney. (25)

To create a valid enduring power of attorney, the document must be properly signed, and must state:

  • whether the attorney (the person appointed to make decisions) can act while the adult appointing is capable or only while the adult is incapable, and
  • that the attorney’s authority continues despite the adult’s incapability.

An enduring power of attorney made after September 1, 2011 must also be signed by the Attorney. It must be signed and witnessed a second time at the point when the attorney is going to begin using the authority.(26)

Power of attorney is a shared responsibility to make financial and related legal decisions. The Power of Attorney Act specifically acknowledges that as long as the individual remains mentally capable, the individual can still make decisions even though she or he may have signed an enduring power of attorney document.(27)

There are different rules for enduring powers of attorney than for non-enduring ones when there is more than one appointed attorney. Enduring powers of attorney (as well as representation agreements, advance directives, nomination of committee and related documents) can be voluntarily registered with the NIDUS Personal Planning Registry. (28) Authorized care providers can check with NIDUS to determine if any of these documents has been registered for a particular individual.

Ending an enduring power of attorney[edit]

An enduring power of attorney can be suspended (29) or can end under a number of conditions The enduring power of attorney ends with the resident’s death. (30)

While mentally capable, a resident can also end (“revoke”) or change an enduring power of attorney that the resident has given. (31) To do this, the resident must give written notice to the attorney(s) that the authority is ending or changing. Written notice that the power of attorney is being revoked needs to be given to any financial institution or other third party (such as the care facility administration) where the attorney may have previously used the enduring power of attorney to act on the person’s behalf. The original documents and any copies should be destroyed (to prevent misuse by the terminated attorney). If people do not know the power of attorney has been terminated, and the attorney continues to act, those transactions are not necessarily invalidated. (32)

To cancel or revoke a power of attorney dealing with land, a document called a “Notice of Revocation” must be filed in the Land Title Office where the land is registered. The court can also terminate a power of attorney – this might happen if the attorney abuses their power.

The person granted the power of attorney can resign. This is done by letting the adult and any joint attorneys know in writing. (33) However, if the other adult is no longer mentally capable, the attorney must also give written notice of the resignation to the adult’s spouse, near relative or, a person known to be “close friend of the adult”.(34)“Close friend” here means an “adult who has a long-term, close personal relationship involving frequent personal contact with the adult”. (35) However, it does not include anyone who receives compensation for providing personal care or health care to the adult.

An enduring power of attorney also automatically ends if the attorney is the spouse (either married or common-law) and the marriage or marriage-like relationship ends. (36) This occurs unless the document specifically states that the power of attorney will continue to be in effect if the marriage or marriage-like relationship ends.

The Power of Attorney Act also sets out additional circumstances under which it automatically ends, including:

  • if the attorney becomes bankrupt
  • if the attorney is convicted of an offence described in the Power of Attorney Act or an offence where the grantor was the victim. (37)
When there are problems[edit]

Anyone can make a report to the Public Guardian and Trustee if the person:

  • believes that the adult is (or was at the time) incapable of making an enduring power of attorney, or changing or revoking it. (38)
  • is concerned there has been fraud, abuse or neglect by the person granted the enduring power of attorney, (39)
  • believes undue pressure has been used to induce an adult to make, change or revoke an enduring power of attorney. (40)

People can also report the attorney to the Public Guardian and Trustee if they are concerned that the attorney is incapable of acting as an attorney, or failing to comply with an enduring power of attorney or with their duties as an attorney.(41)

The Public Guardian and Trustee is required to promptly follow up on the report, and may investigate the validity of the report.(42) Depending on the investigation outcome, the Public Guardian and Trustee has a number of options. These include to

  • take no action;
  • apply to the court for an order to confirm;
  • revoke or change the power of attorney;
  • advise the person who made the report to apply to the court for an order;
  • make a report to a designated agency under section 46 of the Adult Guardianship Act; take steps under the Patients Property Act (43) to become a committee; or
  • take any action that the Public Guardian and Trustee considers necessary.

Springing Power of Attorney[edit]

A "springing power of attorney" also grants authority over financial and legal matters. It is distinctive because it is signed by the person granting the power but does not take effect immediately. Instead it only comes into effect once a specific event set out in the document and predetermined by the person who granted the power of attorney has occurred. The power to act on the person’s behalf has been created but it lies dormant. It is later brought to life (or springs into effect) when the specified event happens. For example, the person might specify the authority does not begin until a doctor has issued a letter issued that the person granting the power of attorney has lost capacity to make financial decisions.

The BC Court of Appeal case Goodrich v. British Columbia (Registrar of Land Titles), (44)first recognized the springing power of attorney. In 2011, a number of laws affecting adult guardianship and planning statutes were amended (45) and now the law formally recognizes the right to create a springing power of attorney.


Banking Power of Attorney[edit]

A ‘Bank’ Power of Attorney is made by using forms provided by a financial institution in order to have authority over financial matters related to a specific account or transactions within that institution. In the past, older adults and family were frequently informed by bank staff that only their institution’s forms could be used. That was not correct.

In December, 2013 the Canadian Bankers Association (CBA) outlined the circumstances in which a Power of Attorney might be questioned by a bank, and the steps the bank would take to review it. (46)The CBA specifically stated that the bank’s power of attorney forms are for the customer’s convenience, and not a bank’s requirement. (47)Although this new policy directive may exist, people may still encounter many problems in trying to use their own power of attorney forms at banks when aiding older adults, including those residing in care facilities.

The CBA also noted that banks generally allow payment of bills related to the adult’s personal living expenses (e.g. nursing home bills, rent, utilities) from their assets held with the bank even where it has questions related to a power of attorney, the instructions to the Attorney, or the client’s capacity.(48) The Canadian Bankers Association further stated if an individual brings bills to the bank to be paid, banks may consider allowing payment even without a power of attorney – usually after trying to speak with the client. This can be challenging for residents in care facilities who have little if any access to the bank anymore because of their physical or mental limitations. It has been pointed out that banks may be violating federal human rights law by failing to provide services in a way that is accessible to older and disabled clients.(49)

“It is not the policy of any bank to insist on clients using the bank’s own form of POA.”
- Canadian Bankers Association, 2013

Banks state they experience a number of common difficulties with improperly prepared power of attorney documents. These include vague language, a lack of clarity, undated documents and changes made in the document that are not initialled. There can also be concerns with whether a customer was mentally capable when the power of attorney was granted.

The ‘Bank’ POA may only allow the attorney to deal with financial affairs at that specific institution – for example, to manage the person’s bank account, and pay bills from it. The attorney however would not be able to use the Bank’s POA as authority to contract on the resident’s behalf with the care facility, to act at a different financial institution, to deal with Canada Revenue Agency about taxes or to release any needed tax information in order to the Health Authority in order to determine if the resident is eligible for a subsidized residential care rate.

A bank power of attorney form may also have a standard clause that revokes previous powers of attorney. This may undo some careful advance planning if the bank’s power of attorney form is signed.

Obligations under a Power of Attorney[edit]

As a result of changes to the law in 2011, any person granted an enduring power of attorney or other power of attorney now has specific legal duties which she or he owes to the person who granted the power of attorney. These duties existed in common law and include to:

  • act honestly and in good faith;
  • exercise the care, diligence and skill of a reasonably prudent person; and
  • act within the authority given in the enduring power of attorney. (50)

The attorney has a duty to keep and produce financial records, plus copy them at the request of the adult. (51)This is an important duty to know for people acting as attorneys or in a person’s decision about who to appoint as an attorney.

People granted Power of Attorney now have a specific duty when managing the adult's financial affairs to give priority to the adult’s personal and health care needs.

This duty contains some specific (and significant) responsibilities. An attorney must now make reasonable efforts to determine the status of an adult's property and liabilities. The attorney must keep and produce a current list of the adult's property, liabilities, accounts and other records respecting the exercise of the attorney's authority under the enduring power of attorney. (52)In addition, the attorney must preserve all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement of capital or income.

People granted the enduring power of attorney now have a specific duty when managing the adult's financial affairs to give priority to the adult’s personal and health care needs. (53)That would include paying the care facility bills. Consequently, an attorney must work closely with the adult. The attorney needs to be aware of the adult’s financial position, the assets and liabilities, plus needs to be familiar with the adult’s estate and future health care planning. The attorney also has a specific duty to encourage the adult's independence and involvement in any decision-making affecting the adult. (54)

Other duties of the attorney include:

  • to not dispose of property that is subject to a specific gift in the adult's will (except if the disposition is necessary for the attorney to perform her or his duties, for example to pay the adult’s bills)
  • to keep the adult's personal effects at the disposal of the adult
  • to invest the adult's property only in accordance with the British Columbia Trustee Act (unless the power of attorney states otherwise). (55)

Care providers cannot be authorized to act as an attorney.

The Power of Attorney Act also sets out who may be named as an attorney and who cannot be a witness. For example, the potential attorney must not be someone who provides personal care or health care services to the adult for compensation, or who is an employee of a facility in which the adult resides and receives personal care or health care services.(56)

Powers of the Person Granted the Power of Attorney.[edit]

Under a power of attorney, the attorney stands in the shoes of the person granting the power of attorney for financial and legal decisions. In order to properly carry out the duties, she or he has the same legal rights to same legal rights to information and records as the adult for whom the attorney is acting would. The attorney also has the legal right to request information and records that relate to the financial matters and authority that has been granted to the attorney.(57) So for example, in the context of residential care, that would mean the bills and expenses. It would not normally include access to medical information. (58)

Common Legal Issues around the Power of Attorney[edit]

Several common legal issues can arise in residential care with respect to the power of attorney (POA). These include:

  • that people are unaware that just because the resident has given a POA, the mentally capable resident still retains power over those decisions;
  • the person who granted the power of attorney may not be aware that she or he can revoke it if desired;
  • the person who holds the power of attorney is acting beyond the scope of authority; and
  • the person who holds the power of attorney is failing to act (generally, a failure to pay, resulting in the possibility of eviction or discharge).

There can be questions about the capacity of the older adult to give a power of attorney in the first place, to change or revoke it, especially when the documents are created or modified after moving into residential care. There may also be questions about the capacity of the older adult to act on his or her own. There may be disputes among step-children, children of prior relationships, as well as the subsequent spouse or partner about the power of attorney.

In some cases a power of attorney has been obtained by an individual with improper motives from an incapable or vulnerable adult before or while the adult is living in a residential care facility. (59) There may be questions or concerns about the attorney misappropriating the grantor’s money or other assets. (60) Some people may exert undue influence, or gain the authority under suspicious circumstances including by fraud or through forgery. Disputes can also arise where one or several attorneys have acted without the knowledge or approval of the others under a joint power of attorney. (61)

The Resident Retains Power[edit]

One of the biggest challenges that many residents face having granted a power of attorney or other legal document is that staff often turn to that designated person or the document, and ignore the resident in decision-making. It is important to remember just because the resident has given someone a power of attorney, the resident stills retains the all the ordinary rights to information, plus the power and authority to make her or his own financial decisions, as long as the resident is mentally capable. The mental capability to make a specific financial decision can be different than the mental capability needed to grant the enduring power of attorney.

The capacity to make a financial decision depends on the specific decision. For example, the mental capacity of a resident to decide on what to spend her or his “comfort allowance” may be an easy threshold for many residents to meet.

In residential care, there can be considerable overlap over whether a matter is a financial decision, a personal care decision, or a health decision. For example, whether the person will live in shared room or a private room in the facility can affect their physical health and mental state; it can affect with whom they can associate and their privacy, plus it will have financial implications. Where there are different types of decision-makers for a decision, the responses can become quite contradictory.

What the Administration Can Legitimately Ask[edit]

The care facility administration can ask whether the person moving to the facility has specific planning documents. They need to know this in order to know to whom they may need to contact for certain decisions, if the resident becomes incapable of making that decision. However, it is far less clear whether (or who among) the care facility staff can or should know about the details of the documents, and access them. It is also unclear whether the facility should simply be able to keep a copy as part of resident’s records. It is quite common for administration to be aware in a general sense that a planning document exists and that someone has authority, but they may not necessarily know its scope or if it is the most current resident’s document.

Acting Beyond the Scope of Authority[edit]

Many people, including staff, family and the general public are unaware of what authority a power of attorney gives. It is common for staff to be told by a person holding a power of attorney that the staff should not permit a certain person or people to visit the resident. It is also common for staff to accede to the person with the power of attorney and to permit that person to make health care decisions. Neither action is legal.

An enduring power of attorney only covers financial decisions and the related legal matters. The person with a power of attorney has no authority to make decisions other than those. Whether to have visitors, and which visitors to have are personal care decisions; and treatment is a health care decision.

Some persons with the power of attorney may also have authority in other kinds of situations. For example, they might also be the highest eligible person to act as a temporary substitute decision maker for health decisions if the resident has become mentally incapable of making the specific health care decision. However, that authority is separate and distinct from the authority given by the power of attorney.\

A Person Granted Power of Attorney Failing to Act[edit]

This typically shows up in two ways: (a) not providing for the older adult’s ”extra needs” and (b) as a failure to pay the care facility bills on behalf of the resident. Some of these situations occur when the adult or the attorney completely misunderstands the nature and scope of the document and their responsibility. Other situations reflect a conflict of interest, if the attorney will inherit money that is not spent on the older adult. Still other circumstances reflect problems of the attorney’s general mismanagement, errors of judgement or where the attorney has abandoned the responsibility. (62) Of course, there may be systematic looting of the adult's estate by previously trusted friends or relatives, which can occur without detection for a long period.

(i) Not providing for the older adult.

As previously noted, the person granted power of attorney has a legal duty to give priority to the person’s personal and health needs exercising the responsibility as attorney. (63) Residents pay for care and services at the facility. In most instances, the amount of co-payment will leave the resident with a small amount for personal needs for what has traditionally been called a “comfort allowance”. This may be held in a special account in the facility or the person with the power of attorney may have control of the money.

The person granted the power of attorney might ignore the staff’s requests for additional funds for the resident’s basic or specials needs such as undergarments or other clothing, haircuts, eyeglasses, hearing aid, or dental work. Unfortunately this omission can reflect an ageist attitude that “it doesn’t matter - the person in care doesn’t need anything new, as she will likely not need it much longer.” The person granted the power of attorney may be interested in preserving as much of the estate as possible, to the detriment of the president’s day to day quality of life. This type of action clearly violates the attorney’s responsibilities under the Power of Attorney Act. While the attorney is not expected to pay for items out of his or her personal resources, the person should be drawing from the resident’s available resources.

  • Comfort allowance (Minimum disposable income allowance).
For subsidized beds in licensed care facilities, the amount contributed by the resident is based on their income, to a set maximum. The rates set by government create a “buffer”, (minimum disposable income allowance sometimes referred to as a “comfort allowance”). About two thirds of residents in BC care facilities depend on this amount to cover expenses beyond what the facility charges for basic care (64). The comfort allowance is for the personal and recreational needs of the recipient, (i.e., haircuts, personal laundry, television rental, tobacco products, or transportation to recreational activities, and wheelchair rental).

(ii) Financial disputes

Because the person with the power of attorney has a responsibility to pay, that person may question the bills coming from the care facility. Many of the costs covered when a person is in a hospital are not covered when a person moves to a residential care facility. The person with a power of attorney may have legitimate questions over whether the item or charges are “chargeable” and “non chargeable”. (65) [For more details, see Chapter 4 Legal Issues When Living in Residential Care]

It has also been noted that the person who controls the pocketbook (who has the Power of Attorney, or is the Committee of Estate) may not always see eye to eye with the individual who makes decisions about the person (e.g. Committee of Person, Representative for Personal Care). (66)This can lead to financial disputes.

(iii) Failure to pay

In some instances, the failure to pay may be a simple oversight by the person granted the power of attorney, or reflect the person’s lack of financial management skills. (67)In other instances, it may reflect a broader problem with the person holding the power of attorney, including potential financial misuse or abuse.

The care facility administration may bring the matter of non payment to the attention of the resident, which may cause the resident confusion and significant distress. Unfortunately in some of these “failure to pay “instances, the care facility administration may threaten the resident with eviction for non-payment. [Whether this is ever appropriate is discussed under Discharge & Eviction in the Chapter 4 on Legal Issues When Living in a Care Facility).

Personal, Health and Other Decisions[edit]

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Representation Agreements[edit]

The Representation Agreement Act allows a person to appoint someone as their legal representative to handle financial, legal, personal care and health care decisions, if the person is unable to make them on her or his own.

Changes to BC’s Representation Agreement Act came into effect on September 1, 2011. Representation agreements signed before then will generally still be valid. But any representation agreements signed on or after September 1, 2011 must follow all the new laws.

A representation agreement is a legal document by which an adult can choose someone they trust to be their legal representative. The representative may then make decisions for the person, if the older adult is incapable of doing so on his or her own. Representation agreements also permit for supportive decisionmaking ( helping the person with decisions, rather than necessarily making the decision for them).

Depending on the type of document, a representative may be given decision-making authority for personal care, health care, and, the routine management of financial affairs, including legal matters. That person can be almost anyone the older adult chooses, including a family member, friend, or someone else. A person cannot appoint anyone who is paid to provide them with personal or health care or who is an employee of a facility through which they receive personal or health care. (68)

Types[edit]

There are two types of representation agreements:

  • Section 7 standard agreement – to cover routine financial legal, and personal care and health care matters (“straightforward, everyday decisions”)
  • Section 9 extended agreement – to deal with complex personal care and health care matters.

A Section 9 agreement is needed if the representative will make decisions such as refusing life support if the individual becomes terminally ill.

  • (i) Section 7 (“Standard”) Representation Agreements

A section 7 representation agreements (sometimes referred to as an RA7 for Finances and RA7 for Personal and Health Care) is a limited agreement that allows the adult to name a representative to make straightforward, everyday decisions about personal care and health care treatments, as well as routine management of financial matters. The capability requirements for making a section 7 representation agreement are different than those for making other legal documents. Individuals may make this type of agreement even if they are considered incapable of making a power of attorney or a will, if they cannot make a contract or cannot make their own financial or legal decisions, health or personal decisions independently. (69)

In a section 7 representation agreement, an adult may authorize his or her representative to help the adult make decisions (or to make decisions on behalf of the adult) about any or all of the following:

  • the adult's personal care;
  • routine management of the adult's financial affairs, including,
    • bill payment,
    • receiving and depositing pension and other income,
    • purchasing food, accommodation and other services necessary for personal care,
    • making certain investments
  • most major health care and minor health care,* as defined in the Health Care (Consent) and Care Facility (Admission) Act; (70)
  • obtaining legal services for the adult and instructing counsel to deal with any legal proceedings on the adult's behalf, except divorce proceedings. (71)

There is no specific test of capability for section 7 representation agreement. If the person’s capability is questioned, Representation Agreement Act says people must take into account all relevant factors. The Act offers some examples of those factors, including

  • Does the adult express choices and preferences and express feelings of approval or disapproval of others?
  • Is the relationship with the other characterized by trust? (72)
  • How does the person communicate choices and preferences, their likes and dislikes?

The agreement should name a monitor

Generally speaking, unless the representative is the adult’s spouse, a section 7 representation agreement that covers routine payment of bills must name another person as a “monitor” to help ensure that the representative lives up to their duties. Otherwise the agreement must specifically state that a monitor is not required. (73)

A representative who is authorized to do anything referred to in section 7 (1) (b) must keep the adult's assets separate from the representative's assets. (74)

  • (ii) Section 9 Agreements (“non standard” or “enhanced” agreement)


A section 9 representation agreement allows the adult to name a representative to make decisions about personal care and health care treatments, including decisions about accepting or refusing life support and life-prolonging medical interventions. A representative named in a section 9 representation agreement may not make decisions about financial matters. This would require the addition of an enduring power of attorney.

A Section 9 agreement is required where the representative needs to deal with complex personal care and health care matters. It is also needed in order for a representative to make decisions such as refusing life support if the person becomes terminally ill.

Section 10 of the Representation Agreement Act sets out the test of capacity for creating a valid section 9 agreement:

“An adult may authorize a representative to do any or all of the things referred to in section 9 unless the adult is incapable of understanding the nature and consequences of the proposed agreement.
General Matters for all Representation Agreements[edit]
Signing Requirements
Two witnesses are needed when the person giving the authority signs a representation agreement (unless one of the witnesses is a lawyer or notary, in which case only the lawyer’s or notary’s signature is required). There are also specific restrictions on who can be a witness. (75)
The Representative’s duties
For both types of agreements, representatives have enumerated duties and obligations under the law. These include:
  • to consult with the individual, as much as is reasonable, to determine the person’s wishes;
  • to act honestly and in good faith;
  • to take into account the person’s current wishes, and if the individual is unable to express their wishes at that time, to take into account any wishes or instructions that the person may have given while capable of doing so;
  • to act within the authority granted by the representation agreement;
  • to keep individual’s assets separate from the representative's assets;
  • to keep proper records including creating and maintaining a list of the person’s property and liabilities. (76)
Lawyer involvement
The law does not require the person to consult a lawyer to make a representation agreement. However, a lawyer can help the person and the potential representative (s) to understand the wide range of issues that arise with a representation agreement.
Registering the documents
The representation agreement and documents such as enduring power of attorney can be voluntarily registered at the Nidus Personal Planning Resource Centre & Registry. Hospitals, banks and government services can search the registry to find out who the attorney or representative is if they need to know. See www.nidus.ca.
Common Legal Issues Arising Around Representation Agreements[edit]

The most common legal issues that arise around representation agreements for adults in residential care facilities relate to the circumstances in which these were created, especially if executed after the resident moves to the facility. Many adults have few options in later life about who, if anyone, they can reasonably choose to be a representative. Like other legal documents, there may also be concerns about the capacity of the individual at the time the agreement was signed, the spectre of undue influence, and conflicts about the decisions being made by the representative.

Canadian research has indicated that supported decision-making with vulnerable adults is challenging within the current health care and financial context. People given the authority to help with decisions often move by necessity or frustration, to a more direct substitute decision-making and plenary approach, because that is what the broader system forces them into doing. (77)

Representatives have identified that even though they have the legal authority as substitutes to make decisions about the care and well-being of the resident, many decisions in residential care such as medication changes, are still made without their knowledge or consent [examples of exclusion from care planning are provided in the Chapter 4 on Legal Issues When Living in Residential Care]. Representatives also point out they often lack needed information from the facility care providers in order to make informed decisions. The Patient Care Quality Office has stated to concerned family members that it will not deal with concerns related to representation agreements, even if the situation involves areas over which the Office normally has jurisdiction (such as resident’s rights or quality of care). (78)

Court Appointed Substitutes - Adult Guardianship/Committeeship[edit]

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A committee is an individual appointed by the BC Supreme Court to make personal, medical, legal, or financial decisions for someone who is mentally incapable and cannot make those decisions. The person must be found to be mentally incapable under the Patients Property Act.

To become a committee, the individual is appointed by an order under the Patients Property Act. Among other things, the court application requires affidavits from two doctors stating the person is not able to manage their financial and legal affairs (or their personal and medical decisions) and explaining why.(79)

A committee of the person makes personal and medical decisions for someone who is not mentally capable, including decisions about where the person will live. Usually a family member or close friend will do this. Rarely, the Public Guardian and Trustee will agree to be committee of the person. Only the court can appoint a committee of the person. A committee of the estate makes financial and legal decisions for someone who is not mentally capable. A family member or close friend, a trust company, or the Public Guardian and Trustee of British Columbia can fill this role.

Important Legislative Change[edit]

A major 2013 report “No Longer Your Decision” by the Office of the British Columbia Ombudsperson made a number of recommendations to the Ministry of Justice for legislative or regulatory changes related to committeeship and how people are determined to be mentally incapable. (80) The Ministry committed to implementing eleven of those recommendations by July 1, 2014.

As a result, the Adult Guardianship Act may finally replace the Patients Property Act as the law in B.C. (81) Two major changes have been noted:

  • The criteria for deciding when a certificate of incapability is issued will be standardized.
  • Guardians will be required, where reasonable, to encourage the adult’s involvement in decision making that affects the adult.

The information given below, however, is based on the current system.

A committee of the estate can be appointed by the court. The Public Guardian and Trustee can also be appointed as committee of the estate by a certificate of incapability under the Patients Property Act. No one else can be appointed this way.

Generally the committee has the same powers to deal with the person's estate and affairs as the person had when they were capable. However the court can restrict the committee’s powers. A committee cannot make a will or estate plan for the person, vote on their behalf, or consent to marriage for them. Committees have a fiduciary responsibility; they must put the person’s interest ahead of their own and cannot mix their assets with the other person’s.

As long as they are mentally capable, a person can nominate someone they would prefer to be their own committee, in case they ever need one. The court will usually follow the person’s guidance. There are specific formal processes and a simple document to nominate a committee.

The responsibilities as a committee can include:

  • handling the person's property,
  • doing the person's banking,
  • paying the person's expenses,
  • budgeting for the person's family,
  • selling the person's personal property and real estate,
  • entering into contracts for the person and operating the person's business,
  • dealing with any lawsuits involving the person,
  • filing the person's income tax returns,
  • applying for the person's pension and other benefits,
  • making medical decisions for the person,
  • deciding where and how the person should live.

The Public Guardian and Trustee reviews all applications for committees. A Committee of Person may consent or refuse to consent to health care necessary to preserve life. The Court may set limits on the Committee. Where there is a Committee of Person, the health care provider must obtain consent from the Committee. A Committee of Person cannot override the Mental Health Act regarding involuntary treatment.

Having a committee appointed has a major effect on existing legal documents it terminates a power of attorney, including an enduring power of attorney. (82) It usually terminates a representation agreement as well.

Substitute Decision-Making Through Instructions - Advance Care Directives[edit]

An advance directive is not substitute decision-making. It is a set of instructions to health care providers. However in effect it can make the health care provider the substitute decision-maker for health care decisions in specific circumstances.

The Basics[edit]

Advance directives are recognized by Part 2.1 of the Health Care Consent and Care Facility (Admission) Act. They must be in writing and witnessed by two people.(83) There are prohibitions on who can be witnesses. The advance directive can be changed or revoked by the person, if the person changes her or his mind at some point in the future.

Advance directives have a specific test for mental capacity which people must meet to use this document for themselves. (84) The person is presumed to be mentally capable of understanding the nature and consequences of the proposed advance directive. However a person is not considered capable, if the adult does not understand that:

(a) the scope and effect of the health care instructions set out in the advance directive (basically that a health care provider may not provide to the adult any health care for which the adult refuses consent in the advance directive), and
(b) a temporary substitute decision-making will not be chosen to make decisions on the adult’s behalf for any matter that is covered in the advance directive.(85)

The BC Ministry of Health has developed an advance directive form for individuals to use when undertaking advance care planning, but using the form is optional.

Does the health care provider always have to follow the advance directive?[edit]

There are certain circumstances in which health care providers are not required to follow an advance directive. These include if:

  • the “directions” in the advance directive are unclear, or do not apply to the treatment in question.
  • the wishes and values of the person change after writing the advance directive (but while the person is still mentally capable).
  • there have been significant improvements in medical treatment since the advance directive was made.
  • the instructions are illegal. (86)

Also if the health care decision falls into one of the exceptions set out in section 19.8., e.g. it is not covered by the advance directive. (87) The advance directive will not be followed if there is a “committee of the person” or representation agreement in effect (unless the representation agreement states that certain decisions are to be as set out in the advance directive and not made by a representative).

Common Legal Issues with Advance Directives[edit]

Advance directives can provide consent or refuse consent to health care. Although people have often expressed their wishes formally or informally to family, friends or care providers, advance directives are a relatively new recognized legal document in British Columbia. Advance directives have typically been considered as geared to “end of life care”, and may not be well suited for what happens in providing day to day health care for people living in residential care facilities.

In other jurisdictions, advocates have found that when health care providers know there is an advance directive or similar legal document, they may not communicate with the mentally capable older adult to determine the person’s wishes about their health care. Instead, they rely on the document and in some cases, apply it inappropriately to situations the person likely never intended (for example, not being treated for ordinary health conditions, or conversely, treating the advance directive as consent). (88) At a minimum, the advance directive must set out what treatment is being refused and in what circumstances.

Advance directives have several positive aspects

  • they can open lines of communication;
  • provide direction of care;
  • give the person control over decisions and
  • may relieve family stress.

On the other hand, there have been several negative aspects of advance directives identified. These include that the advance directives

  • are often too "procedure"- oriented (focused on the formal requirements);
  • require extensive interpretation;
  • may be ineffective when most needed;
  • may lead to "under-treatment", and
  • are pre-made, so the decision is not based on complete information. (89)

The Canadian Bar Association noted the potential for coercion in advance directives. They also found that advance directives are often filled in by or with health care administrators, in the absence of discussions with other health care or legal professionals. (90)

Health care providers in British Columbia note they are beginning to have older adults come to them with very lengthy advance care directives drafted by individuals or lawyers. The documents may be vague statements of wishes that the person wants the health care provider to respect. At the other end of the spectrum, the document may identify multiple conditions and contingencies, including many situations the people are unlikely to face (in effect, a “shopping list of possibilities”). Both situations make it difficult for the health care provider to determine whether or not the advance directive can or should be followed.

Advance directives are subject to the exceptions in section 19.8 of the Health Care Consent and Care Facility (Admission) Act. Each exception is open to personal and professional judgment, as well as significant differences of opinion on when and how the advance directive can or should be overridden. As noted the chapter on Consent & Capacity, health care consent is based on “informed consent”. That means not only knowing what the options are, but how these apply to this person in this situation at this point in time. Consent must be informed, given voluntarily; and not be obtained through misrepresentation or fraud.

References[edit]

  1. Health Care (Consent) and Care Facility (Admission) Act [RSBC 1996] c. 181 [ “HCCCFA”]
  2. HCCCFAA, s. 16 (2)
  3. “Spouse” includes people in “marriage-like relationships”, covering both formalized and common law marriages, as well as same sex marriage-like relationships. HCCCFA, s. 1
  4. HCCCFAA, s. 16 (1).
  5. HCCCFAA, s. 16 (4).
  6. HCCCFAA, s. 16 (3).
  7. HCCCFAA, s. S. 17(1).
  8. HCCCFA, s. 1 “health care” subsection (b) (ii)
  9. HCCCFA, s. 19 (1) (a) (i).
  10. HCCCCFA, s. 19 (1) (b).
  11. HCCCFA, s. 19 (1) (a) (ii).
  12. HCCCFA, s.19 (2).
  13. HCCCFA, s. 19 (3). Also NIDUS, Health Care Consent: Restrictions on the Authority of a Temporary Substitute Decision Maker. Online: http://www.nidus.ca/PDFs/Nidus_Info_Restrictions_on_Authority_TSDM.pdf (Last accessed: May 1, 2014).
  14. HCCCFAA, s. S. 17 (6).
  15. HCCCFAA, s. S. 17 (8).
  16. HCCCFA, s. 17 (2.2) (a).
  17. HCCCFAA, s. S. 17 (5).
  18. HCCCFAA, s. 33 (2) (a).
  19. HCCCFAA, s. 33 (2) (b).
  20. Health Care Consent Regulation B.C. Reg. 20/2000, as amended, s. 5. [“HCCCFA Reg”]
  21. HCCCFAA, s. 33.1.
  22. HCCCFAA, s. 16 (4).
  23. ACE, Manual.
  24. Power of Attorney Act [RSBC 1996]c 370, s. 1 [“POAA”]
  25. POAA, s. 12 (2). Adult may make enduring power of attorney unless incapable.\
    1. 12 (1)An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.
    2. (2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:
      1. (a) the property the adult has and its approximate value;
      2. (b) the obligations the adult owes to his or her dependants;
      3. (c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;
      4. (d) that, unless the attorney manages the adult's business and property prudently, their value may decline;
      5. (e) that the attorney might misuse the attorney's authority;
      6. (f) that the adult may, if capable, revoke the enduring power of attorney;
      7. (g) any other prescribed matter.
  26. POAA, s. 17 (1).
  27. POAA, s. s27 (1).
  28. Online: www.nidus.ca (Last accessed: May 1, 2014).
  29. The enduring power of attorney or a representation agreement for property is suspended if the person granting the power has been “certified” under the Patient Property Act. [RSBC 1996] c. 349, s. 19.1.
  30. POAA, s. 30 (4) (b). For some people, the duties may continue but only under other legal authority, e.g. as executor of will, administrator of the estate, representative grant.
  31. POAA, s. 28.
  32. POAA, s. 31 (3).
  33. POAA, s. 35 (2).
  34. POAA, s. 35.
  35. POAA, s. 35 (1).
  36. POAA, s. 29 (2) (d) (i).
  37. POAA, s.29 (2) (d).
  38. POAA, s. 34 (2) (a).
  39. POAA, s. 34 (2) (c ) (i).
  40. POAA, s. 34 (2) (b).
  41. POAA, s. 34 (2).
  42. POAA, s. 34 (3).
  43. Patients Property Act, [RSBC 1996] c. 349. {“PPA”]
  44. Goodrich v. British Columbia (Registrar of Land Titles), [2004] BCCA 100
  45. Adult Guardianship and Planning Statutes Amendment Act, 2007, Bill 29.
  46. Canadian Bankers Association. Consumer Information. “Protecting yourself from financial abuse”. Online: http://www.cba.ca/en/consumer-information/92-protecting-yourself-from-financial-abuse/695-powers-of-attorney-bank-requirements {“CBA, 1”] (Last accessed: May 1, 2014).
  47. Canadian Bankers Association. Preventing Financial Abuse. Online: http://www.cba.ca/contents/files/misc/msc-preventing-finabuse-print-en.pdf [“CBA, 2”] (Last accessed: May1, 2014).
  48. CBA, 2, ibid.
  49. L. Beachell, of the Council of Canadians with Disabilities, comment in Tomlinson, K. (Nov. 12, 2012). “RBC blocks housebound senior from getting her money .” CBC News. Online: http://www.cbc.ca/news/canada/british-columbia/rbc-blocks-housebound-senior-from-getting-her-money-1.1210222 (Last accessed: May 1, 2014).
  50. POAA, s. 19(1).
  51. POAA, s. 19(1).
  52. POAA, s.19.
  53. POAA, s. 19.
  54. POAA, c.370, 19 (3) (c).
  55. POAA, s.19 (3).
  56. There is an exception made where the individual working the facility is a child, parent or spouse of the adult.
  57. POAA, s. 32 (1) (a) and (b); also, s. 32 (2).
  58. Arguably, there are situations where access to health information might seem to be necessary, e.g. to determine payment of certain medical bills. Whether the attorney could request is debatable, though.
  59. K. Whalley, Power of Attorney Pitfalls. Online: http://whaleyestatelitigation.com/resources/WEL_PowerofAttorneyPitfalls.pdf [“Whalley”] (Last accessed: May 1, 2014).
  60. Whalley, ibid.
  61. Whalley, ibid.
  62. Gordon, R. M. (1992). Material abuse and powers of attorney in Canada: a preliminary examination. Journal of Elder Abuse and Neglect, 4 (1-2). 173-193. [“Gordon”]
  63. POAA, s. 19
  64. Government of BC. (November 2009), p. 3. Online: “Home and Community Care Information Guide for the New Residential Care Rate Structure,” Also see: http://cupe.ca/updir/Residential_LTC_charges_and_income_allowances_across_Canada-2.pdf (Last accessed: May 1, 2014).
  65. Health and Community Care Policy Manual. 6. F- Residential Care, “ Benefits and Allowable Charges” (October 15, 2012)
  66. Mclellan Herbert. Estate litigation 2011: contested committeeship applications. Online: http://www.mclellanherbert.com/Estate-Litigation-2011-Contested-Committeeship-Applications.pdf (Last accessed: May 1, 2014).
  67. Gordon.
  68. An exception is made if that person is their child, parent or spouse.
  69. RAA, s. 8 (1).
  70. It does exclude the types of major health care identified in the regulation, such as ECT, psychosurgery; experimental health care; medical research; negative stimulus (aversive) therapy; tissue removal for implantation.
  71. RAA, s. 7 (1)
  72. RAA, s. 8 (2)
  73. RRA, s. 12 (1)
  74. RRA, s. 16 (9)
  75. RRA, s. 13
  76. RRA, s. 16
  77. Canadian Centre for Elder Law. (March 2014) Understanding the lived experiences of supported decision-making in Canada: A Study Paper. Prepared for Law Commission of Ontario. Online: http://www.lco-cdo.org/capacity-guardianship-commissioned-paper-ccel.pdf (Last accessed: May 1, 2014).
  78. As a result, these matters would likely either be unresolved or go to court.
  79. PPA, s. 3 (1) sets out the court application process. Under the Patients Property Act, there are two processes for appointing a committee. The Supreme Court can appoint a public agency or private individual committee of estate and/or person by court order. Health authorities can appoint a committee of estate and that committee of estate must be a public agency, namely the Public Guardian and Trustee. Pg. 28.

Office of the British Columbia Ombudsperson. (February 2013). No longer your decision: British Columbia’s process for appointing the Public Guardian and Trustee to manage the financial affairs of incapable adults. Public Report No. 49. Online: https://www.bcombudsperson.ca/sites/default/files/Public%20Report%20No%20-%2049%20No%20Longer%20Your%20Decision-%20BC%27s%20Process%20for%20appointing%20the%20Public%20Guardian%20and%20Trustee-%20Incapable%20Adults.pdf (Last accessed January 9, 2016). [“Ombuds, No longer your decision”]

  1. Ombuds, No longer your decision.
  2. Bill 32 -- 2006 Adult Guardianship and Personal Planning Statutes Amendment Act, 2006.
  3. POAA, s. 30 (3).
  4. HCCCFA, s.19.5.
  5. HCCCFA, 19.1 (2).
  6. HCCFA, s. 19.1.
  7. HCCCFA, s. 19.8.
  8. HCCCFA, s. 19. 1 (2).
  9. See for example, Canadian Bar Association. (June 2010). Advance Care Planning. National Elder Law, Health Law, and Wills, Estates and Trust Law Sections, CBA. Online: http://www.cba.org/cba/submissions/pdf/10-46-eng.pdf at pg. 4 [“CBA, Elder Law”] (Last accessed: May 1, 2014).
  10. Applegate, K., Crissman, C. , Morgan, B. & Reid, B. “Advance Directives.” University of Kentucky, Department of Philosophy. Also see Sabatino, C. (October 2007). Advance Directives and Advance Care Planning: Legal and Policy Issues. American Bar Association, Commission on Law and Aging. U.S. Department of Health and Human Services Assistant Secretary for Planning and Evaluation Office of Disability, Aging and Long-Term Care Policy. Online: http://aspe.hhs.gov/daltcp/reports/2007/adacplpi.pdf Last accessed: April 22, 2014. Sabatino notes that conventional advance directives appear to have had relatively little impact because too few people make use of the legal tools; and when they do, they do not understand the forms they complete nor the future decisions that might have to be made. The forms themselves do not provide much guidance; the persons’ goals and preferences for care may change; and even if providers know one exists, it often does not affect care.
  11. CBA, Elder Law.
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by BC Centre for Elder Advocacy and Support, June 2014.


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

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner." See "age of majority."

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

A term under the Family Law Act that describes the visitation rights of a person, who is not a guardian, with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."

Agreement; the giving of permission for a thing to happen or not happen.

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

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

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

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

In family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."

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

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no right to a say in how or what regulations are imposed by government. See "act."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

In law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary," without owning that property and usually without acquiring an interest in that property other than as payment for their services. The trustee holds the property in trust for the beneficiary. See "constructive trust," "ownership," "possession," and "resulting trust."

In law, a lawyer's bill to their client or a statement; one person's recollection of events.

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

In contract law, to complete or accomplish; to complete the legal formalities necessary to give a document effect. One "executes" a separation agreement, for example, by signing it in the presence of a witness.

Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."

In family law, this usually refers to one party obtaining a part of the property at issue before the property has been finally divided by court order or the parties' agreement.

A person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action," and "party."

Real property; a parcel of real property and the buildings upon it. See also "chattel," "ownership," and "possession."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage," and "spouse."

The highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts, and certain tribunals. See "appeal."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order," and "spousal support."

Under the Divorce Act, the schedule of a parent's time with their children under an order or agreement. Access usually refers to the schedule of the parent with the least amount of time with the child. See "custody."

In family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

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

Acting in an honest, truthful, open, and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase bona fide. See "bad faith."

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

A voluntary transfer of property from one person to another, without expectation of payment or reward. Gifts to one spouse do not usually qualify as family property, and are excluded from the pool of property to be divided. See "donee," "donor," "excluded property," and "family property."

A person with direct, personal knowledge of facts and events; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath," and "opinion evidence."

An obligation at law to do or not do a thing, whether by legislation, the common law, or an order of the court. For example, the Criminal Code imposes a legal duty on parents that requires them to provide the necessities of life to their children until they turn 16. See "duty."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence."

In law, a failure to do something, whether the failure was intentional or unintentional.

A calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees."

A lawyer; the advice given by a lawyer to their client.

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of."

A person licensed to practice law in a particular jurisdiction. See "barrister and solicitor."

A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed; a courthouse.

In contract law, the inability to complete or fulfill a contract, whether intentional or unintentional; the intentional interference with a person's rights under a contract or court order. In family law, the motivation for an application for annulment based on non-consummation of the marriage. A contract that cannot be completed or fulfilled is said to be "frustrated."

With respect to courts, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agent. See “constitution."

Chattels, goods, money; property other than real property. See "chattel" and "real property."

The use of force or intimidation, whether emotional or physical, to compel another person to do something; interference with another person's freedom of choice to obtain an outcome, action, or behaviour.

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

Acts or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith."

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

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