1998/99 Legislative Session: 3rd Session, 36th Parliament
FIRST READING


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


HONOURABLE UJJAL DOSANJH
ATTORNEY GENERAL AND MINISTER RESPONSIBLE FOR
MULTICULTURALISM, HUMAN RIGHTS AND IMMIGRATION


BILL 92 -- 1999

ADULT GUARDIANSHIP STATUTES
AMENDMENT ACT, 1999

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 1 of the Adult Guardianship Act, R.S.B.C. 1996, c. 6, is amended

(a) in paragraph (b) of the definition of "designated agency" by striking out "section 61 (a)" and substituting "section 61 (a.1)", and

(b) by repealing the definition of "representation agreement" and substituting the following:

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

2 Part 2 is amended by repealing the heading of Part 2 and the heading of Division 1 and by substituting the following after section 3:

Part 2 -- Decision Makers, Guardians and Monitors

Division 1 -- Appointment Procedure .

3 Part 3 is amended by adding the following section:

Definition

44.1 In this Part, "guardian" includes a committee under the Patients Property Act.

4 Section 61 is amended by repealing paragraph (a) and substituting the following paragraphs:

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

(a.1) by regulation, designate as agencies for the purposes of any or all of the provisions of Part 3 any public body, organization or person and limit their functions as designated agencies by reference to any factor that the Public Trustee considers advisable, .

 
Court Rules Act

5 Section 1 (2) of the Court Rules Act, R.S.B.C. 1996, c. 80, is amended by adding "the Adult Guardianship Act," before "the Infants Act".

6 Section 1 (a) of the Supplement to the Court Rules Act is repealed.

 
Estate Administration Act

7 Section 112 of the Estate Administration Act, R.S.B.C. 1996, c. 122, is amended by adding the following subsection:

(8.1) If

(a) the court grants or reseals probate or letters of administration under this section, and

(b) a person referred to in subsection (1) (a) is or may be a minor, a person with a mental disorder or a person who has a committee or representative,

the executor or administrator of the estate must, within 45 days of the grant or resealing, mail or deliver to the Public Trustee a copy of that grant or resealed grant.

 
Family Relations Act

8 Section 91 of the Family Relations Act, R.S.B.C. 1996, c. 128, is amended 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 90 of this Act after an investigation is conducted under Part 3 of that Act.

(2.2) A representative may apply for an order under this Part on behalf of a parent described in section 90 of this Act, if the representative is authorized under the Representation Agreement Act to make decisions about the routine management of the parent's financial affairs.

9 Section 7 (1) (b) of the Supplement to the Family Relations Act is repealed.

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

10 Section 1 of the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, is amended

(a) by repealing the definition of "guardian" and substituting the following:

"guardian" means a person appointed as

(a) a guardian under the Adult Guardianship Act, or

(b) a committee of a person who is declared under the Patients Property Act to be

(i) incapable of managing himself or herself, or

(ii) incapable of managing himself or herself and his or her affairs; , and

(b) by repealing the definition of "representation agreement" and substituting the following:

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

11 Section 14 is amended

(a) in subsections (1) (d) and (3) by striking out "subsections (4) to (7)" and substituting "subsections (4) and (7)", and

(b) in subsection (8) by striking out "in an emergency".

12 Section 16 (3) is amended by striking out "someone authorized by the Public Trustee." and substituting "a person, including a person employed in the office of the Public Trustee, authorized by the Public Trustee."

13 Section 19 (1) (ii) is amended by striking out "someone authorized" and substituting "a person authorized".

14 Section 27 is repealed and the following substituted:

Health Care and Care Facility Review Board

27 (1) The minister must establish a Health Care and Care Facility Review Board, appoint its members and designate a member of the board as its chair.

(2) The chair of the board may establish one or more panels of the board and designate the chair of each panel established and a panel, if established, must include at least

(a) one health care provider,

(b) one member of the Law Society of British Columbia, and

(c) one person who is not a health care provider nor a member of the Law Society of British Columbia.

(3) If a panel is established

(a) the chair of the board may refer matters that are before the board to a panel or a matter that is before a panel to the board or another panel,

(b) the panel has all the jurisdiction and may exercise and perform the powers and duties of the board with respect to matters that come before the panel,

(c) the board or 2 or more panels may proceed with separate matters at the same time, and

(d) a decision or order of the panel is a decision or order of the board.

(4) The members of the board are entitled to be reimbursed by the minister for reasonable travelling and other out of pocket expenses necessarily incurred in discharging their duties, and may be paid remuneration set by the Lieutenant Governor in Council.

15 Section 28 is amended

(a) in subsection (2) by adding the following paragraph:

(d.1) a health care provider caring for the adult referred to in paragraph (a); ,

(b) in subsection (2) (e) by adding "in prescribed circumstances" after "organization", and

(c) by repealing subsection (4).

16 Sections 30 to 32 are amended by striking out "a board" wherever it appears and substituting "the board".

17 Section 31 (3) is amended by striking out "for the region where the health care is provided or is to be provided".

18 Section 34 (2) is amended

(a) by adding the following paragraph:

(k.1) prescribing the circumstances in which a prescribed advocacy organization may request a review. ,

(b) by repealing paragraph (j), and

(c) in paragraph (l) by striking out "before boards." and substituting "before the board."

 
Land Title Act

19 The Land Title Act, R.S.B.C. 1996, c. 250, is amended by adding the following section:

Representation agreement

47.1 (1) This Part and section 51 apply to an instrument executed by a representative under a representation agreement made under section 9 of the Representation Agreement Act as though the representation agreement were an enduring power of attorney.

(2) For the purposes of subsection (1), the following references in this Part and in section 51 are to be read as follows:

(a) a reference to a power of attorney or to an enduring power of attorney as a reference to a representation agreement;

(b) a reference to an attorney as a reference to a representative;

(c) a reference to the Power of Attorney Act or to a provision of that Act as a reference to the Representation Agreement Act or to the corresponding provision of that Act, as the case may be.

 
Patients Property Act

20 Section 1 of the Patients Property Act, R.S.B.C. 1996, c. 349, is amended by adding the following definition:

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

21 Section 19 is repealed and the following substituted:

Effect on power of attorney or representation agreement of person
becoming a patient by court order

19 On a person becoming a patient as defined in paragraph (b) of the definition of "patient" in section 1,

(a) every power of attorney given by the person is terminated, and

(b) unless the court orders otherwise, every representation agreement made by the person is terminated.

22 The following sections are added:

Effect on power of attorney or certain representation agreements of
person becoming a patient other than by court order

19.1 (1) On a person becoming a patient as defined in paragraph (a) of the definition of "patient" in section 1, the following are suspended:

(a) every power of attorney that was given by the person;

(b) every provision of a representation agreement made by the person in respect of his or her property unless the representation agreement is one referred to in section 19.2 (1) (b).

(2) After receiving a copy of the suspended power of attorney or of a representation agreement any provision of which has been suspended under subsection (1) and any information that the Public Trustee may require, the Public Trustee must determine whether it is necessary or desirable for the Public Trustee to manage the patient's property under this Act.

(3) If the Public Trustee determines that it is necessary or desirable for the Public Trustee to manage the patient's property, then on the making of the determination

(a) the power of attorney that was suspended under subsection (1) is terminated, or

(b) the provisions of the representation agreement that were suspended under subsection (1) are cancelled,

as the case may be.

(4) If the Public Trustee determines that it is not necessary or desirable for the Public Trustee to manage the patient's property,

(a) the Public Trustee's authority as committee under the certificate referred to in paragraph (a) of the definition of "patient" in section 1, is terminated on the making of that determination, and

(b) the suspension of the power of attorney or of the provisions of the representation agreement ends on the termination of the Public Trustee's authority as committee.

Termination of committee if representation agreement applies to all property of person
becoming a patient other than by court order

19.2 (1) This section applies if

(a) before becoming a patient as defined in paragraph (a) of the definition of "patient" in section 1, a person made a representation agreement in respect of which a certificate was completed under section 9 (2) (b) of the Representation Agreement Act,

(b) the representation agreement, by virtue of the authority given to a representative under section 9 (1) (g), (h) or (i) of the Representation Agreement Act, or under both that section and section 7 (1) (b) or (d) of that Act, applies to all of the person's property, and

(c) the Public Trustee receives a copy of each of the following:

(i) the representation agreement;

(ii) the certificates referred to in sections 5 (4), 9 (2) (b), 12 (3) and 13 (6) of the Representation Agreement Act;

(iii) an undertaking in the prescribed form signed by the representative.

(2) If the conditions in subsection (1) are met, the Public Trustee's authority as committee under the certificate referred to in paragraph (a) of the definition of "patient" in section 1 is terminated on the Public Trustee notifying the representative that those conditions have been met.

(3) The Lieutenant Governor in Council may prescribe a form of undertaking for the purposes of subsection (1) (c) (iii).

23 Sections 25, 26, 29 and 30 (2) are repealed.

 
Power of Attorney Act

24 Section 8 (2) of the Power of Attorney Act, R.S.B.C. 1996, c. 370, is repealed and the following substituted:

(2) The authority of an attorney given by a power of attorney referred to in subsection (1) terminates

(a) on the making of an order under section 3 of the Patients Property Act,

(b) on the appointment of a committee under section 6 (1) of that Act, or

(c) as provided in section 19 (a) or 19.1 (3) (a) of that Act.

25 The following section is added:

Powers of attorney made before repeal of section 8

8.1 Despite the repeal of section 8,

(a) a power of attorney referred to in that section continues to have effect if made before the repeal of that section comes into force, and

(b) that section continues to apply in respect of that power of attorney.

 
Public Guardian and Trustee Act

26 Section 1 of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, is amended

(a) in the definition of "guardian" by adding ", and includes a committee under the Patients Property Act" after "as a guardian", and

(b) by repealing the definition of "representation agreement" and substituting the following:

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

 
Representation Agreement Act

27 Section 7 of the Representation Agreement Act, R.S.B.C. 1996, c. 405, is amended

(a) in subsection (1) (b) by striking out ", for example," and substituting ", subject to the regulations,",

(b) by repealing subsection (1) (b) (iv) and substituting the following:

(iv) the making of investments; , and

(c) by adding the following subsection:

(2.1) A representative may not be authorized under this section to help make, or to make on the adult's behalf, a decision to refuse life-supporting care or treatment.

28 Section 9 (1) is amended by repealing paragraph (h) and substituting the following:

(h) invest the adult's assets; .

29 Section 12 is amended

(a) by adding the following subsection:

(1.1) Despite subsection (1) (b), an adult must name someone as a monitor if the adult proposes to authorize a representative to do anything referred to in section 7 (1) (b) unless

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

(b) the representative is the adult's spouse. , and

(b) in subsection (4) by striking out "subsection (1)" and substituting "subsection (1) or (1.1)".

30 Section 13 is amended by adding the following subsections:

(2.1) If an instrument executed by a representative under a representation agreement made under section 9 of this Act is to be effective for the purposes of the Land Title Act,

(a) one of the witnesses to the execution of that agreement by the adult must be an officer as defined in section 41 of the Land Title Act, and

(b) the execution of the representation agreement by the adult must be witnessed or proved by the adult in the manner required for instruments by Part 5 of the Land Title Act.

(7) If there is a defect in the execution of a representation agreement, a person named in the agreement as a representative may apply to the court for an order under section 31 (4) that the agreement is not invalid solely because of the defect.

31 Section 15 (1) is amended by striking out "registered" and substituting "executed".

32 Section 27 (1) (a) is amended by striking out "changing or revoking" and substituting "making".

33 Section 28 (1) is amended by striking out "or" at the end of paragraph (b), by adding ", or" at the end of paragraph (c) and by adding the following paragraph:

(d) as provided in section 19.1 (3) (b) of the Patients Property Act.

34 Section 29 (1) is amended by adding the following paragraph:

(h) as provided in section 19 of the Patients Property Act.

35 Section 30 (3) is amended

(a) by adding the following paragraph:

(e.1) apply to the court for an order that a representation agreement is not invalid solely because of a defect in the execution of the agreement; ,

(b) in paragraph (f) by striking out "paragraph (d) or (e);" and substituting "paragraph (d), (e) or (e.1);", and

(c) by adding the following paragraph:

(h) take any other action that the Public Trustee considers necessary.

36 Section 32 is amended by adding the following subsection:

(4) On application under section 13 (7) or 30 (3) (e.1) or (f), the court may order that a representation agreement is not invalid solely because of a defect in the execution of the agreement.

37 Section 39 is repealed and the following substituted:

Pre-existing agreements

39 An agreement that

(a) was made before this Act authorized the making of a representation agreement, and

(b) would have been a valid representation agreement if, at the time the agreement was made, this Act had authorized the making of a representation agreement,

is valid and is deemed for all purposes to have been made under this Act.

38 Section 42 (2) is amended by adding the following paragraphs:

(a.1) respecting what constitutes "routine management of the adult's financial affairs" for the purposes of section 7 (1) (b), including regulations limiting, modifying or supplementing the matters listed in subparagraphs (i) to (iv) of that section;

(g.1) defining any word or expression used but not defined in this Act.

Commencement

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

 
Explanatory Notes

 
Adult Guardianship Act

SECTION 1: [Adult Guardianship Act, amends section 1]

(a) adjusts a section reference in the definition of "designated agency" to reflect the proposed amendments to section 61 of the Act;

(b) repeals and replaces the definition of "representation agreement" to remove any reference to an agreement or other document being registered under the Representation Agreement Act.

SECTION 2: [Adult Guardianship Act, amends Part 2 heading] repositions the headings of Part 2 and Division 1 to ensure that section 3 of the Act applies to the entire Act, rather than to Part 2 alone.

SECTION 3: [Adult Guardianship Act, enacts section 44.1] expands the definition of "guardian" to include, for the purposes of Part 3 of the Adult Guardianship Act, a committee appointed under the Patients Property Act. This amendment is necessary because the Patients Property Act will continue to apply after the abuse and neglect provisions of Part 3 of the Adult Guardianship Act come into force.

SECTION 4: [Adult Guardianship Act, amends section 61] allows the Public Trustee to limit the duties, powers and responsibilities of agencies designated for the purpose of Part 3 of the Act.

 
Court Rules Act

SECTION 5: [Court Rules Act, amends section 1 (2)] allows Rules of Court to be made for matters arising under the Adult Guardianship Act.

SECTION 6: [Supplement to the Court Rules Act, repeals section 1 (a)] repeals an amendment that was consequential to the repeal of the Patients Property Act. The amendment is no longer needed because the Patients Property Act will remain in force.

 
Estate Administration Act

SECTION 7: [Estate Administration Act, adds section 112 (8.1)] is consequential to the Representation Agreement Act and to the Patients Property Act remaining in force.

 
Family Relations Act

SECTION 8: [Family Relations Act, adds section 91 (2.1 and (2.2)] allows designated agencies under the Adult Guardianship Act and certain representatives under the Representation Agreement Act to apply under the Family Relations Act for an order for support of an adult by his or her children. These provisions replace amendments to the Family Relations Act that have not been brought into force.

SECTION 9: [Supplement to the Family Relations Act, repeals section 7 (1) (b)] repeals amendments that are being replaced by the proposed amendments to section 91 of the Act.

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

SECTION 10: [Health Care (Consent) and Care Facility (Admission) Act, amends section 1] expands the definition of "guardian" to include certain committees of a patient under the Patients Property Act.

SECTION 11: [Health Care (Consent) and Care Facility (Admission) Act, amends section 14]

(a) removes the requirement that a health care provider comply with subsections (5) and (6) of the section if care is provided to an adult without the adult's consent, and

(b) removes a reference to "emergency" that is redundant in light of section 12 of the Act.

SECTION 12: [Health Care (Consent) and Care Facility (Admission) Act, amends section 16 (3)] clarifies that persons employed in the office of the Public Trustee can be authorized by the Public Trustee to act for the purposes of the section.

SECTION 13: [Health Care (Consent) and Care Facility (Admission) Act, amends section 19 (1) (ii)] is consequential to the amendment to section 16 (3) of the Act.

SECTION 14: [Health Care (Consent) and Care Facility (Admission) Act, re-enacts section 27] provides that the work of the Health Care and Care Facility Review Board may be performed through panels of the Board.

SECTION 15: [Health Care (Consent) and Care Facility (Admission) Act, amends section 28] allows a health care provider to request a review, provides that a prescribed advocacy organization can request a review in prescribed circumstances and repeals a provision consequential to the re-enactment of section 27 of the Act.

SECTION 16: [Health Care (Consent) and Care Facility (Admission) Act, amends sections 30 to 32] is consequential to the re-enactment of section 27 of the Act.

SECTION 17: [Health Care (Consent) and Care Facility (Admission) Act, amends section 31 (3)] is consequential to the re-enactment of section 27 of the Act.

SECTION 18: [Health Care (Consent) and Care Facility (Admission) Act, amends section 34 (2)]

(a) authorizes the Lieutenant Governor in Council to prescribe the circumstances in which a prescribed advocacy organization can request a review;

(b) makes amendments consequential to the re-enactment of section 27 of the Act;

(c) is consequential to the re-enactment of section 27 of the Act.

 
Land Title Act

SECTION 19: [Land Title Act, enacts section 47.1] provides that instruments executed by a representative in a real estate transaction are to be executed and witnessed in accordance with the requirements of the Land Title Act relating to instruments executed under a power of attorney.

 
Patients Property Act

SECTION 20: [Patients Property Act, amends section 1] adds a definition of "representation agreement" to provide a link between the Representation Agreement Act and the Patients Property Act.

SECTION 21: [Patients Property Act, re-enacts section 19] clarifies that once a person is declared incapable by court order and becomes a patient, every representation agreement made by the person is terminated, unless the court orders otherwise.

SECTION 22: [Patients Property Act, enacts sections 19.1 and 19.2] adds provisions specifying the effect of a person becoming a patient, other than by court order, on a power of attorney, on a representation agreement covering only part of the person's property and on a representation agreement covering all of the person's property.

SECTION 23: [Patients Property Act, repeals section 25, 26, 29 and 30 (2)] is consequential to the Public Guardian and Trustee Act.

 
Power of Attorney Act

SECTION 24: [Power of Attorney Act, repeals and replaces section 8 (2)] adds references to the termination of a power of attorney under the proposed sections 19 and 19.1 of the Patients Property Act.

SECTION 25: [Power of Attorney Act, enacts section 8.1] provides that a pre-existing enduring power of attorney made under section 8 of the Act is not affected by the repeal of that section.

 
Public Guardian and Trustee Act

SECTION 26: [Public Guardian and Trustee Act, amends section 1]

(a) includes in the definition of "guardian" a committee under the Patients Property Act;

(b) repeals and replaces the definition of "representation agreement" to remove the reference to the registration of the agreement.

 
Representation Agreement Act

SECTION 27: [Representation Agreement Act, amends section 7]

(a) along with the proposed amendment to section 41 of the Act, authorizes the making of regulations respecting the routine management of an adult's financial affairs under a standard representation agreement;

(b) removes the limitation that under a standard representation agreement a representative cannot be authorized to make investments, other than investments that under the Trustee Act a trustee is authorized to make;

(c) clarifies that a representative named in a standard agreement is not authorized to make a decision on the adult's behalf to refuse life supporting care and treatment.

SECTION 28: [Representation Agreement Act, amends section 9 (1)] allows an adult who makes an enhanced representation agreement to authorize a representative to invest generally without the adult having to specify in advance how the investments are to be made.

SECTION 29: [Representation Agreement Act, amends section 12]

(a) requires that a monitor be named if an adult makes a standard agreement with routine financial management provisions, and specifies the exceptions to this general rule;

(b) is consequential to the proposed provision requiring that a monitor be named.

SECTION 30: [Representation Agreement Act, adds section 13 (2.1) and (7)] provides that the execution and witnessing requirements of the Land Title Act apply to certain representation agreements. Also allows a representative to apply for a court order to cure a defect in the execution of a representation agreement.

SECTION 31: [Representation Agreement Act, amends section 15 (1)] removes a reference to a representation agreement being registered.

SECTION 32: [Representation Agreement Act, amends section 27 (1) (a)] clarifies that an adult has to be capable of making a representation agreement in order to be able to change or revoke a representation agreement.

SECTION 33: [Representation Agreement Act, adds section 28 (1) (d)] is consequential to the proposed section 19.1 (3) (b) of the Patients Property Act which provides for the cancellation of certain provisions of a representation agreement if the adult becomes a patient other than by court order and the Public Trustee considers it necessary or desirable to manage the patient's property.

SECTION 34: [Representation Agreement Act, adds section 29 (1) (h)] is consequential to the proposed section 19 of the Patients Property Act which provides for the cancellation of a representation agreement if the adult becomes a patient by court order.

SECTION 35: [Representation Agreement Act, amends section 30 (3)]

(a) allows the Public Trustee to apply for a court order to cure a defect in the execution of a representation agreement;

(b) allows the Public Trustee to recommend that someone else apply for a court order to cure a defect in the execution of a representation agreement;

(c) ensures that the Public Trustee has the requisite authority to recommend any other action considered necessary if an objection is filed to a representation agreement, to a change to that agreement or to a revocation of that agreement.

SECTION 36: [Representation Agreement Act, adds section 32 (4)] authorizes the Supreme Court to order that a representation agreement is not rendered invalid by a defect in the execution of the agreement.

SECTION 37: [Representation Agreement Act, re-enacts section 39] repeals a provision that permits enduring powers of attorney to be registered under the Act and then treated as representation agreements. The replacement section provides that pre-existing representation agreements are, in certain circumstances, valid.

SECTION 38: [Representation Agreement Act, amends section 42 (2)] expands the Lieutenant Governor in Council's authority to make regulations.


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