2001 Legislative Session: 5th Session, 36th 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 29th day of March, 2001
Ian D. Izard, Law Clerk
HONOURABLE GRAEME BOWBRICK
ATTORNEY GENERAL AND MINISTER
RESPONSIBLE FOR HUMAN RIGHTS
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1 Section 46 (1) (b) of the Adult Guardianship Act, R.S.B.C. 1996, c. 6, is repealed and the following substituted: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4 Section 52 (a) is repealed and the following substituted: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9 Section 60 (5) is repealed and the following substituted: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:
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:
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:
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:
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:
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:
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:
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:
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, or .
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:
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.
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.
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