1993 Legislative Session: 2nd Session, 35th Parliament
THIRD READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


Certified correct as passed Third Reading on the 21st day of July, 1993
Ian D. Izard, Law Clerk.


HONOURABLE COLIN GABELMANN
ATTORNEY GENERAL

BILL 49 -- 1993

ADULT GUARDIANSHIP ACT

Contents

Section  

 
Part 1 -- Introductory Provisions

 

1 

Definitions

 

2 

Guiding principles

 
Part 2 -- Decision Makers, Guardians and Monitors

 

 
Division 1 - - Appointment Procedure

 

3 

Presumption of capability

 

4 

Review and assessment

 

5 

Review and assessment reports

 

6 

Application for appointment of decision maker or guardian

 

7 

Who can be appointed

 

8 

Documents to be filed and served

 

9 

The hearing

 

10 

Appointment of decision makers and guardians

 

11 

Appointment of alternate decision makers and guardians

 

12 

Appointment of monitors

 

13 

Appointment of temporary guardian in emergency

 

14 

Effect of appointment on power of attorney or representation agreement

 

 
Division 2 - - Powers, Duties and Liability

 

15 

General rule - - Authority of decision makers and guardians to be limited

 

16 

Contents of order appointing an associate decision maker

 

17 

Contents of order appointing a substitute decision maker

 

18 

Contents of order appointing a guardian

 

19 

Examples of a decision maker's or guardian's powers

 

20 

Express authority required

 

21 

Refusal of health care

 

22 

Management of financial affairs, business or assets

 

23 

Effect of anything done by decision maker or guardian

 

24 

Effect of failing to consult associate decision maker

 

25 

Disposal of assets by incapable adult

 

26 

Power to retain services

 

27 

Right of decision maker or guardian to information

 

28 

Duties of decision maker or guardian

 

29 

Duty to comply with adult's wishes, instructions or beliefs

 

30 

Record keeping and reporting duties of decision maker or guardian

 

31 

Duties and powers of monitor

 

32 

Duty to keep information confidential

 

33 

Payment and expenses

 

34 

Advice and assistance for decision makers and guardians

 

35 

Liability of decision maker, guardian or monitor

 

 
Division 3 - - Removal, Replacement and Review

 

36 

Removal or replacement of decision maker, guardian or monitor

 

37 

Application for review of order appointing decision maker or guardian

 

38 

Hearing of application for review

 

39 

Termination of orders

 

40 

If decision maker or guardian is unable to act

 

 
Division 4 - - Legal Proceedings, Foreign Orders and Appointments

 

41 

Legal proceedings

 

42 

Orders from outside British Columbia

 

43 

Appointment of persons outside British Columbia

 
Part 3 -- Support and Assistance for Abused and Neglected Adults

 

44 

Purpose of this Part

 

45 

Application of this Part

 

46 

Reporting abuse or neglect

 

47 

Determining if the adult needs support and assistance

 

48 

Power to investigate

 

49 

Power to enter to investigate

 

50 

Duty to report offence

 

51 

Outcome of investigation

 

52 

Adult's involvement in decision making

 

53 

Support and assistance plan

 

54 

Application for support and assistance orders

 

55 

The hearing

 

56 

Support and assistance orders

 

57 

Review of support and assistance orders

 

58 

Review of orders preventing contact

 

59 

Emergency assistance

 

60 

Appeal from Provincial Court decision

 
Part 4 -- Administrative and Miscellaneous Provisions

 

61 

Designated agencies and organization of community agencies

 

62 

Right of designated agency and Public Trustee to information and duty to ensure confidentiality

 

63 

Regulations

 

64 

Offences

 

65 

Transition from the Patients Property Act

 

66-99 

Consequential Amendments

 

100 

Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

 
PART 1 -- INTRODUCTORY PROVISIONS

Definitions

1 In this Act "abuse" means the deliberate mistreatment of an adult that causes the adult

(a) physical, mental or emotional harm, or

(b) damage to or loss of assets, and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

"adult" means anyone who has reached 19 years of age and, for all purposes incidental to an application under section 6 (2), includes a person who has reached 18 years of age;

"care facility" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"court" means

(a) in this Part and Part 2, the Supreme Court,

(b) in Part 3, the Provincial Court, and

(c) in Part 4, the Supreme Court or the Provincial Court;

"decision maker" means a person appointed under this Act as an associate decision maker or substitute decision maker;

"designated agency" means

(a) in Part 2, a public body, organization or person designated under section 61 (a) for the purposes of that Part,

(b) in Part 3, a public body, organization or person designated under section 61 (a) for the purposes of that Part, and

(c) in Part 4, a public body, organization or person referred to in paragraph (a) or (b);

"health care" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"near relative" means an adult child, a parent, an adult brother or sister or any other adult relation by birth or adoption;

"nearest relative" means the person mentioned in the definition of "near relative" who has priority in the order mentioned in that definition;

"neglect" means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage to or loss of assets, and includes self neglect;

"representation agreement" means an agreement or other document registered under the Representation Agreement Act;

"representative" means a person authorized by a representation agreement to make decisions on behalf of another;

"self-neglect" means any failure of an adult to take care of himself or herself that causes, or is reasonably likely to cause within a short period of time, serious physical or mental harm or substantial damage to or loss of assets, and includes

(a) living in grossly unsanitary conditions,

(b) suffering from an untreated illness, disease or injury,

(c) suffering from malnutrition to such an extent that, without intervention, the adult's physical or mental health is likely to be severely impaired,

(d) creating a hazardous situation that will likely cause serious physical harm to the adult or others or cause substantial damage to or loss of assets, and

(e) suffering from an illness, disease or injury that results in the adult dealing with his or her assets in a manner that is likely to cause substantial damage to or loss of the assets;

"spouse" means a person who

(a) is married to another person and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living with another person in a marriage-like relationship and, for the purposes of this Act, the marriage or marriage-like relationship may be between members of the same sex.

Guiding principles

2 This Act is to be administered and interpreted in accordance with the following principles:

(a) all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters;

(b) all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their assets;

(c) the court should not be asked to appoint, and should not appoint, decision makers or guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered.

 
PART 2 -- DECISION MAKERS, GUARDIANS AND MONITORS

 
Division 1 -- Appointment Procedure

Presumption of capability

3 (1) Every adult is presumed to be capable of making decisions about personal care, health care, legal matters or about the adult's financial affairs, business or assets until the contrary is demonstrated.

(2) An adult's way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about anything referred to in subsection (1).

Review and assessment

4 (1) A person may notify the Public Trustee if the person has information indicating that an adult needs someone

(a) to assist the adult in making decisions about personal care, health care or legal matters or about the adult's financial affairs, business or assets, or

(b) to make any of those decisions on behalf of the adult.

(2) If, after making preliminary inquiries, the Public Trustee believes that the adult needs to make a decision referred to in subsection (1) (a), the Public Trustee may request a designated agency to review

(a) whether the adult needs to make the decision, and

(b) if so, whether the need can be met by providing personal support and other kinds of support services and assistance, instead of by applying to the court for the appointment of a decision maker or guardian.

(3) If the review confirms that the adult needs to make the decision and establishes that the need cannot be met without applying to the court for the appointment of a decision maker or guardian, the Public Trustee may request a designated agency to assess

(a) whether the adult is incapable of making the decision, and

(b) if so, whether the need can be met by applying for the appointment of a decision maker rather than a guardian.

(4) The designated agency must not proceed with a review under subsection (2) or an assessment under subsection (3) unless

(a) the adult agrees,

(b) a person chosen under subsection (6) agrees, or

(c) the court grants permission under subsection (11).

(5) A person from the designated agency who asks an adult to agree to a review or assessment

(a) must communicate with the adult in a manner appropriate to the adult's skills and abilities, and

(b) may allow the adult's spouse, or any relatives or friends of the adult who offer their assistance, to help the adult to understand or to demonstrate an understanding of the things being requested.

(6) If the adult decides not to agree to a review or assessment and is apparently incapable of making that decision, the person asking the adult to agree may choose the first, in listed order, of the following who is available and qualifies under subsection (7):

(a) a representative authorized by the adult to agree to the review or assessment;

(b) the adult's spouse;

(c) the adult's child;

(d) the adult's parent;

(e) the adult's brother or sister;

(f) anyone else related by birth or adoption to the adult.

(7) To qualify to agree to a review or assessment 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, and

(d) be capable of making the decision to agree.

(8) A person chosen from the list in subsection (6) must act in the adult's best interests.

(9) The Public Trustee may apply to the court for permission for the designated agency to proceed with the review or assessment, or both,

(a) if

(i) the person chosen under subsection (6) does not agree to the review or assessment,

(ii) there is a dispute about who is to be chosen under subsection (6), or

(iii) no one who qualifies under subsections (6) and (7) is available, and

(b) if the Public Trustee believes it is in the adult's best interests to proceed.

(10) The Public Trustee must serve notice of an application under subsection (9) on

(a) the adult,

(b) any person supporting and assisting the adult,

(c) the adult's spouse or, if the adult has no spouse, the adult's nearest relative,

(d) the adult's representative,

(e) the person who notified the Public Trustee under subsection (1), and

(f) a prescribed advocacy organization.

(11) On application under subsection (9), the court may grant permission for the designated agency to proceed with the review or assessment, or both, if the court is satisfied that it is in the adult's best interests to do so.

(12) If the Public Trustee does not request a review under subsection (2) or an assessment under subsection (3), the Public Trustee must inform the person who notified the Public Trustee about the adult.

Review and assessment reports

5 (1) On completing a review under section 4 (2), a designated agency must prepare a report on its findings.

(2) On completing an assessment under section 4 (3), a designated agency must prepare a report on its findings and must include in the report

(a) the types of decisions, if any, that the adult is apparently incapable of making and the degree of the adult's incapability,

(b) the names of one or more persons who are eligible and willing to be decision makers, if the adult's needs can be met by the appointment of a decision maker,

(c) the names of one or more persons who are eligible and willing to be guardians, if the adult's needs cannot be met by the appointment of a decision maker, and

(d) the adult's wishes, if known.

(3) A designated agency that prepares a report under this section must give a copy to

(a) the adult,

(b) the Public Trustee, and

(c) any person named in the report as being eligible and willing to be a decision maker or guardian.

Application for appointment of decision maker or guardian

6 (1) Any person may apply to the court for the appointment of

(a) an associate decision maker to support and assist the adult in making decisions,

(b) a substitute decision maker to make decisions on the adult's behalf during the period and about the matters specified in the application, or

(c) a guardian to make decisions on the adult's behalf and to care for, assist and protect the adult during the period specified in the application.

(2) An application may be made under subsection (1) for an order appointing a decision maker or guardian for a person who is 18 years of age but the order is not effective until the person reaches 19 years of age.

Who can be appointed

7 (1) The following are eligible to be appointed as the adult's decision maker or guardian:

(a) an individual who

(i) is 19 years of age or more,

(ii) does not provide personal care or health care services to the adult for remuneration,

(iii) does not have a conflict of interest with the adult, and

(iv) agrees to comply with the duties of a decision maker or guardian;

(b) for decisions about the adult's financial affairs, business or assets, a credit union, trust company or extraprovincial trust corporation authorized to do trust business under the Financial Institutions Act;

(c) the Public Trustee.

(2) A person who, on the death of the adult, will be or might a beneficiary of the adult's estate is not, for that reason, disqualified by subsection (1) (a) (iii) from acting as the adult's decision maker or guardian.

Documents to be filed and served

8 (1) The application for the appointment of a decision maker or guardian must be filed with the court and be accompanied by

(a) a needs report prepared under section 5 (1),

(b) an assessment report prepared under section 5 (2),

(c) a report of the Public Trustee,

(d) a support and assistance plan prepared in the prescribed form by each person proposed in the application as decision maker or guardian, and

(e) any representation agreement made by the adult.

(2) A copy of the application and the accompanying reports and plan must be served, within 72 hours after the filing of the application, on the following:

(a) the adult who is the subject of the application;

(b) the adult's spouse or, if the adult has no spouse, the person living in Canada, or in a state of the United States adjoining British Columbia, who is

(i) the adult's nearest relative, or

(ii) if that person is the applicant, the next nearest relative;

(c) the proposed decision maker or guardian for the adult;

(d) the person in charge of any hospital or care facility where the adult resides;

(e) the Public Trustee;

(f) a prescribed advocacy organization;

(g) any person acting as the adult's representative under a representation agreement;

(h) any person chosen under section 16 of the Health Care (Consent) and Care Facility (Admission) Act, or authorized under section 22 of that Act, to make a decision for the adult;

(i) any other person that the court may direct.

The hearing

9 (1) The following may attend the hearing of the application and make representations:

(a) any person served under section 8 (2);

(b) anyone who is supporting and assisting the adult who is the subject of the application;

(c) any other person who wishes to make representations and whom the court agrees to hear.

(2) The court must consider the information in the reports and in any support and assistance plan filed with the application.

(3) The court may require a person proposed as decision maker or guardian to attend and answer questions to enable the court to determine whether the person should be appointed.

(4) It is up to the applicant to prove, on the balance of probabilities, that the adult who is the subject of the application needs a decision maker or guardian.

Appointment of decision makers and guardians

10 (1) The court may make an order appointing a decision maker or guardian for the adult if the court is satisfied that the adult

(a) needs to make one or more decisions about personal care, health care or legal matters or about the adult's financial affairs, business or assets,

(b) is incapable of making those decisions without support and assistance, and

(c) needs, and will benefit from, the support and assistance of a decision maker or the support, assistance and protection of a guardian.

(2) The court may appoint as the adult's decision maker or guardian a person who

(a) is eligible under section 7, and

(b) is, in the opinion of the court, suitable to be the adult's decision maker or guardian.

(3) When selecting a decision maker or guardian for the adult, the court must consider any wishes the adult expressed orally or in writing when the adult was capable of deciding who should act as decision maker or guardian.

(4) The court may appoint for the adult

(a) one or more decision makers, or

(b) one or more guardians.

(5) If more than one decision maker or guardian is appointed, the court must

(a) assign a specific area of authority to each decision maker or guardian,

(b) name the one who is to be the principal decision maker or principal guardian and the spokesperson for the decision makers or guardians, and

(c) specify a method for resolving any disputes between or among the decision makers or guardians.

(6) The court may order a person appointed under this section or section 11 to give security in the amount the court directs in the form of a bond that is in the name of, is approved by and is filed with the Public Trustee.

(7) If the court makes an order under this section or section 11, the applicant must serve a copy of the order on the persons who were served under section 8 (2) with the application.

Appointment of alternate decision makers and guardians

11 (1) On appointing or reviewing the order appointing a decision maker or guardian, the court may appoint as alternate decision maker or alternate guardian any person who qualifies under section 10 (2).

(2) When selecting an alternate decision maker or alternate guardian for the adult, the court must consider any wishes the adult expressed orally or in writing when the adult was capable of deciding who should act as alternate decision maker or alternate guardian.

(3) If the court appoints an alternate decision maker or alternate guardian, the court must specify

(a) the circumstances in which the alternate decision maker or alternate guardian is authorized to act in place of the decision maker or guardian, and

(b) any conditions subject to which the alternate decision maker or alternate guardian is authorized to act in place of the decision maker or guardian.

Appointment of monitors

12 (1) On appointing or reviewing the order appointing a decision maker or guardian for the adult, the court may appoint one or more monitors for the adult, even if the adult's decision maker or guardian is the Public Trustee.

(2) The court may appoint as monitor any person who qualifies under section 10 (2).

(3) When selecting a monitor, the court must consider any wishes the adult expressed orally or in writing when the adult was capable of deciding who should act as monitor.

(4) If more than one monitor is appointed, the court must assign a specific area of responsibility to each monitor.

Appointment of temporary guardian in emergency

13 (1) Any person may apply to the court for an order appointing a temporary guardian of an adult's financial affairs, business or assets if the applicant has reason to believe that

(a) the adult is incapable of making decisions about his or her financial affairs, business or assets, and

(b) an order is necessary to protect the adult's financial affairs, business or assets from damage or loss.

(2) The applicant need not file the documents required under section 8 (1).

(3) The applicant must serve a copy of the application on the Public Trustee, but need not serve a copy on any other person.

(4) The court may appoint a temporary guardian if the court is satisfied that

(a) the conditions set out in subsection (1) exist, and

(b) it would not be in the best interests of the adult to wait until an application is made under section 8.

(5) A temporary guardian has, for a period of 21 days, authority to do anything that is necessary to preserve and protect the adult's financial affairs, business or assets from damage or loss, including authority

(a) to instruct any savings or financial institution where the adult has an account that no funds are to be withdrawn from the account until further notice,

(b) to direct any source of the adult's income to send the income to an account that is the subject of an instruction under paragraph (a), and

(c) to halt any disposition of the adult's real or personal property or to direct that the proceeds be paid into court.

Effect of appointment on power of attorney or representation agreement

14 (1) A power of attorney given by an adult becomes void when the court appoints a decision maker or guardian for the adult, whether or not the power of attorney is registered under the Representation Agreement Act.

(2) Unless the court orders otherwise, a representation agreement made by an adult becomes void when a decision maker or guardian is appointed for the adult.

 
Division 2 -- Powers, Duties and Liability

General rule -- Authority of decision makers and guardians to be limited

15 If the court makes an order appointing a decision maker or guardian, the court may give the decision maker or guardian only the authority that

(a) is necessary to make, or assist in making, decisions about the adult's personal care, health care or legal matters or the adult's financial affairs, business or assets,

(b) will result in the most effective, but the least restrictive and intrusive, form of assistance and support for the adult, and

(c) in the case of a guardian, is required to provide the care, assistance and protection necessary to meet the adult's needs.

Contents of order appointing an associate decision maker

16 If the court makes an order appointing an associate decision maker, the court

(a) must specify the types of decisions for which the associate decision maker must provide assistance and support, including, for example, decisions about anything referred to in section 19,

(b) may specify the types of decisions and activities for which the associate decision maker may provide assistance and support,

(c) may specify the nature of the assistance and support that the associate decision maker must provide,

(d) must specify

(i) the period or periods of time during which the associate decision maker may assist and support the adult, and

(ii) the date the order terminates,

(e) must specify

(i) a date, not later than 3 years after the date of the order, before which an application must be made for a review of the order appointing the associate decision maker,

(ii) the name of the person who must apply to the court for the review, and

(iii) any other requirements for the review, and

(f) may include any other provisions that the court thinks are fit and in the best interests of the adult.

Contents of order appointing a substitute decision maker

17 If the court makes an order appointing a substitute decision maker, the court

(a) must specify the types of decisions that the substitute decision maker must make for the adult, including, for example, decisions about anything referred to in section 19 or 20,

(b) may specify those decisions and activities for which the substitute decision maker may provide support and assistance,

(c) may specify the nature of the assistance and support that the substitute decision maker must provide,

(d) may specify

(i) the period or periods of time during which the substitute decision maker may make decisions for, and provide assistance and support to, the adult, and

(ii) the date the order terminates,

(e) must specify

(i) a date, not later than 3 years after the date of the order, before which an application must be made for a review of the order appointing the substitute decision maker,

(ii) the name of the person who must apply to the court for the review, and

(iii) any other requirements for the review, and

(f) may include any other provisions that the court thinks are fit and in the best interests of the adult.

Contents of order appointing a guardian

18 If the court makes an order appointing a guardian, the court

(a) must specify the types of decisions that the guardian must make for the adult, including, for example, decisions about anything referred to in section 19 or 20,

(b) may specify those decisions and activities for which the guardian may provide support and assistance,

(c) may specify the kind of care, assistance and protection that the guardian must provide,

(d) without limiting paragraph (c), may authorize the guardian to

(i) physically restrain, move or manage the adult, or

(ii) have the adult physically restrained, moved or managed when it is necessary in the adult's best interests to do so and despite the adult's objections,

(e) must specify

(i) a date, not later than 6 years after the date of the order, before which an application must be made for a review of the order appointing the guardian,

(ii) the name of the person who must apply to the court for the review, and

(iii) any other requirements for the review, and

(f) may include any other provisions that the court thinks are fit and in the best interests of the adult.

Examples of a decision maker's or guardian's powers

19 Without limiting section 17 or 18, the court may in an order under this Part authorize a substitute decision maker or a guardian to do one or more of the following:

(a) decide where the adult is to live, with whom the adult is to live, and for what period of time, and including whether the adult should live in a care facility;

(b) decide whether the adult should work and, if so, the type of work, for whom the adult is to work, and related matters;

(c) decide whether the adult should participate in any educational, vocational or other training and, if so, the type of training and related matters;

(d) decide whether the adult should apply for any licence, permit, approval or other authorization required by law;

(e) obtain legal services for the adult and instruct counsel to commence, continue, compromise, defend or settle any legal proceeding on the adult's behalf;

(f) decide whether or not the adult should receive health care;

(g) authorize the adult's admission to a Provincial mental health facility or psychiatric unit under the Mental Health Act and consent to professional services, care or treatment under that Act;

(h) make day-to-day decisions on behalf of the adult, including decisions about the diet and dress of the adult;

(i) make arrangements for the temporary care, education and financial support of

(i) the adult's minor children, or

(ii) any other persons who are cared for or supported by the adult;

(j) provide routine management of the adult's financial affairs and assets, including, for example,

(i) pay bills,

(ii) receive and deposit pension and other income,

(iii) purchase food, accommodation and other services necessary for personal care, and

(iv) make, in the manner provided in the Trustee Act, any investments that a trustee is authorized to make under that Act;

(k) grant or accept leases of real or personal property on behalf of the adult;

(l) carry on the adult's business.

Express authority required

20 Unless the court order expressly provides otherwise, a substitute decision maker or guardian does not have authority

(a) to give substitute consent on the adult's behalf to any type of health care prescribed under section 34

(f) of the Health Care (Consent) and Care Facility

(Admission) Act,

(b) to give substitute consent on the adult's behalf to the adoption of the adult's child,

(c) to commence divorce proceedings on the adult's behalf,

(d) to dispose of the adult's business or real property,

(e) to grant or accept a lease of real or personal property on the adult's behalf for a period longer than 3 years,

(f) to dispose of any of the adult's personal property that is worth more than a prescribed amount,

(g) to invest the adult's assets in investments that a trustee is not authorized to make under the Trustee Act, or

(h) to interfere with the adult's religious practices.

Refusal of health care

21 A substitute decision maker or guardian who has authority to refuse consent to any health care for the adult may refuse consent even if the health care is necessary to preserve the adult's life, but in that case section 19 (1) and (2) (a) of the Health Care (Consent) and Care Facility (Admission) Act applies.

Management of financial affairs, business or assets

22 (1) A substitute decision maker or guardian who has authority to make decisions about an adult's financial affairs, business or assets has power to do, on the adult's behalf, anything in respect of the financial affairs, business or assets that the adult could do if the adult were capable of making the decisions, as long as the substitute decision maker or guardian

(a) does not exceed the authority given by the court, and

(b) complies with the duties in sections 28 and 29.

(2) A person who has custody or control of any assets belonging to the adult must deliver them to the adult's substitute decision maker or guardian if the substitute decision maker or guardian has authority to make decisions about the assets and requests their delivery.

Effect of anything done by decision maker or guardian

23 Anything done by a substitute decision maker or guardian with regard to any matter in respect of which he or she is appointed decision maker or guardian for an adult is deemed for all purposes to have been done by the adult as though he or she were capable of making decisions.

Effect of failing to consult associate decision maker

24 If an adult who has an associate decision maker enters into an agreement without consulting the associate decision maker, the adult or the associate decision maker may apply to the court to have the agreement declared void.

Disposal of assets by incapable adult

25 If an adult disposes of an asset while the adult is incapable of making decisions about assets, the disposition is void against the adult unless

(a) the asset is disposed of for not less than its fair market value, and

(b) a reasonable person would not have known, at the time of the disposition, that the adult was incapable.

Power to retain services

26 (1) A decision maker or guardian may retain the services of a qualified person if they are reasonably necessary to assist the decision maker or guardian in doing anything the court has authorized the decision maker or guardian to do.

(2) However, a decision maker or guardian may not delegate any authority given in the court order.

Right of decision maker or guardian to information

27 (1) A decision maker or guardian has a right to all the information necessary to help the adult make, or to make on behalf of the adult, informed decisions about anything the court has authorized the decision maker or guardian to do.

(2) Any person who has custody or control of the information referred to in subsection (1) must disclose that information to the decision maker or guardian.

(3) This section overrides

(a) any claim of confidentiality or privilege, except a claim based on solicitor-client privilege, and

(b) any restriction, in an enactment or the common law, about the disclosure or confidentiality of information.

Duties of decision maker or guardian

28 (1) A decision maker or guardian

(a) must act honestly and in good faith,

(b) must exercise the care, diligence and skill of a reasonably prudent person,

(c) is a fiduciary, if authorized to make decisions about the adult's financial affairs, business or assets,

(d) must act within the authority granted in the court order,

(e) must act, whenever practicable, in accordance with the support and assistance plan prepared by the decision maker or guardian, and

(f) must encourage and assist the adult to

(i) care for, and make decisions about, himself or herself,

(ii) take care of, and make decisions about, his or her assets, and

(iii) participate in all decisions affecting the adult.

(2) If a conflict of interest or a potential conflict of interest arises between an adult and the adult's decision maker or guardian, the decision maker or guardian must

(a) promptly notify the adult, the adult's monitor, and the Public Trustee, and

(b) follow any instructions the Public Trustee gives about the conflict.

Duty to comply with adult's wishes, instructions or beliefs

29 (1) When helping an adult to make decisions or when making decisions about or on behalf of an adult, a decision maker or guardian must

(a) consult, to the greatest extent possible, with the adult to determine his or her current wishes, and

(b) comply with those wishes, if it is practicable to do so.

(2) If the adult's current wishes cannot be determined or it is not practicable to comply with them, the decision maker or guardian must comply with any instructions or wishes the adult expressed while he or she was capable.

(3) If the adult's instructions or expressed wishes are not known, a decision maker or guardian must act

(a) on the basis of the adult's known beliefs and values, or

(b) in the adult's best interests, if his or her beliefs and values are not known.

(4) On application by a decision maker or guardian, the court may exempt the decision maker or guardian from the duty under subsection (2) to comply with the adult's instructions or wishes, if the court considers that granting the exemption is in the best interests of the adult.

(5) Section 19 (3) of the Health Care (Consent) and Care Facility (Admission) Act applies when a decision maker or guardian makes health care decisions on behalf of an adult.

Record keeping and reporting duties of decision maker or guardian

30 (1) A substitute decision maker or guardian who is given, under section 17 or 18, authority over an adult's financial affairs, business or assets must

(a) keep accounting records,

(b) produce the accounting records for inspection and copying at the request of

(i) the adult,

(ii) the adult's monitor, or

(iii) the Public Trustee,

(c) within 6 months of being given the authority, file with the Public Trustee an inventory and account of the adult's assets and liabilities,

(d) if any asset or liability is discovered after the filing of the inventory and account, file with the Public Trustee an inventory and account of the asset or liability on its discovery,

(e) keep the adult's souvenirs and other personal effects at the disposal of the adult,

(f) keep the adult's assets separate from the substitute decision maker's or guardian's assets, and

(g) file an annual report, in the prescribed form, with the Public Trustee, and give a copy of the annual report to the person appointed as monitor under section 12.

(2) Subsection (1) (f) does not apply to assets that were jointly owned by the adult and by a substitute decision maker or guardian before the appointment of the substitute decision maker or guardian, but in that case the substitute decision maker or guardian holds the adult's interest in the assets in trust for the adult.

(3) A substitute decision maker or guardian who is given under this Act authority to make decisions about the adult's personal care or health care must

(a) file an annual report in the prescribed form with the Public Trustee, and

(b) give a copy of the annual report to the person appointed as monitor under section 12.

(4) An associate decision maker who is appointed to provide assistance and support to the adult must

(a) file an annual report in the prescribed form with the Public Trustee, and

(b) give a copy of the annual report to the person appointed as monitor under section 12.

(5) A decision maker or guardian must, when requested to do so, provide a report to the monitor or to the Public Trustee on the matters the monitor or the Public Trustee specifies.

(6) When the order appointing a decision maker or guardian terminates, the decision maker or guardian must either

(a) provide the adult with a report of the decisions made and actions taken on his or her behalf, including copies of the annual reports submitted to the Public Trustee, or

(b) if the order is terminated by the adult's death, provide the executor or administrator of the adult's estate with copies of the annual reports submitted to the Public Trustee.

Duties and powers of monitor

31 (1) A monitor must try to make sure that the adult's decision maker or guardian complies with the duties in sections 28, 29 and 30.

(2) At any reasonable time, the monitor may visit and speak with the adult who has a decision maker or guardian.

(3) Anyone having custody or control of the adult who has a decision maker or guardian must not hinder the monitor from visiting or speaking with that adult.

(4) If the monitor has reason to believe that the decision maker or guardian is not complying with the duties in section 28, 29 or 30, the monitor may

(a) require the decision maker or guardian to produce accounting records or to report to the monitor on the matters the monitor specifies, and

(b) direct the decision maker or guardian to comply with the duties in section 28, 29 or 30.

(5) If the decision maker or guardian does not comply with the monitor's direction, the monitor must promptly notify the Public Trustee.

(6) If the decision maker or guardian who does not comply with the monitor's direction is the Public Trustee, the monitor may apply to the court for directions.

Duty to keep information confidential

32 (1) A decision maker, guardian or monitor must not disclose information provided under this Act, or obtained in exercising authority as a decision maker, guardian or monitor, except for the purposes of

(a) performing the duties or exercising the authority of a decision maker, guardian or monitor, or

(b) an application to the court.

(2) Subsection (1) does not prevent the Public Trustee from fulfilling the duties, powers and functions of the head of a public body under the Freedom of Information and Protection of Privacy Act.

Payment and expenses

33 The court may order

(a) that a decision maker or guardian be remunerated, in accordance with the prescribed guidelines, from the adult's assets for acting in that capacity, and

(b) that a decision maker, guardian or monitor be reimbursed from the adult's assets for reasonable expenses properly incurred in performing the duties or exercising the authority given under this Act.

Advice and assistance for decision makers and guardians

34 (1) A decision maker or guardian who is uncertain about the nature or scope of his or her authority, or who needs advice about anything else relating to the role of decision maker or guardian, may ask the Public Trustee for guidance.

(2) On application by a decision maker or guardian, the court may give directions or interpret a provision of the order appointing the decision maker or guardian.

Liability of decision maker, guardian or monitor

35 (1) A decision maker or guardian who complies with sections 28 and 29 is not liable for the injury or death of the adult or for any loss or damage to the adult's business or assets.

(2) A decision maker or guardian who tries to the best of his or her ability to comply with the duties in section 29

(1) to (3) is not liable for the injury or death of the adult, or any loss or damage to the adult's business or assets, resulting from a breach of any of those duties if the decision maker or guardian acts in what the decision maker or guardian believes to be the adult's best interests.

(3) A decision maker or guardian is not liable for a decision made by the adult if the decision maker or guardian did not agree with the decision and advised the adult not to make it.

(4) A monitor is not liable for any act of a decision maker or guardian, or for the failure of a decision maker or guardian to act, if the monitor

(a) acts honestly and in good faith, and

(b) exercises the care, diligence and skill of a reasonably prudent person.

 
Division 3 -- Removal, Replacement and Review

Removal or replacement of decision maker, guardian or monitor

36 (1) Any person may apply to the court for the removal or replacement of a decision maker, guardian or monitor.

(2) Notice of the application must be served on

(a) the persons who were served under section 8 (2) when the decision maker, guardian or monitor was appointed, and

(b) the person who agrees to replace the decision maker, guardian or monitor.

(3) The court may remove or replace a decision maker or guardian, if the court is satisfied that the decision maker or guardian

(a) is no longer acting as decision maker or guardian,

(b) has not complied with the duties of a decision maker or guardian, or

(c) is, for any other reason, no longer a suitable decision maker or guardian.

(4) Before replacing a decision maker or guardian, the court may direct the Public Trustee to request a review under section 4 (2) or an assessment under section 4 (3).

(5) The court may remove or replace a monitor, if the monitor is no longer acting as monitor, has not complied with the duties of a monitor or is otherwise unsuitable.

(6) Sections 7 and 10 apply when the court appoints a person to replace a decision maker or guardian, and section 12 applies when the court appoints a person to replace a monitor.

Application for review of order appointing decision maker or guardian

37 (1) A decision maker or guardian must apply to the court for a review of the order appointing the decision maker or guardian if

(a) the adult's needs, circumstances or ability to make decisions has changed significantly since the order was made, and

(b) a change or cancellation of the order appears to be in the best interests of the adult.

(2) The Public Trustee must apply to the court for a review of an order appointing a decision maker or guardian if the person who is required by the order to apply for the review fails to do so.

(3) Any person may apply to the court for a review of an order appointing a decision maker or guardian if

(a) the person has information indicating that the adult's needs, circumstances or ability to make decisions has changed significantly since the order was made, or

(b) the adult, or a spokesperson for the adult, requests a review and has a substantial reason for doing so.

(4) An application for review that is made under this section or in accordance with a court order may include a request that the order

(a) remain unchanged,

(b) be changed in a specified way,

(c) be renewed for a specified period, with or without change, or

(d) be cancelled.

(5) A copy of the application must be served on

(a) the persons who were served under section 8 (2) with the original application for the appointment of a decision maker or guardian,

(b) the monitor appointed for the decision maker or guardian,

(c) the Public Trustee, and

(d) any other person the court directs be served.

(6) Anyone who is served with a copy of the application may file a notice of objection with the court within 30 days after being served.

(7) A person who files a notice of objection must serve a copy on the Public Trustee within the time limit in subsection (6).

(8) The Public Trustee must request a designated agency to assess the adult's capability if the Public Trustee is served with

(a) a copy of an application that requests anything other than that the order be cancelled or that the authority of the decision maker or guardian be reduced, or

(b) a notice of objection.

(9) On completing the assessment, the designated agency must

(a) prepare an assessment report,

(b) file the report with the court, and

(c) inform the parties who were served with the application that a copy of the report is available for inspection.

(10) If the applicant has requested that the order be cancelled, or be changed only by reducing the power of the decision maker or guardian, the court may, without a hearing, cancel or change the order as requested unless a notice of objection is filed under subsection (6).

Hearing of application for review

38 (1) On application under section 37, the court must hold a hearing if

(a) a notice of objection is filed under section 37 (6), or

(b) the applicant requests anything other than the cancellation of the order appointing the decision maker or guardian or a reduction in the powers of the decision maker or guardian.

(2) The persons who may attend a hearing under section 9 may attend a hearing under this section.

(3) After hearing the parties and considering the assessment report, the court may

(a) cancel, change or confirm the order appointing the decision maker or guardian,

(b) allow that order to continue in force for a term no longer than the term set by the court when the order was made, or

(c) make any other order that the court thinks fit and in the best interests of the adult.

(4) If the court changes the order appointing the decision maker or guardian, it may do one or more of the following:

(a) remove or replace a decision maker or guardian, an alternate decision maker or guardian, or a monitor;

(b) appoint additional decision makers, guardians, alternate decision makers or guardians, or monitors;

(c) increase or decrease the power of a decision maker or guardian;

(d) subject to the time periods specified under section 16 (d) or 17 (d), specify the date on which the order terminates;

(e) change the order in any other way that the court thinks fit and that is in the best interests of the adult.

(5) If the court changes or confirms the order appointing the decision maker or guardian, it must,

(a) subject to the date specified under section 16 (e), 17 (e) or 18 (e), set the date for the next review of the order,

(b) name the person who must apply to the court for the review, and

(c) specify any other requirements for the review.

(6) Notice of the court's decision about the review must be given to the people served with notice of the application for the review.

Termination of orders

39 (1) An order appointing a decision maker or guardian or alternate decision maker or guardian terminates

(a) on the death of the adult,

(b) on the cancellation of the order by the court, or

(c) on the date of termination specified by the court.

(2) On the death of an adult and until probate of the will or letters of administration of the adult's estate are granted and written notice of the grant is served on a person whose appointment as substitute decision maker or guardian terminated on the adult's death, that person

(a) continues to have the authority, duties and immunities that he or she would have had as substitute decision maker or guardian had the adult not died, and

(b) has the powers of an executor of the adult's will or an administrator of the adult's estate.

(3) Subsection (2) applies only if the substitute decision maker or guardian had authority to make decisions about the adult's financial affairs, business or assets.

(4) If, at the time of death, the adult had more than one substitute decision maker or more than one guardian, only the person who was the principal substitute decision maker or guardian is entitled to exercise the powers of the administrator of the adult's estate under subsection (2).

If decision maker or guardian is unable to act

40 If a decision maker or guardian dies, becomes incapable or is for any other reason unable to act and if there is no alternate decision maker or guardian who is willing and able to act, the Public Trustee may exercise the authority of the decision maker or guardian until a person is appointed under section 10.

 
Division 4 -- Legal Proceedings, Foreign Orders and Appointments

Legal proceedings

41 (1) A decision maker or guardian who is authorized under this Act to instruct a lawyer to commence, continue, defend or settle a proceeding on behalf of an adult is the adult's litigation guardian for the purposes of that proceeding, unless the court orders otherwise.

(2) If a person commences a proceeding against the adult, the person must serve notice of the proceeding on the litigation guardian and on the Public Trustee.

(3) If the litigation guardian commences or continues a proceeding on behalf of the adult or intends to settle or compromise a claim brought by, on behalf of or against the adult, the litigation guardian must serve notice of the proceeding, settlement or compromise on the Public Trustee.

(4) No settlement or compromise of a claim referred to in subsection (3) is binding without the written approval of the Public Trustee.

(5) The Public Trustee is entitled

(a) to be heard if the litigation guardian applies to the court for approval of a settlement or compromise of a claim referred to in subsection (3), and

(b) to any costs the court orders.

Orders from outside British Columbia

42 (1) In this section "foreign order" means an order that a court outside British Columbia makes and that appoints a person to carry out duties comparable to those of a decision maker or guardian.

(2) Any person may apply to the Supreme Court for an order resealing a foreign order that was made

(a) in a province or territory of Canada, or

(b) in a prescribed jurisdiction outside Canada.

(3) The Supreme Court may order the foreign order to be resealed if the applicant files with the court

(a) a copy of the foreign order bearing the seal of the court that made it or a copy of the foreign order certified by the registrar or other officer of the court that made it, and

(b) a certificate signed by the registrar or other officer of the court that made the foreign order stating that the order is unrevoked and of full effect.

(4) A foreign order that has been resealed

(a) has the same effect in British Columbia as if it were an order made under this Act appointing a decision maker or guardian,

(b) is subject in British Columbia to any condition imposed by the Supreme Court that the court may impose under this Act on an order appointing a decision maker or guardian, and

(c) is subject in British Columbia to the provisions of this Act respecting decision makers or guardians.

Appointment of persons outside British Columbia

43 (1) If an adult who is resident in another province or territory has assets in British Columbia, the Lieutenant Governor in Council may appoint as substitute decision maker or guardian for those assets the person who has, for the adult's assets in the other province or territory, duties comparable to those of a substitute decision maker or guardian under this Act.

(2) An order in council under subsection (1) is conclusive evidence that all conditions precedent to the appointment have been fulfilled.

(3) A person appointed as substitute decision maker or guardian under subsection (1),

(a) has, for the adult's assets in British Columbia, the same duties, powers, functions, privileges and immunities as those of a substitute decision maker or guardian appointed by the court under this Act, and

(b) is subject in British Columbia to the provisions of this Act respecting substitute decision makers or guardians.

(4) Anything done by a person appointed by order in council under this section is binding in all courts and land title offices as if it were done by a substitute decision maker or guardian appointed by the court.

[See the Court of Appeal Act for appeals from orders made by the Supreme Court under this Part.]

 
PART 3 -- SUPPORT AND ASSISTANCE FOR ABUSED AND NEGLECTED ADULTS

Purpose of this Part

44 The purpose of this Part is to provide for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of

(a) physical restraint,

(b) a physical handicap that limits their ability to seek help, or

(c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect.

Application of this Part

45 (1) This Part applies whether an adult is abused or neglected in a public place, in the adult's home, a relative's home, a care facility or any other place except a correctional centre.

(2) This Part does not

(a) override the rights in section 4 of the Health Care (Consent) and Care Facility (Admission) Act, or

(b) prevent an adult's representative, decision maker or guardian from refusing health care for the adult in accordance with wishes the adult expressed while capable, even if the refusal will result in the adult's death.

Reporting abuse or neglect

46 (1) Anyone who has information indicating that an adult

(a) is abused or neglected, and

(b) is unable to stop the abuse or neglect for any of the reasons mentioned in section 44, may report the circumstances to a designated agency.

(2) A person must not disclose or be compelled to disclose the identity of a person who makes a report under this section.

(3) No action for damages may be brought against a person for making a report under this section or for assisting in an investigation under this Part, unless the person made the report falsely and maliciously.

(4) A person must not

(a) refuse to employ or refuse to continue to employ a person,

(b) threaten dismissal or otherwise threaten a person,

(c) discriminate against a person with respect to employment or a term or condition of employment or membership in a profession or trade union, or

(d) intimidate, coerce, discipline or impose a pecuniary or other penalty on a person because the person makes a report or assists in an investigation under this Part.

(5) In this section "discipline" includes

(a) a refusal to issue or renew a licence or certificate to practise a profession or trade, and

(b) a denial or cancellation of permission to practise in a hospital or a refusal to renew that permission.

Determining if the adult needs support and assistance

47 (1) A designated agency must determine whether an adult needs support and assistance if the agency

(a) receives a report under section 46,

(b) has reason to believe that an adult is abused or neglected, or

(c) receives a report that the adult's representative, decision maker, guardian or monitor has been hindered from visiting or speaking with the adult.

(2) If the designated agency determines that the adult does not need support and assistance, the designated agency

(a) must take no further action, and

(b) may advise the Public Trustee.

(3) If the designated agency determines that the adult needs support and assistance, the designated agency may do one or more of the following:

(a) refer the adult to available health care, social, legal, accommodation or other services;

(b) assist the adult in obtaining those services;

(c) inform the Public Trustee;

(d) investigate to determine if the adult is abused or neglected and is unable, for any of the reasons mentioned in section 44, to stop the abuse or neglect.

Power to investigate

48 (1) In conducting an investigation described in section 47 (3) (d), a designated agency must make every reasonable effort to interview the adult.

(2) In addition, the designated agency may

(a) interview the adult's spouse, the adult's near relatives, the adult's friends or anyone else who may assist in the investigation, and

(b) obtain any information that the circumstances require, including a report from

(i) a health care provider who has examined the adult,

(ii) any agency that provides or has provided health or social services to the adult, and

(iii) any person that manages the adult's financial affairs, business or assets.

(3) Section 62 applies to information referred to in subsection (2) (b).

Power to enter to investigate

49 (1) A designated agency that is conducting an investigation described in section 47 (3) (d) may apply to the court for an order under subsection (2) if someone from the designated agency

(a) believes it is necessary to enter any premises in order to interview the adult, and

(b) is denied entry to the premises by anyone, including the adult.

(2) On application under subsection (1), the court may make an order authorizing either or both of the following:

(a) someone from the designated agency to enter the premises and interview the adult;

(b) a health care provider, as defined in the Health Care

(Consent) and Care Facility (Admission) Act, to enter the premises to examine the adult to determine whether health care should be provided.

(3) If an application for a court order will result in a delay that could result in harm to the adult, a justice of the peace may issue a warrant authorizing someone from the designated agency to enter the premises and interview the adult.

(4) The court may only make an order under subsection (2), and a justice of the peace may only issue a warrant under subsection (3), if there is reason to believe that the adult

(a) is abused or neglected, and

(b) is, for any of the reasons mentioned in section 44, unable to stop the abuse or neglect.

Duty to report offence

50 If a designated agency has reason to believe that a criminal offence has been committed against an adult about whom a report is made under section 46, the designated agency must report the facts to the police.

Outcome of investigation

51 (1) After conducting an investigation described in section 47 (3) (d), the designated agency may do one or more of the following:

(a) take no further action;

(b) refer the adult to available health care, social, legal, accommodation or other services;

(c) report the case to the Public Trustee or another agency;

(d) assist the adult in obtaining a representative;

(e) apply to the court for an interim order requiring a person

(i) to stop residing at and stay away from the premises where the adult lives, unless the person is the owner or lessee of the premises,

(ii) not to visit, communicate with, harass or interfere with the adult,

(iii) not to have any contact or association with the adult or the adult's assets, business or financial affairs, or

(iv) to comply with any other restriction of relations with the adult, for a period of up to 30 days;

(f) apply to the court for an order under Part 4 of the Family Relations Act for the adult's maintenance;

(g) prepare a support and assistance plan that specifies any services needed by the adult, including health care, accommodation, social, legal or financial services.

(2) Within 72 hours after an application is filed with the court for an interim order described in subsection (1) (e), the designated agency must serve a copy of the application on the adult and on the person against whom the order is sought.

(3) On application under subsection (1) (e), the court may make an interim order described in that subsection if the designated agency establishes that there is reason to believe

(a) the person has abused the adult, and

(b) the adult is unable, for any of the reasons mentioned in section 44 (c), to stop the abuse.

Adult's involvement in decision making

52 The designated agency must involve the adult, to the greatest extent possible, in decisions about how to

(a) stop the abuse or neglect, and

(b) provide the support and assistance necessary to prevent abuse or neglect in the future.

Support and assistance plan

53 (1) A designated agency that prepares a support and assistance plan for an adult must explain the plan and the proposed services to the adult.

(2) If health care services or admission to a care facility is proposed in the support and assistance plan, the designated agency must ensure that the Health Care (Consent) and Care Facility (Admission) Act is complied with.

(3) When explaining the support and assistance plan to the adult, the designated agency

(a) must communicate with the adult in a manner appropriate to the adult's skills and abilities, and

(b) may allow any relatives or friends who accompany the adult or who offer their assistance, to help the adult to understand or demonstrate an understanding of the support and assistance plan.

(4) If the adult decides not to accept the services proposed in the support and assistance plan, they must not be provided except under section 56 (3).

(5) If the adult decides not to accept the services proposed in the support and assistance plan and the adult appears to be incapable of making that decision, the designated agency may ask the Public Trustee to arrange for an assessment of whether the adult is incapable.

Application for support and assistance orders

54 (1) A designated agency that prepares a support and assistance plan may apply to the court for an order authorizing the provision of services to the adult if the report of the assessment under section 53 (5) is that the adult is incapable of deciding not to accept the services proposed in the plan.

(2) Within 72 hours after the application is filed with the court, the designated agency must serve a copy of the application on

(a) the adult who is the subject of the application,

(b) the adult's spouse or, if the adult has no spouse, the person living in Canada who is the adult's nearest relative,

(c) the person in charge of any hospital, facility or residence where the adult may be residing or receiving care,

(d) the Public Trustee,

(e) a prescribed advocacy organization,

(f) the adult's representative, decision maker or guardian,

(g) any person chosen under section 16 of the Health Care (Consent) and Care Facility (Admission) Act to make a decision for the adult,

(h) any person against whom an order is sought under section 56 (3), and

(i) any other person that the court may direct.

(3) The application must be accompanied by

(a) a support and assistance plan that is prepared by the designated agency and includes a statement of the adult's wishes if known, and

(b) a report of the assessment under section 53 (5).

The hearing

55 (1) Any of the following are entitled to be heard at the hearing of the application for the provision of services to the adult:

(a) the adult;

(b) any person served under section 54 (2);

(c) any person supporting and assisting the adult who is the subject of the application;

(d) any person from the designated agency;

(e) any other person whom the court agrees to hear.

(2) It is up to the designated agency to prove on the balance of probabilities, that the adult who is the subject of the application needs and would benefit from the services proposed in the support and assistance plan.

Support and assistance orders

56 (1) On hearing the application for the provision of services to the adult, the court must consider whether or not the adult

(a) is abused or neglected,

(b) is unable to stop the abuse or neglect because of an illness, disease, injury or other condition that affects his or her ability to make decisions about the abuse or neglect, and

(c) needs and would benefit from the services proposed in the support and assistance plan.

(2) When considering the things referred to in subsection (1), the court must take into account the information in the documents mentioned in section 54 (3).

(3) If the court is satisfied about the matters set out in subsection (1), the court may

(a) make an order for the provision of support and assistance to the adult without his or her consent,

(b) make an order under Part 4 of the Family Relations Act for the provision of maintenance for the adult,

(c) order a person the court finds has abused the adult

(i) to stop residing at and stay away from the premises where the adult lives, unless the person is the owner or lessee of the premises,

(ii) not to visit, communicate with, harass or interfere with the adult,

(iii) not to have any contact or association with the adult or the adult's assets, business or financial affairs, or

(iv) to comply with any other restriction of relations with the adult,

(d) order a person the court finds has abused or neglected the adult to pay for, or contribute towards, the adult's maintenance or services to be provided for the adult, or

(e) make any other order the court thinks is appropriate and in the best interests of the adult.

(4) In an order under subsection (3) (a), the court must specify the kinds of support and assistance that are to be provided for the adult, including any of the following:

(a) admission to an available care facility, hospital or other facility for a specified period of up to 6 months;

(b) the provision of available health care;

(c) the provision of available social, recreational, educational, vocational or other similar services;

(d) supervised residence in a care home, the adult's home or some other person's home, for a specified period of up to 6 months;

(e) the provision, for a specified period of up to 6 months, of available services to ensure that the adult's financial affairs, business or assets are properly managed and protected, including any services that may be offered by the Public Trustee.

(5) In an order made under this section, the court must choose the most effective, but the least restrictive and intrusive, way of providing support and assistance.

(6) If an order is made under this section, the designated agency must serve a copy of the order on the persons who were served with the application under section 54 (2).

(7) An order made under this section terminates 6 months after it is made or on an earlier date specified by the court.

Review of support and assistance orders

57 (1) A designated agency that obtained a support and assistance order under section 56 (3) (a) must review the need for the order if

(a) the designated agency has reason to believe that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly since the order was made, or

(b) the adult, or a spokesperson for the adult, requests a review and has a substantial reason for doing so.

(2) If the review under subsection (1) demonstrates that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly, the designated agency must apply to the court to have the order changed or cancelled.

(3) A designated agency that obtains a support and assistance order under section 56 (3) (a) may do either or both of the following:

(a) review the need for the order before it terminates;

(b) apply to the court for a renewal of the order.

(4) On application under subsection (2) or (3), the court may

(a) change or cancel the order if the court is satisfied that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly, or

(b) renew the order for a further period of up to 6 months if the court is satisfied that the adult still needs the support and assistance provided under section 56 (3) (a).

(5) A support and assistance order under section 56 (3) (a) may be renewed only once.

Review of orders preventing contact

58 (1) A person against whom an order is made under section 56 (3) (c) may apply to the court to change or cancel the order.

(2) On application under subsection (1), the court may change or cancel the order or make any other order it considers to be in the best interests of the adult who has been found to be abused or neglected.

Emergency assistance

59 (1) A person from a designated agency may do anything referred to in subsection (2) without the adult's agreement if

(a) the adult is apparently abused or neglected,

(b) it is necessary, in the opinion of the person from the designated agency, to act without delay in order to

(i) preserve the adult's life,

(ii) prevent serious physical or mental harm to the adult, or

(iii) protect the adult's assets from significant damage or loss, and

(c) the adult is apparently incapable of giving or refusing consent.

(2) In the circumstances described in subsection (1), the designated agency may do one or more of the following:

(a) enter, without a court order or a warrant, any premises where the adult may be located and use any reasonable force that may be necessary in the circumstances;

(b) remove the adult from the premises and convey him or her to a safe place;

(c) provide the adult with emergency health care;

(d) inform the Public Trustee that the adult's financial affairs, business or assets need immediate protection;

(e) take any other emergency measure that is necessary to protect the adult from harm.

(3) After providing the adult with the assistance and services mentioned in subsection (2), the designated agency may conduct investigations under sections 48 and 49.

Appeal from Provincial Court decision

60 (1) A party may appeal to the Supreme Court from an order made by the Provincial Court under this Part.

(2) The time limit for bringing an appeal under subsection (1) is 40 days, beginning on the day after the order is made by the Provincial Court.

(3) An appeal is brought by

(a) filing a notice of appeal in a registry of the Supreme Court, and

(b) serving a copy of the notice of appeal on the parties to the proceeding in which the order of the Provincial Court was made, unless a judge of the Supreme Court orders otherwise.

(4) The Rules of Court apply to an appeal under subsection (1) to the extent that they are consistent with this section.

(5) The appeal suspends the effect of the decision under appeal.

(6) After hearing the appeal, the Supreme Court may do one or more of the following:

(a) confirm or rescind the order of the Provincial Court;

(b) make any order that the Provincial Court could have made;

(c) direct the Provincial Court to conduct a new hearing.

(7) On application, the Supreme Court may extend the time limit for bringing an appeal.

 
PART 4 -- ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS

Designated agencies and organization of community agencies

61 The Public Trustee may

(a) designate, by regulation, as agencies for the purposes of Part 2 or 3 any public body, organization or person,

(b) organize networks of public bodies, organizations or persons for the provision of support and assistance to abused or neglected adults,

(c) establish an agency to assist in planning or developing a network of public bodies, organizations or persons and in training staff, and

(d) research the most effective ways of providing community and other services to carry out the purposes of this Act.

Right of designated agency and Public Trustee to information and duty to ensure confidentiality

62 (1) A designated agency and the Public Trustee have the right to all the information necessary to enable them to perform their duties, powers and functions under this Act.

(2) Any person who has custody or control of information that a designated agency or the Public Trustee is entitled to under subsection (1) must disclose that information to the designated agency or the Public Trustee.

(3) A designated agency must not disclose information obtained under this Act except for the purposes of performing the duties, powers or functions of the designated agency under this Act.

(4) The Public Trustee must not disclose information obtained under this Act except for the purposes of performing the duties, powers or functions of the Public Trustee.

Regulations

63 The Lieutenant Governor may make regulations, including regulations

(a) governing reviews under section 4 (2) and assessments under sections 4 (3) and 53 (5),

(b) prescribing advocacy organizations for the purposes of sections 4 (10) (e), 8 (2) (f) and 54 (2) (e),

(c) prescribing amounts for the purpose of section 20 (f),

(d) prescribing guidelines for the remuneration of decision makers and guardians under section 33,

(e) prescribing jurisdictions for the purposes of section 42 (resealing foreign orders), and

(f) to do anything required to effect or assist the operation of this Act.

Offences

64 (1) A person who

(a) contravenes section 46 (4),

(b) obstructs or hinders a person who is conducting an investigation under section 48 or 49, or

(c) contravenes an order made under section 56 (3) (c), commits an offence.

(2) Section 5 of the Offence Act does not apply to this Act or the regulations.

Transition from the Patients Property Act

65 (1) If an adult who is a patient within the meaning of paragraph (b) of the definition of "patient" in section 1 of the Patients Property Act has, at the time that section is repealed, a committee with power and authority over the adult's person and the adult's affairs

(a) the person who until the repeal of that section was the committee is deemed to have been appointed under this Act as guardian with the same powers as the committee,

(b) the order appointing the committee is deemed to have been made under this Act and a reference in the order to the committee or the patient is deemed for the purposes of this Act to be a reference to the guardian or the adult respectively, and

(c) the person deemed to be the guardian must apply to the court within 6 years after the repeal of that section for a review of the order.

(2) If an adult who is a patient within the meaning of paragraph (b) of the definition of "patient" in section 1 of the Patients Property Act has, at the time that section is repealed, a committee with power and authority over either the adult's person or the adult's affairs

(a) the person who until the repeal of that section was the committee is deemed to have been appointed under this Act as substitute decision maker with the same powers as the committee,

(b) the order appointing the committee is deemed to have been made under this Act and a reference in the order to the committee or the patient is deemed for the purposes of this Act to be a reference to the substitute decision maker or the adult respectively, and

(c) the person deemed to be the substitute decision maker must apply to the court within 3 years after the repeal of that section for a review of the order.

(3) If an adult is a patient within the meaning of paragraph

(a) of the definition of "patient" in section 1 of the Patients Property Act at the time that section is repealed,

(a) the Public Trustee is deemed to have been appointed under this Act as substitute decision maker with power

(i) subject to section 20 (c) of this Act, to obtain legal services for the adult and instruct counsel to commence, continue, compromise, defend or settle any legal proceeding on the adult's behalf, and

(ii) to manage the adult's financial affairs, business and assets to the extent specified in section 19 (d), (h), (i) and (j) of this Act,

(b) the appointment of the Public Trustee is deemed to have been made under this Act and a reference to the patient is deemed for the purposes of this Act to be a reference to the adult, and

(c) the Public Trustee must

(i) assess the need for the appointment within 5 years after the repeal of that section, and

(ii) after completing the assessment, apply to the court under section 36 of this Act.

 
Consequential Amendments

 
Assessment Act

66 Section 1 (1) of the Assessment Act, R.S.B.C. 1979, c. 21, is amended in the definition of "trustee" by striking out "committee," and substituting "substitute decision maker under the Adult Guardianship Act,".

 
Community Care Facility Act

67 Section 12 (2) (h) of the Community Care Facility Act, R.S.B.C. 1979, c. 57, is amended by striking out "or committee of the estate" and substituting "or decision maker or guardian under the Adult Guardianship Act".

 
Company Act

68 Sections 60 (1), 61, 63 (a) and 64 of the Company Act, R.S.B.C. 1979, c. 59, are amended by striking out "committee," and substituting "substitute decision maker or guardian under the Adult Guardianship Act,".

 
Company Clauses Act

69 Section 114 (1) of the Company Clauses Act, R.S.B.C. 1979, c. 60, is amended by striking out "who is mentally disordered may vote by his committee," and substituting "who is incapable of making decisions about voting may vote by the shareholder's substitute decision maker or guardian under the Adult Guardianship Act,".


Court Rules Act

70 Section 1 (2) (f) of the Court Rules Act, S.B.C. 1989, c. 22, is amended by striking out "Patients Property Act" and substituting "Adult Guardianship Act".

 
Credit Union Incorporation Act

71 Section 1 (1) of the Credit Union Incorporation Act, S.B.C. 1989, c. 23, is amended in the definition of "trust business" by repealing paragraph (c) and substituting the following:

(c) substitute decision maker or guardian under the Adult Guardianship Act, or .

 
Estate Administration Act

72 Section 135 (5) of the Estate Administration Act, R.S.B.C. 1979, c. 114, is amended by striking out "committee" wherever it appears and substituting "substitute decision maker or guardian".

 
Expropriation Act

73 Section 1 of the Expropriation Act, S.B.C. 1987, c. 23, is amended by repealing paragraph (b) of the definition of "owner" and substituting the following:

(b) a substitute decision maker or guardian appointed under the Adult Guardianship Act with authority to make decisions about assets,

(b.1) a guardian of an infant, executor, administrator or trustee in whom land is vested, or .

 
Family Relations Act

74 Section 59 of the Family Relations Act, R.S.B.C. 1979, c. 121, is amended

(a) in subsection (2) by striking out "on behalf of a parent described in section 58", and

(b) by adding the following subsections:

(2.1) A designated agency, as defined in the Adult Guardianship Act, may apply for an order under this Part on behalf of a parent described in section 58 of this Act after an investigation is conducted under Part 3 of that Act.

(2.2) A representative, substitute decision maker or guardian may apply for an order under this Part on behalf of a parent described in section 58 of this Act if the representative, substitute decision maker or guardian is authorized under the Representation Agreement Act or the Adult Guardianship Act to make decisions about the routine management of the parent's financial affairs.

 
Financial Institutions Act

75 Section 1 (1) of the Financial Institutions Act, S.B.C. 1989, c. 47, is amended by repealing paragraph (c) of the definition of "trust business" and substituting the following:

(c) substitute decision maker or guardian under the Adult Guardianship Act, or .

76 Sections 73 (1) and 73 (4) are amended by striking out "or committee" and substituting "or substitute decision maker".

 
Health Act

77 Section 69 (1) of the Health Act, R.S.B.C. 1979, c. 161, is amended by adding "or" at the end of paragraph (a) and by repealing paragraph (b).

 
Home Owner Grant Act

78 Section 6 (2) of the Home Owner Grant Act, S.B.C. 1980, c. 18, is amended by striking out "committee or" and substituting "substitute decision maker or guardian if authorized to make decisions about the applicant's financial affairs or assets or by".

 
Insurance (Motor Vehicle) Act

79 Section 31 (1) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1979, c. 204, is amended by striking out "a mentally disordered person under the Mental Health Act, who has no committee," and substituting "an adult who is incapable of making decisions about his or her financial affairs, business or assets and who has no substitute decision maker or guardian appointed under the Adult Guardianship Act to make those decisions,".

 
International Financial Business Act

80 Section 1 (1) of the International Financial Business Act, S.B.C. 1988, c. 16, is amended in the definition of "providing fiduciary services" by adding the following paragraph:

(e) as a substitute decision maker or guardian under the Adult Guardianship Act for a non-resident with respect to the non-resident's financial affairs, business or assets; .

 
International Financial Business (Tax Refund) Act

81 Section 1 (1) of the International Financial Business Act, S.B.C. 1988, c. 17, is amended in the definition of "providing fiduciary services" by adding the following paragraph:

(e) as a substitute decision maker or guardian under the Adult Guardianship Act for a non-resident with respect to the non-resident's financial affairs, business or assets; .

 
Land Title Act

82 Section 56 (3) of the Land Title Act, R.S.B.C. 1979, c. 219, is amended by striking out everything after "until" and substituting "an order is made under the Adult Guardianship Act appointing a substitute decision maker or guardian with authority to make decisions about assets".

83 Section 261 (2) is repealed and the following substituted:

(2) A substitute decision maker or guardian acting under the Adult Guardianship Act may lodge a caveat with the registrar where the substitute decision maker or guardian certifies

(a) that the substitute decision maker or guardian has been appointed under that Act to make decisions about an adult's financial affairs, business or assets, and

(b) that the adult's land is or may be endangered.

 
Limitation Act

84 Section 7 (5) (b) of the Limitation Act, R.S.B.C. 1979, c. 236, is repealed and the following substituted:

(b) "guardian" means a parent or guardian having actual care and control of a minor or means a substitute decision maker or guardian appointed under the Adult Guardianship Act.

 
Mental Health Act

85 Section 1 of the Mental Health Act, R.S.B.C. 1979, c. 256, is amended in the definition of "near relative" by striking out "a committee having custody of the person of a patient under the Patients Property Act;" and substituting "a decision maker or guardian appointed under the Adult Guardianship Act;".

86 Section 11 (1) and (2) is amended by striking out "committee" and substituting "decision maker, representative".

87 Section 25.2 is amended by striking out "Patients Property Act," and substituting "Adult Guardianship Act,".

 
Mineral Tax Act

88 Section 12 (5) of the Mineral Tax Act, S.B.C. 1989, c. 55, is amended by striking out "or committee" and substituting ", substitute decision maker or guardian".

 
Ministry of Transportation and Highways Act

89 Section 18 (2) of the Ministry of Transportation and Highways Act, R.S.B.C. 1979, c. 280, is amended by adding ", substitute decision makers" after "guardians".

 
Nurses (Registered) Act

90 Section 24.1 (2) (a) of the Nurses (Registered) Act, R.S.B.C. 1979, c. 302, is repealed and the following substituted:

(a) where a substitute decision maker or guardian has been appointed for the member under the Adult Guardianship Act, to the substitute decision maker or guardian, or .

 
Partition of Property Act

91 Section 9 of the Partition of Property Act, R.S.B.C. 1979, c. 311 is repealed and the following substituted:

Persons under disability

9 (1) In a proceeding for partition, a request for sale may be made or an undertaking to purchase given on the part of an infant, of an adult who is incapable of making decisions about his or her financial affairs, business or assets or of a person under any other disability, by

(a) the infant's next friend or guardian,

(b) the adult's substitute decision maker or guardian, if so authorized by the order appointing the substitute decision maker or guardian, or

(c) any other person authorized to act on behalf of the person under the disability.

(2) The court is not bound to comply with the request or undertaking on the part of an infant unless it appears that the sale or purchase will be for the infant's benefit.

 
Partnership Act

92 Section 38 (1) (a) of the Partnership Act, R.S.B.C. 1979, c. 312 is repealed.

 
Patients Property Act

93 The Patients Property Act, R.S.B.C. 1979, c. 313, is repealed on a date to be fixed by regulation of the Lieutenant Governor in Council.

 
Personal Property Security Act

94 Section 1 (1) of the Personal Property Security Act, S.B.C. 1989, c. 36, is amended in the definition of "creditor" by striking out ", administrator or committee of a creditor;" and substituting "or administrator of a creditor or a substitute decision maker or guardian appointed under the Adult Guardianship Act with authority to manage the creditor's financial affairs, business or assets;".

 
Public Trustee Act

95 Section 4 of the Public Trustee Act, R.S.B.C. 1979, c. 348, is amended by striking out "the Patients Property Act," and substituting "the Adult Guardianship Act,".

 
Railway Act

96 Section 40 of the Railway Act, R.S.B.C. 1979, c. 354, is amended by striking out "committees,".

 
Securities Act

97 Section 31 (2) (1) (i) of the Securities Act, S.B.C. 1985, c. 83, is amended by striking out "or committee of an estate," and substituting "or substitute decision maker or guardian appointed under the Adult Guardianship Act with authority to manage the financial affairs, business or assets of the owner of the security,".

 
Trustee Act

98 Section 90 (1) of the Trustee Act, R.S.B.C. 1979, c. 414, is amended by adding "of an infant" after "guardian" wherever it appears.

 
Workplace Act

99 Section 1 (1) of the Workplace Act, S.B.C. 1985, c. 34, is amended in the definition of "owner" by striking out "committee," and substituting "substitute decision maker,".

Commencement

100 This Act comes into force by regulation of the Lieutenant Governor in Council.


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