July, 2001

Bulletin 2.2 - Adult Guardianship Legislation (including the Representation Agreement Act)

In 1993, the British Columbia government passed four statutes, the Adult Guardianship Act, the Healthcare (Consent) and Care Facility (Admission) Act, the Public Guardian and Trustee Act and the Representation Agreement Act. Parts of these four statutes were proclaimed effective in February, 2000.

The Adult Guardianship Act has provisions which are now in effect for the support and assistance of abused and neglected adults. This act was to repeal the Patients Property Act but those sections have not yet come into effect, and therefore the Courts may continue to appoint Committees (trustees) for the management of the assets and business and/or the personal health decisions of a person with diminished mental capacity.

The Healthcare (Consent) and Care Facility (Admission) Act provides the legal structure for "substitute consent" for persons unable to give or refuse consent to health care and establishes a new tribunal, the Health Care and Care Facility Review Board to hear applications for review of substitute decisions made by substitute decision makers.

The Public Guardian and Trustee Act expands the functions and powers of the Public Guardian and Trustee who has broad responsibilities in connection with persons of diminished legal capacity.

The Representation Agreement Act provides for the opportunity for any adult to make a Representation Agreement appointing a Representative to undertake all financial and legal matters and/or all personal and health care matters for a person who suffers mental incapacity. The Representation Agreement will replace the Enduring Power of Attorney on September 1, 2002. After that date no Enduring Powers of Attorney may be created, but any Enduring Power of Attorney existing at that date will remain effective.

The Representation Agreement Act is complex, primarily because, enormous power is given to a Representative carrying with it the opportunity for many abuses. Therefore many protections are contained in the Act.

The protections may include a clause that the agreement becomes effective only upon your mental infirmity which is to be confirmed in writing by your physician, or by several members of your family etc. Other protections which are required by the statute include:

a) You must consult a lawyer who must complete a certificate that you "appeared to understand the nature of the authority given to his or her representative and the effect of such authority".

b) Unless your spouse is your Representative or a lawyer completes a prescribed certificate, the agreement must appoint a "Monitor" who must fill out a certificate certifying that he has no reason to object to the Representation Agreement and acknowledging his / her listed powers and duties which include making sure the Representative complies with his or her duties, visiting the person, and reporting any non-compliance to the Public Guardian and Trustee.

c) The agreement must be signed in the presence of the lawyer or alternatively two witnesses who must complete a Certificate of Witness certifying that they are qualified as witnesses, that they are independent and that they have no reason to object to the making of the Representation Agreement. An attached Notice to Witnesses states grounds for objecting to the making of a Representation Agreement and grounds for objecting to the agreement, changes or revocations.

The Representation Agreement Act creates many legal questions, opportunities and problems. A number of certificates may be required to be attached to the agreement completed by the Representative, the Lawyer consulted, the Monitor and the two witnesses. All lawyers will be feeling their way through the new legislation and endeavouring to produce agreements which are as lucid and economical as possible. The opportunity for debate, error and complexity is significant and therefore, legal fees are expected to be substantial.

At the current time, we estimate that the legal fees would be $1,000.00 (plus taxes) and could be significantly more if extensive consultation and advice required.

 

J.H. Rocke Robertson
Direct Line: +1 (604) 267-2814
E-mail: robertson@aydinco.com