2001 Legislative Session: 5th Session, 36th Parliament
FIRST READING


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


HONOURABLE GRAEME BOWBRICK
ATTORNEY GENERAL AND MINISTER
 RESPONSIBLE FOR HUMAN RIGHTS


BILL 6 -- 2001

ADULT GUARDIANSHIP STATUTES AMENDMENT ACT, 2001

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

Adult Guardianship Act

1 Section 46 (1) (b) of the Adult Guardianship Act, R.S.B.C. 1996, c. 6, is repealed and the following substituted:

(b) is unable, for any of the reasons mentioned in section 44, to seek support and assistance, .

2 Sections 47 (3) (d) and 49 (4) (b) are amended by striking out "to stop the abuse or neglect." and substituting "to seek support and assistance."

3 Section 51 (3) (b) is amended by striking out "to stop the abuse." and substituting "to seek support and assistance."

4 Section 52 (a) is repealed and the following substituted:

(a) seek support and assistance, and .

5 Section 54 (2) is amended

(a) by striking out "Within 72 hours after the application is filed with the court," and substituting "At least 7 days before the date set for hearing the application,",

(b) by repealing paragraph (b) and substituting the following:

(b) the adult's spouse or, if the adult has no spouse, a near relative of the adult; , and

(c) by repealing paragraph (g).

6 Section 56 (1) (b) is amended by striking out "to stop the abuse or neglect" and substituting "to seek support and assistance".

7 Section 56 (7) is amended by striking out "under this section" and substituting "under subsection (3) (a)".

8 Section 58 (1) is amended by striking out "section 56 (3) (c)" and substituting "section 56 (3)".

9 Section 60 (5) is repealed and the following substituted:

(5) An appeal does not operate as a stay or suspend the operation of the order under appeal, unless a judge of the Supreme Court orders otherwise.

10 The following section is added in Part 3:

Protection from liability

60.1 (1) A person acting on behalf of or under the direction of a designated agency is not personally liable for anything done or omitted in good faith in the exercise or performance or the intended exercise or performance of a power, duty or function conferred under this Part on a designated agency.

(2) Subsection (1) does not absolve a designated agency or the government from vicarious liability for an act or omission for which it would be vicariously liable if this section were not in force.

11 Section 62 is amended by adding the following subsection:

(2.1) Subsections (1) and (2) override

(a) any claim of confidentiality or privilege, other than 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, other than a restriction in section 51 of the Evidence Act.

12 Section 63 (2) is amended by striking out "as follow:" and substituting "as follows:".

13 Section 64 (1) (c) is amended by striking out "section 56 (3) (c)," and substituting "section 51 (3) or 56 (3) (c),".


Financial Institutions Act

14 Section 1 (1) of the Financial Institutions Act, R.S.B.C. 1996, c. 141, is amended in the definition of "trust business"

(a) in paragraph (c) by striking out "mentally disordered person," and substituting "person with a mental disorder,", and

(b) by striking out "in paragraphs (a) to (c)" and substituting "in paragraphs (a) to (d)".


Health Care (Consent) and Care Facility (Admission) Act

15 Section 2 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, is repealed and the following substituted:

Application of this Act

2 This Act does not apply to

(a) the admission of a person to a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health Act,

(b) the provision of professional services, care or treatment to a person under the Mental Health Act, if the person is detained in a designated facility under section 22, 28, 29, 30 or 42 of that Act, and

(c) the provision of professional services, care or treatment to a person under the Mental Health Act, if the person is released on leave or transferred to an approved home under section 37 or 38 of that Act.

16 Section 17 (6) to (8) is repealed and the following substituted:

(6) A person chosen under section 16 has the right to all information and documents to which the adult is entitled and that are necessary for the substitute decision maker to make an informed decision under subsection (1) of this section.

(7) A person who has custody or control of any information or document referred to in subsection (6) must, at the substitute decision maker's request, disclose that information to the substitute decision maker or produce that document for inspection and copying by the substitute decision maker.

(8) Subsections (6) and (7) override

(a) any claim of confidentiality or privilege, other than 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, other than a restriction in section 51 of the Evidence Act.


Land Title Act

17 Section 47.1 of the Land Title Act, R.S.B.C. 1996, c. 250, is amended by adding the following subsection:

(3) In addition to certifying the matters set out in section 45 (1) or 46 (1), as applied by this section, the signature of the officer witnessing the execution of an instrument by a representative is a certification by the officer that the representative appeared before and acknowledged to the officer that

(a) the authority conferred by the representation agreement is not suspended under section 12 (8) of the Representation Agreement Act,

(b) no provision of the representation agreement is cancelled under section 28 of the Representation Agreement Act,

(c) the representation agreement has not ended for any of the reasons set out in section 29 of the Representation Agreement Act,

(d) no provision of the representation agreement affecting property is suspended or cancelled under section 19.1 of the Patients Property Act, and

(e) any changes to the representation agreement affecting the authority given to a representative under section 9 (1) (g) of the Representation Agreement Act have been filed with the registrar under this Act or a copy, certified under section 51 (4) as applied by section 51 (4.1) of this Act to be a true copy of those changes, has been so filed.

18 The heading to Part 6 is repealed and the following substituted:

Part 6 -- Powers of Attorney and Representation Agreements .

19 Section 51 is amended by adding the following subsections:

(2.1) In the case of a representation agreement signed under section 13 (4) of the Representation Agreement Act, the signature of the person signing the agreement on behalf of the adult making the agreement is deemed to be the adult's signature for the purposes of this Act.

(4.1) Subsection (4) applies to a copy of a change to a representation agreement as it applies to a copy of a representation agreement.

(6) A copy certified and filed as described in section 47.1 (3) (e) is, for the purposes of this Act, conclusive proof of the contents of a change to a representation agreement.


Notaries Act

20 Section 18 of the Notaries Act, R.S.B.C. 1996, c. 334, is amended by adding the following paragraph:

(e.1) act as a consultant under sections 9 (2) (a) (ii), 12 (1) (c), 26 (1) (c) (ii) and 29 (1.1) (b) of the Representation Agreement Act if the member qualifies as a member of a class of persons prescribed under section 42 (2) (a) of that Act; .


Patients Property Act

21 Section 10 (1) (d) of the Patients Property Act, R.S.B.C. 1996, c. 349, is repealed and the following substituted:

(d) the committee must pass the committee's accounts before the Public Guardian and Trustee at the times directed by the Public Guardian and Trustee; .


Power of Attorney Act

22 Section 2 of the Supplement to the Power of Attorney Act, R.S.B.C. 1996, c. 370, is repealed.


Property Law Act

23 The Property Law Act, R.S.B.C. 1996, c. 377, is amended by adding the following section:

Validity of sale, transfer or charge by representative to self

27.1 (1) In this section:

"representation agreement" means an agreement made under the Representation Agreement Act;

"representative" means a person named in a representation agreement as a representative or alternate representative.

(2) A sale, transfer or charge to or in favour of a representative by the representative of land owned by the adult who made a representation agreement and purporting to be made under the representation agreement is not valid unless the sale, transfer or charge is expressly authorized by that agreement.


Public Guardian and Trustee Act

24 Section 16 (2) (a) of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, is amended by striking out "in favour of the government" and substituting "in favour of the Public Guardian and Trustee".

25 Section 18 (2) is repealed and the following substituted:

(2) In addition to any powers given in another Act, in making an investigation or audit the Public Guardian and Trustee may do one or more of the following:

(a) for an investigation or audit under section 17 (1),

(i) require the trustee, attorney, representative, decision maker or guardian to produce any accounts, securities or other records, and

(ii) require a person, institution or other body having records relating to the financial affairs, business or assets of the young person or adult to produce any accounts, securities or other records

the Public Guardian and Trustee considers necessary for the investigation or audit;

(b) for an investigation under section 17 (2),

(i) require the representative, decision maker or guardian to produce any records relating to the personal care and health care decisions, and

(ii) require a person, institution or other body having records relating to the personal care or health care decisions to produce any personal care or health care records;

(c) inspect and copy any records produced under paragraph (a) or (b);

(d) for an investigation or audit under section 17 (1) or (2), require the trustee, attorney, representative, decision maker or guardian, or a monitor under a representation agreement, to provide any report, information or explanation the Public Guardian and Trustee considers necessary for the investigation or audit.

26 Section 18 (3) (a) is repealed and the following substituted:

(a) subject to section 51 (5) and (6) of the Evidence Act, must comply, and .

27 Section 28 is amended by adding the following subsection:

(3) Despite any rule of law that prohibits a trustee from delegating powers or duties or from relying on investment advice, the investments that may be authorized under subsection (2) (b) include, but are not limited to, investments in mutual funds.


Representation Agreement Act

28 Section 5 of the Representation Agreement Act, R.S.B.C. 1996, c. 405, is amended

(a) in subsection (1) by repealing paragraph (c) and substituting the following:

(c) a credit union or trust company as long as the credit union's or trust company's area of authority under the representation agreement does not include health care or personal care. , and

(b) by repealing subsection (2) and substituting the following:

(2) An adult who names more than one representative in a representation agreement may assign to each of them

(a) a different area of authority, or

(b) all or part of the same area of authority.

(3) If all or part of the same area of authority is assigned under subsection (2) (b) to 2 or more representatives, they must act unanimously in exercising that authority unless the representation agreement provides otherwise.

29 Section 7 (3) is repealed.

30 Section 9 (1) is amended by repealing paragraphs (g), (h) and (i) and substituting the following:

(g) do, on the adult's behalf, any thing that can be done by an attorney acting under a power of attorney and that is not mentioned in paragraphs (a) to (f) or in section 7 (1).

31 Section 9 (2) (b) is amended by striking out "a certificate" and substituting "a consultation certificate".

32 The following section is added:

Duration and exercise of authority

9.1 Any authority given to a representative under section 7 or 9

(a) is not terminated solely because the adult subsequently becomes incapable of making a representation agreement giving that authority to a representative,

(b) is subject to any conditions or restrictions placed on that authority in the representation agreement, and

(c) must be exercised in accordance with this Act.

33 Section 11 is repealed and the following substituted:

Mental health decisions

11 Despite sections 7 (1) (c) and 9 (1) (c), an adult may not authorize a representative to refuse consent to

(a) the adult's admission to a designated facility under section 22, 28, 29, 30 or 42 of the Mental Health Act,

(b) the provision of professional services, care or treatment under the Mental Health Act if the adult is detained in a designated facility under section 22, 28, 29, 30 or 42 of that Act, or

(c) the provision of professional services, care or treatment under the Mental Health Act if the adult is released on leave or transferred to an approved home under section 37 or 38 of that Act.

34 Section 12 is repealed and the following substituted:

Monitors

12 (1) An adult who makes a representation agreement containing a provision authorized by section 7 (1) (b) must name as monitor in that agreement an individual who meets the requirements of subsection (4) unless

(a) the representative named by the adult is the adult's spouse, the Public Guardian and Trustee, a trust company or a credit union,

(b) the adult has assigned authority under section 7 (1) (b) to 2 or more representatives and they are required to act unanimously in exercising all authority assigned under that section, or

(c) the adult consults with a person referred to in section 9 (2) (a) (i) or (ii) and that person completes a consultation certificate in the prescribed form.

(2) Failure to name a monitor in a representation agreement for which a monitor is required under subsection (1) makes a provision authorized by section 7 (1) (b) invalid.

(3) An adult who is not required under subsection (1) to name a monitor may choose to name as a monitor in a representation agreement an individual who meets the requirements of subsection (4).

(4) To be named in a representation agreement as a monitor, an individual must be at least 19 years of age and must be willing and able to perform the duties and to exercise the powers of a monitor.

(5) An individual named in a representation agreement as a monitor must complete a monitor's certificate in the prescribed form.

(6) A monitor may resign by giving written notice to the adult, each representative and each alternate representative, if any.

(7) The resignation of a monitor is effective

(a) as soon as written notice has been given to all persons entitled to notice under subsection (6), or

(b) on a later date specified in the written notice.

(8) If a monitor resigns, dies, becomes incapable or becomes for any other reason unable to act as monitor, the authority given to each representative by the representation agreement is suspended until

(a) a new monitor is appointed under section 21, or

(b) the court determines under section 21 that a monitor is not required.

(9) Subsection (8) does not apply if

(a) the monitor was chosen under subsection (3), and

(b) the representation agreement provides that the authority of each representative is not suspended in the circumstances described in subsection (8).

35 Section 13 is amended

(a) by repealing subsections (2) and (3) and substituting the following:

(1.1) For the purposes of this Act, a representation agreement is executed when the following requirements are met:

(a) the agreement is signed and witnessed in accordance with this section;

(b) all certificates required under this section and sections 5, 6, 9 and 12 are completed.

(2) A representation agreement must be signed by the adult and by each representative and each alternate representative named in the agreement.

(3) The persons referred to in subsection (2) need not be present together when they sign the representation agreement and any one or more of them may sign it in counterpart.

(3.01) Subject to subsection (3.02), the adult's signature must be witnessed by 2 witnesses each of whom must sign the representation agreement.

(3.02) No other witness is required if the adult's signature is witnessed by a person with whom the adult consulted under section 9 (2) or 12 (1) (c) and who completed a consultation certificate in the prescribed form.

(3.03) The signature of a representative or alternate representative need not be witnessed. ,

(b) in subsection (4) by striking out "and" at the end of paragraph (c) and adding the following paragraph:

(c.1) the signature of the person signing the agreement is witnessed in accordance with subsection (3.01) or (3.02) as though that signature were the adult's signature, and ,

(c) in subsection (4) (d) by striking out "the witnesses" and substituting "each witness",

(d) in subsection (5) by striking out "the signing of a representation agreement:" and substituting "the signing of a representation agreement by or on behalf of the adult:",

(e) by adding the following subsection:

(5.1) Subsection (5) (e) does not disqualify a person referred to in subsection (3.02) from witnessing a representation agreement as long as that person receives interpretative assistance to understand the type of communication used by the adult. , and

(f) in subsection (7) by striking out "section 31 (4)" and substituting "section 32 (4)".

36 Section 16 is amended

(a) in subsection (2) (a) by striking out "to the greatest extent possible," and substituting "to the extent reasonable,",

(b) in subsection (2) (b) by striking out "practicable" and substituting "reasonable",

(c) by adding the following subsection:

(2.1) Subsection (2) does not apply if

(a) a representative is acting within authority given to the representative under section 9, and

(b) the representation agreement provides that in exercising that authority the representative need only comply with any instructions or wishes the adult expressed while capable. ,

(d) by repealing subsection (3) and substituting the following:

(3) If subsection (2) applies but the adult's current wishes cannot be determined or it is not reasonable to comply with them, the representative must comply with any instructions or wishes the adult expressed while capable. ,

(e) by repealing subsection (6) and substituting the following:

(6) Subject to subsection (6.1), a representative may not delegate any authority given to the representative in the representation agreement.

(6.1) A representative may delegate to a qualified investment specialist, including a mutual fund manager, all or part of the representative's authority with respect to investment matters. , and

(f) by repealing subsections (8) and (9) and substituting the following:

(8) A representative must

(a) keep accounts and other records concerning the exercise of the representative's authority under the representation agreement, and

(b) produce the accounts and other records for inspection and copying at the request of any or all of the following:

(i) the adult;

(ii) the adult's monitor;

(iii) the Public Guardian and Trustee.

(9) A representative who is authorized to do anything referred to in section 7 (1) (b) or 9 (1) (g) must keep the adult's assets separate from the representative's assets.

(10) Unless the representation agreement provides otherwise, subsection (9) does not apply to assets that

(a) are owned by the adult and the representative as joint tenants, or

(b) have been substituted for, or derived from, assets that were owned by the adult and the representative as joint tenants.

37 Section 18 is amended

(a) by repealing subsections (1) and (2) and substituting the following:

(1) A representative of an adult has the right to all information and documents to which the adult is entitled and that relate to the representative's area of authority under the representation agreement.

(2) A person who has custody or control of any information or document referred to in subsection (1) must, at the representative's request, disclose that information to the representative or produce that document for inspection and copying by the representative. ,

(b) in subsection (3) (a) by adding ", subject to subsection (4)," after "except",

(c) in subsection (3) (b) by striking out "information." and substituting "information, except a restriction in section 51 of the Evidence Act.", and

(d) by adding the following subsection:

(4) The exception in subsection (3) (a) does not limit the right of a representative to information or documents to which the adult is entitled and that relate to a matter in respect of which the representative is litigation guardian under section 35.

38 Section 19 is amended by adding ", or anything undertaken," after "An agreement made".

39 The following section is added:

Resignation of representatives and alternate representatives

19.1 (1) A representative or alternate representative may resign by giving written notice to

(a) the adult,

(b) all other representatives and alternate representatives named in the representation agreement, and

(c) the monitor, if any.

(2) The resignation of a representative or alternate representative is effective

(a) as soon as written notice has been given to all persons entitled to notice under subsection (1), or

(b) on a later date specified in the written notice.

40 Section 20 is amended

(a) by repealing subsection (1) and substituting the following:

(1) A monitor named by or appointed for an adult must make reasonable efforts to determine whether a representative of the adult is complying with section 16. ,

(b) by repealing subsection (4) and substituting the following:

(4) If the monitor has reason to believe that a representative is not complying with section 16, the monitor

(a) may require the representative to

(i) produce accounts and other records required to be kept under this Act, and

(ii) report to the monitor on the matters specified by the monitor, and

(b) must notify the adult, the representative and all other representatives, including alternate representatives, of the monitor's reason for the belief.

(4.1) Subsection (4) (a) (i) does not limit a monitor's authority to request accounts and other records under section 16 (8). , and

(c) by repealing subsections (5) and (6) and substituting the following:

(5) If after taking steps under subsection (4) the monitor still has reason to believe the representative is not complying with section 16, the monitor must promptly inform the Public Guardian and Trustee.

41 Section 21 is repealed and the following substituted:

Replacement or removal of monitors

21 (1) On request by a representative or other interested person, the Public Guardian and Trustee may appoint a monitor to replace one named in a representation agreement or appointed under this section or section 30 (3) (g.1), if

(a) the monitor is unsuitable or is no longer able to act, or has ceased to act, as monitor, and

(b) the adult is incapable of making a new representation agreement.

(2) If the Public Guardian and Trustee declines to appoint a monitor under subsection (1) or if a representative or other interested person is dissatisfied with the Public Guardian and Trustee's decision, the court, on application by a representative or other interested person, may do one or more of the following:

(a) determine that a monitor is not required;

(b) confirm, vary or reverse the Public Guardian and Trustee's decision;

(c) make any decision that the Public Guardian and Trustee could have made in the first instance.

(3) If a monitor is appointed by the Public Guardian and Trustee or the court under this section, the Public Guardian and Trustee or the court, as the case may be, may

(a) authorize that the monitor be remunerated, out of the adult's assets, for acting as a monitor in relation to authority given to a representative under section 7 (1) (a), (b) or (d) or 9 (1) (g), and

(b) set the amount or rate of the remuneration.

(4) Subsection (3) applies even if the representation agreement does not provide for the remuneration of a monitor.

42 Section 22 is amended by striking out "information" and substituting "information or documents".

43 Section 26 (1) is repealed and the following substituted:

(1) A person named in a representation agreement as a representative, alternate representative or monitor is not entitled to be remunerated for acting as a representative or monitor except if

(a) a provision of the representation agreement expressly authorizes and sets the amount or rate of the remuneration,

(b) the provision authorizing the remuneration is not void under subsection (1.1), and

(c) one of the following conditions is met:

(i) the court, on application by the person named in the representation agreement as a representative, alternate representative or monitor, authorized that the remuneration be paid;

(ii) the adult consulted with a person referred to in section 9 (2) (a) (i) or (ii) and that person completed a consultation certificate in the prescribed form.

(1.1) A representation agreement may not authorize the remuneration of a representative, alternate representative or monitor for any decision made or action taken by the adult, representative, alternate representative or monitor under Part 2 or 4 of the Health Care (Consent) and Care Facility (Admission) Act, and any provision of a representation agreement that purports to authorize such remuneration is void to that extent.

44 Section 27 is amended

(a) in subsection (1) by repealing paragraphs (b) and (d) and substituting the following:

(b) in the case of a change, an amendment to the agreement is executed in accordance with the procedures for executing a representation agreement,

(d) in the case of a revocation, written notice of the revocation is given to

(i) each representative,

(ii) each alternate representative, and

(iii) the monitor, if any. , and

(b) by adding the following subsection:

(3.1) The revocation of a representation agreement becomes effective

(a) as soon as written notice has been given to all persons entitled to notice under subsection (1) (d), or

(b) on a later date specified in the written notice.

45 Section 28 (1) is amended by striking out "section 7 (1) (b) or 9 (1) (g) or (h)" and substituting "section 7 (1) (b) or 9 (1) (g)".

46 Section 29 is amended

(a) in subsection (1) by repealing paragraph (d) and substituting the following:

(d) if the adult who made the agreement and the adult's representative are spouses, on the termination of their marriage or marriage-like relationship; ,

(b) by adding the following subsections:

(1.1) Subsection (1) (d) does not apply if

(a) the representation agreement provides that it does not end in the event of the termination of the marriage or marriage-like relationship, as the case may be, and

(b) the adult consulted with a person referred to in section 9 (2) (a) (i) or (ii) about the provision referred to in paragraph (a) of this subsection and that person completed a consultation certificate in the prescribed form.

(1.2) For the purposes of subsections (1) (d) and (1.1), a marriage is terminated when an agreement, judgment or order referred to in section 56 of the Family Relations Act is first made in respect of the marriage. , and

(c) in subsection (2) by repealing paragraph (a) and substituting the following:

(a) more than one representative is named in the representation agreement and the agreement provides that the remaining representative or representatives may continue to act; .

47 Section 30 is amended

(a) in subsection (1) (g) by striking out "or (2)",

(b) in subsection (1) (h) (ii) by striking out "or otherwise failing to make decisions in accordance with the wishes of that adult",

(c) in subsection (1) (i) by striking out "or that is inappropriate for the adult", and

(d) in subsection (3) by adding the following paragraphs:

(g.1) appoint a monitor;

(g.2) authorize that a monitor appointed under paragraph (g.1) be remunerated, out of the adult's assets, for acting as a monitor in relation to authority given to a representative under section 7 (1) (a), (b) or (d) or 9 (1) (g) and set the amount or rate of the remuneration; .

48 Section 31 is amended by adding the following subsection:

(3) After conducting an investigation, the Public Guardian and Trustee may do anything referred to in section 30 (3) (b) to (h).

49 Section 42 is amended

(a) in subsection (2) by repealing paragraph (a) and substituting the following:

(a) for the purposes of sections 9 (2) (a) (ii), 12 (1) (c), 26 (1) (c) (ii) and 29 (1.1) (b), including regulations respecting the prerequisites for qualifying as a member of a prescribed class of persons; ,

(b) in subsection (2) by adding the following paragraphs:

(a.2) prescribing for the purposes of section 16 (8) the form in which accounts and other records are to be kept by representatives;

(a.3) respecting any notice required or authorized under this Act; , and

(c) by adding the following subsection:

(3) The Lieutenant Governor in Council may prescribe one or more forms of representation agreement, but their use is optional.

50 Sections 5 (2) (b) and (c) and (3), 16 (10), 27 (1) (d) (iv), (3) and (4) and 31 (3) of the Supplement to the Representation Agreement Act are repealed.

51 The following section is added:

Transitional -- Adult Guardianship Statutes Amendment Act, 2001

44.1 A representation agreement that

(a) was made at any time before the date on which section 35 of the Adult Guardianship Statutes Amendment Act, 2001 comes into force, and

(b) would be validly executed in accordance with the requirements of section 13 of this Act as amended by section 35 of the Adult Guardianship Statutes Amendment Act, 2001 had the agreement been executed on or after that date,

is deemed to have been validly executed as if section 35 of the Adult Guardianship Statutes Amendment Act, 2001 were in force at the time the agreement was executed.

Commencement

52 Sections 5, 7 to 9, 16 to 20, 28 to 49 and 51 come into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Notes

Adult Guardianship Act

SECTION 1: [Adult Guardianship Act, repeals and replaces section 46 (1) (b)] modifies one of the criteria to be applied in determining whether to report a suspected case of abuse or neglect to a designated agency.

SECTION 2: [Adult Guardianship Act, amends sections 47 (3) (d) and 49 (4) (b)] modifies the nature of the investigation a designated agency may conduct if it determines that an adult needs support and assistance. A parallel change is made to a provision specifying the circumstances in which a designated agency may be authorized to enter premises in the course of the investigation.

SECTION 3: [Adult Guardianship Act, amends section 51 (3) (b)] modifies a provision specifying the circumstances in which the Provincial Court may make an interim order at the request of a designated agency.

SECTION 4: [Adult Guardianship Act, repeals and replaces section 52 (a)] modifies a provision directing a designated agency to involve the adult when making decisions under Part 3 of the Act about an abused or neglected adult.

SECTION 5: [Adult Guardianship Act, amends section 54 (2)]

(a) requires designated agencies to give at least 7 days' notice of an application to the Provincial Court for a support and assistance order;

(b) in the case of an adult who has no spouse, requires notice of the application to be served on a near relative of the adult instead of on the person living in Canada who is the adult's nearest relative;

(c) repeals a requirement to serve notice of the application on any temporary substitute decision maker chosen under section 16 of the Health Care (Consent) and Care Facility (Admission) Act to make health care decisions for the adult.

SECTION 6: [Adult Guardianship Act, amends section 56 (1) (b)] modifies one of the factors the Provincial Court must consider before deciding whether to make a support and assistance order.

SECTION 7: [Adult Guardianship Act, amends section 56 (7)] limits the application of the rule about how long court orders made under section 56 remain in effect. At present, all orders under section 56 are in effect for a maximum of 6 months. The amendment removes this time limit from all except support and assistance orders.

SECTION 8: [Adult Guardianship Act, amends section 58 (1)] by changing a section reference, permits any person who is subject to a court order under section 56 (3) of the Act to apply to change or cancel the order.

SECTION 9: [Adult Guardianship Act, repeals and replaces section 60 (5)] reverses the present rule about the effect of a pending appeal on the order made by the Provincial Court.

SECTION 10: [Adult Guardianship Act, enacts section 60.1] adds a provision to protect persons acting for designated agencies from legal liability in the event of errors or omissions made in good faith.

SECTION 11: [Adult Guardianship Act, adds section 62 (2.1)] clarifies that the right to demand, and the duty to disclose, relevant information to a designated agency or the Public Guardian and Trustee is subject only to a claim of solicitor-client privilege and to section 51 of the Evidence Act.

SECTION 12: [Adult Guardianship Act, amends section 63 (2)] corrects an error.

SECTION 13: [Adult Guardianship Act, amends section 64 (1) (c)] makes contravention of an interim order under section 51 (3) of the Act an offence.


Financial Institutions Act

SECTION 14: [Financial Institutions Act, amends section 1 (1)]

(a) makes the wording consistent with wording used in other statutes;

(b) corrects a section reference.


Health Care (Consent) and Care Facility (Admission) Act

SECTION 15: [Health Care (Consent) and Care Facility (Admission) Act, re-enacts section 2] modifies the wording of the application section of the Health Care (Consent) and Care Facility (Admission) Act to refer to "designated facility" rather than "mental health facility" and "psychiatric unit". These changes result from amendments made to the Mental Health Act and parallel proposed changes to the Representation Agreement Act.

SECTION 16: [Health Care (Consent) and Care Facility (Admission) Act, repeals and replaces section 17 (6) to (8)] clarifies that a substitute decision maker has the right to information and documents necessary to make a decision under this Act, and a person who has this information or these documents has the obligation to produce the information and provide a copy of the documents. This section parallels the proposed section 62 (2.1) of the Adult Guardianship Act and proposed amendments to section 18 of the Representation Agreement Act.


Land Title Act

SECTION 17: [Land Title Act, adds section 47.1 (3)] adds a provision specifying matters certified by the signature of an officer who witnesses the execution of a document by a representative.

SECTION 18: [Land Title Act, repeals and replaces the heading to Part 6] adds a reference to representation agreements.

SECTION 19: [Land Title Act, adds section 51 (2.1), (4.1) and (6)] makes


Notaries Act

SECTION 20: [Notaries Act, adds section 18 (e.1)] clarifies that notaries may act as consultants under the Representation Agreement Act if they qualify under a regulation of the Lieutenant Governor in Council.


Patients Property Act

SECTION 21: [Patients Property Act, repeals and replaces section 10 (1) (d)] allows the Public Guardian and Trustee to set the schedule for the passing of a committee's accounts before the Public Guardian and Trustee.


Power of Attorney Act

SECTION 22: [Power of Attorney Act, repeals section 2 of Supplement] repeals an unnecessary provision.


Property Law Act

SECTION 23: [Property Law Act, enacts section 27.1] prevents a representative from converting the adult's property to the representative unless the representation agreement expressly authorizes such a transaction.


Public Guardian and Trustee Act

SECTION 24: [Public Guardian and Trustee Act, amends section 16 (2) (a)] ensures that a temporary loan made by the Public Guardian and Trustee to the account of a person whose estate is administered by the Public Guardian and Trustee is a charge in favour of the Public Guardian and Trustee instead of a charge in favour of the government.

SECTION 25: [Public Guardian and Trustee Act, repeals and replaces section 18 (2)] ensures that the Public Guardian and Trustee's authority to obtain records and other information in the course of an investigation or audit extends to records and other information relating to personal care and health care decisions of a substitute decision maker.

SECTION 26: [Public Guardian and Trustee Act, repeals and replaces section 18 (3) (a)] exempts health care information protected by section 51 (5) and (6) of the Evidence Act from requirements relating to disclosure to the Public Guardian and Trustee.

SECTION 27: [Public Guardian and Trustee Act, adds section 28 (3)] clarifies that the Lieutenant Governor in Council may authorize the Public Guardian and Trustee to invest in mutual funds and other investments involving the delegation of some investment decisions.


Representation Agreement Act

SECTION 28: [Representation Agreement Act, amends section 5]

(a) makes a change consequential to the elimination of the reference in section 9 (1) (g) of the Act to the adult's financial affairs, business or assets;

(b) clarifies the rules about how authority is assigned and exercised in cases where the adult has appointed more than one representative.

SECTION 29: [Representation Agreement Act, repeals section 7 (3)] repeals a provision authorizing the Lieutenant Governor in Council to prescribe a form of representation agreement containing certain provisions. The repeal is consequential to the addition of a more general provision authorizing the Lieutenant Governor in Council to prescribe one or more representation agreement forms.

SECTION 30: [Representation Agreement Act, amends section 9 (1)] describes, by reference to a power of attorney, the authority that an adult may give a representative and repeals provisions made superfluous by the reference to a power of attorney.

SECTION 31: [Representation Agreement Act, amends section 9 (2) (b)] makes a change consequential to the amendments to section 13 of the Act.

SECTION 32: [Representation Agreement Act, enacts section 9.1] adds a new provision clarifying that the authority given by an adult to a representative continues even though the adult becomes incapable of conferring that authority. Also, the new provision clarifies that a representative's authority is limited by any restrictions or conditions in the representation agreement.

SECTION 33: [Representation Agreement Act, re-enacts section 11] makes changes consequential to amendments made to the Mental Health Act.

SECTION 34: [Representation Agreement Act, re-enacts section 12] clarifies the rules about the appointment of monitors and provides for the resignation of monitors and for the automatic suspension of their authority in certain circumstances.

SECTION 35: [Representation Agreement Act, amends section 13]

(a) clarifies the rules concerning the execution of a representation agreement and, among other changes, allows the parties to sign separate copies of the representation agreement, dispenses with the requirement for 2 witnesses to the adult's signature in certain cases and removes the requirement that a representative's signature be witnessed;

(b) applies the rules concerning the witnessing of the adult's signature to a person who signs the representation agreement on behalf of the adult;

(c) clarifies that each witness must complete a certificate in the prescribed form;

(d) clarifies that the rules about who is disqualified from being a witness to the adult's signature apply also when the representation agreement is being signed on behalf of the adult;

(e) exempts lawyers and other persons consulted under section 9 (2) of the Act from the requirement imposed on other witnesses to understand the type of communication used by the adult, but only if the persons consulted receive interpretative assistance;

(f) corrects a section reference.

SECTION 36: [Representation Agreement Act, amends section 16]

(a) modifies the standard a representative must meet under the requirement to consult with the adult to determine his or her current wishes;

(b) modifies a representative's duty to comply with the adult's current wishes by requiring compliance where reasonable;

(c) allows the adult to instruct a representative that, in exercising authority given under section 9 of the Act, the representative is not required to comply with the adult's subsequent wishes, other than those expressed while the adult is capable of making decisions;

(d) is consequential to the new section 16 (2.1);

(e) modifies the rule prohibiting a representative from delegating authority by creating an exception relating to investment decisions;

(f) consolidates into one subsection the provisions relating to a representative's duty to keep certain records and to produce them for inspection and copying. Also, the exception to the duty to keep the representative's assets separate from the adult's assets is restated.

SECTION 37: [Representation Agreement Act, amends section 18]

(a) enables a representative to gain access to all information and documents to which the adult would be entitled;

(b) is consequential to the new section 18 (4) of the Act;

(c) makes a change consequential to the new section 18 (4) and clarifies that a representative's information rights do not extend to health care information protected by section 51 of the Evidence Act;

(d) ensures that a representative who is acting as litigation guardian for an adult has access to privileged information.

SECTION 38: [Representation Agreement Act, amends section 19] ensures that in addition to any agreements made, any thing undertaken by a representative on the adult's behalf, is binding on the adult.

SECTION 39: [Representation Agreement Act, enacts section 19.1] sets out the steps a representative or alternate representative must take in order to resign and stipulates when the resignation becomes effective.

SECTION 40: [Representation Agreement Act, amends section 20]

(a) replaces a monitor's duty to try to make sure the representative is complying with the Act with a duty to make reasonable efforts to determine whether the representative is complying with the Act;

(b) makes changes consequential to the changes to sections 16 (8) and 20 (1) of the Act and modifies the list of persons who must be notified if the monitor has reason to believe a representative is not complying with the Act;

(c) makes changes consequential to the restatement of the monitor's duties under section 20 (1) and (4) of the Act.

SECTION 41: [Representation Agreement Act, re-enacts section 21] establishes new procedures for the appointment and replacement of monitors and provides for the remuneration of monitors appointed by the Public Guardian and Trustee or by court order.

SECTION 42: [Representation Agreement Act, amends section 22] is consequential to the changes to section 18 (1) and (2) of the Act.

SECTION 43: [Representation Agreement Act, repeals and replaces section 26 (1) and adds (1.1)] specifies the circumstances in which representatives, alternate representatives and monitors may be remunerated.

SECTION 44: [Representation Agreement Act, amends section 27]

(a) clarifies that making a change to a representation agreement involves following the same steps as for executing a representation agreement;

(b) for consistency with other provisions, restates the rule about when the revocation of a representation agreement becomes effective.

SECTION 45: [Representation Agreement Act, amends section 28 (1)] makes a change consequential to the repeal of section 9 (1) (h) of the Act.

SECTION 46: [Representation Agreement Act, amends section 29]

(a) replaces a reference to divorce with a reference to termination of the marriage;

(b) allows an adult, who has named a spouse as representative and has consulted with a lawyer or other person under section 9 of the Act, to specify that the representation agreement survives the termination of the relationship and adds a provision defining when a marriage terminates;

(c) restates another exception to the rule that a representation agreement terminates on the occurrence of certain events.

SECTION 47: [Representation Agreement Act, amends section 30]

(a) removes a section reference as a consequence of the changes made to section 5 of the Act;

(b) eliminates, as a ground for objection to the Public Guardian and Trustee, the failure of a representative to comply with the adult's wishes but leaves failure to follow the instructions in the representation agreement as a ground for objection;

(c) eliminates, as a ground for objection to the Public Guardian and Trustee, a representative's decision to consent to inappropriate health care;

(d) adds to the list of steps the Public Guardian and Trustee may take on reviewing an objection concerning a representation agreement.

SECTION 48: [Representation Agreement Act, adds section 31 (3)] adds a provision setting out the steps the Public Guardian and Trustee may take after an investigation under section 31 of the Act.

SECTION 49: [Representation Agreement Act, amends section 42]

(a) authorizes the Lieutenant Governor in Council to make regulations for the purposes of various provisions of the Act that require the adult to consult with others if certain provisions are included in a representation agreement;

(b) authorizes the Lieutenant Governor in Council to make regulations concerning the form in which accounts and other records are to be kept by representatives and concerning notice under the Act;

(c) authorizes the Lieutenant Governor in Council to prescribe one or more forms of representation agreement.

SECTION 50: [Representation Agreement Act, repeals sections 5 (2) (b) and (c) and (3), 16 (10), 27 (1) (d) (iv), (3) and (4) and 31 (3) of the Supplement] repeals certain provisions of the Act that have not been brought into force and that either are to be replaced by provisions proposed in this Bill or are no longer needed.

SECTION 51: [Representation Agreement Act, enacts section 44.1] adds a transitional provision for agreements executed before the amendments to section 13 of the Act come into force and that would be validly executed if those amendments were already in force.


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