What is it with the needs of our most elders, those with end-of-life issues, that so spooks the legislator?
For start-of-life, aka family law issues, statutes abound all reflecting, as best law can, the delicate intricacies of the birth and slow but constant intellectual development of children.
The same phenomena affects elders but in reverse, such as with my grand-mother (pictured, left) who lost her ability to walk but never her ability to think and remained conversant to her end.
Seniors are routinely institutionalized and one is left to wonder if this under the carpet approach affects the motivation to modernize adult guardianship law? True; many need constant care but many others retain significant abilities. And even those who are true and true demented, a solid statute is needed to ensure that their rights and assets are protected.
In the result, the gamut of elder law, adult guardianship law “out there” runs from downright nonsense to scary. Nonsense as in the quick and dirty institutionalization of elders with a small amount of dementia, to scary in the debate over euthanasia.
Of the thousands of governments in the world, that of British Columbia is usually considered one of the more enlightened jurisdictions. It is a jurisdiction to which elders flock, especially to Vancouver or Victoria where subzero weather and snow is a novelty.
And yet the jurisdiction agonizes over adult guardianship law.
The official Public Guardian is quiet as a mouse and never speaks out with a strong voice contrary to, say, the provincial Representative for Children and Youth (now there’s an advocate!).
On adult guardianship leadership, the Public Guardian meekly defers to the Court who defers back to him or to the government who defers to the court who .....
The bigger crime may be that there is no uniform act on adult guardianship in Canada that has attracted any attention. It’s every province for itself. So, to borrow from Voltaire, this essential law changes as often as you cross provincial borders in Canada.
Who’s In Charge?
Six years ago, the government emerged from a decade-long reform exercise to enact significant reform in the area of living wills and powers of attorney. The new Representation Agreement Act, which is now the law in British Columbia, allows anybody to predetermine who will manage their assets and their person in the event of temporary or permanent mental incapacity.
The deal was that the new statute would allow the government to revoke much of the Power of Attorney Act.
However, representation agreements are such complicated documents that the elder law bar put up a fuss and the government decided to leave the Power of Attorney Act on the books.
In the result, there are now several ways to delegate to another authority over one’s estate including an enduring power of attorney or a representation agreement.
Result to the tax payer: confusion.
Result to the legal profession: a bigger product line.
Adult Guardianship
Where there is no predetermined attorney to manage one's affairs in the event of mental incapacity, all hell can break loose. Often, competing family members rush to find the necessary 2 doctors to certify incapacity and to obtain a court order to be named manager of the alleged incapable adult, almost always a senior.
The statute is awkwardly named the Patients Property Act, and the individual who was given authority to manage the affairs of the incapable adult, a committee even if, as is usually the case, it is only one person.
Result: unnecessary legalese.
Worse, the “PPA” does not recognize the slow progress of dementia except those who have had a brain injury or suffered a stroke. It assumes that there is a bright red line. This does an extreme injustice to virtually all dementia patients who upon the onset of a physical set of symptoms, may have their ability to manage their own affairs removed, literally, by their Big Brother.
Enter the Adult Guardianship and Planning Statutes Amendment Act, 2007. This statute was passed by the provincial legislature three years ago (!) but it sits in the doldrums while the government decides whether to bring it in force or not.
The proposed new law would kill the dreaded PPA entirely, reason enough to celebrate. That's one bonfire I'd light.
Some of the highlights of this new law which may never see the light of day in British Columbia:
- Rather than rely on covert assessments by doctors upon adults that do not know that they are being assessed for mental incapacity, the proposed new statute proposes an initial judicial determination whether such an assessment is necessary or not.
- Plain language abounds. The roles of the guardian is neatly divided into “personal guardian” and “property guardian”.
- Members of the College of Physicians and Surgeons are no longer the only ones able to certify mental incapacity. The new statute refers to “qualified health care providers” ... but fails to define this, leaving it to infinity and beyond: regulations.
- The shock and awe approach to far too many PPA applications is minimized by the obligation to serve any application for adult guardianship on all adult children of the alleged incapable person.
- The court is no longer encouraged to jump in and sever all legal rights of the alleged incapable person by a Draconian PPA order. Instead, amongst the court’s arsenal, it has to consider whether: “the needs of the adult would not be sufficiently met by alternative means of assistance.”
- The applicant(s) for guardianship must present a “plan for guardianship” but does not say what has to go in there. That, also, is left to regulation.
- The new law specifically provides for mandatory mediation if there are competing applications for guardianship or a disagreement over the proposed plan for guardianship.
- Contrary to the PPA which was silent on the issue and relies instead on conflicting case law, the new statute disallows up front, as a prospective guardian, “a person who has a conflict of interest with the adult”. Further cross referencing and guesswork with English common law is also reduced by specifically ending the guardianship if the guardian becomes bankrupt.
- The new statute requires of the guardian, that she or he “foster(s) the independence of the adult and encourage the adult's involvement in any decision-making”. It seems almost sad that a law would have to state common sense but any good elder law solicitor can give you horror stories to support the inclusion of this essential statement of law.
- Unless the court agrees, the personal guardian cannot give or refuse consent to health care necessary to preserve life, such as the guardian's discreet but horrifying “do not resuscitate” order.
- The new statute allows for a review of a guardianship order, something the present act is silent on. Shocker alert: the proposed statute specifically provides for a reversal of the order “if the adult's needs, circumstances or ability to make decisions has changed significantly since the order was made and a change in or cancellation of the order appears to be in the best interests of the adult”!
But the proposed statute is not perfect. One of the glaring omissions is to defer to the Public Guardian and Trustee on the timing and form of the guardian’s formal reporting, called “accounts”.
The Public Guardian is a large bureaucracy, one quick to charge fees.
Under the PPA, the Public Guardian has not shown strong leadership. At the time of writing, they have proposed, of their own volition, a soft deadline of first financial reporting on the anniversary of a court order. But there is at least one case I am aware of where, for example, an interim appointment exists and for which, 22 months later, the Public Guardian has not exercised its discretion and demanded an accounting of the incumbent interim committee; this, even where a conflict of interest is known to exist.
The new statute also defers to the Public Guardian and Trustee to conduct investigations but only if, at the PG&T’s discretion, there is “reason to believe that a guardian has failed ... to comply with” his or her duties.
What's The Hold-up?
Under pressure to “do something”, the government has created a little public consultation group to propose and discuss with the public regulations under the proposed, but-not-yet, if-ever-yet, Adult Guardianship and Planning Statutes Amendment Act. These draft regulations are completely useless until and unless the bill is given force and effect.
The proposed statute left much to the imagination of the government's executive branch.
While John Doe, politician, and Jane Doe, bureaucrat discuss what to with the gathering dust on the statute, most British Columbians continue on with their busy lives. On Robson Street or anywhere else, engaged in smart phone conversations, they are oblivious to the old man, covered in a blanket, being wheel-chaired into a waiting senior's home van, having just come from a psychiatrist's office where, unbeknownst to him, he was certified incapable and soon will have the same rights an infant has over his person and his property: none.
But the suits on Robson Street should pay more attention as without this needed statutory reform, the day will inevitably come where it will be them wheeled into legal oblivion under the black hole of the Patients Property Act.
• Editor’s note: there is much more to the new proposed statute especially as concerns specificity in statute law in regards to powers of attorney. Given the limitations of this forum, the statute in specific regards to adult guardianship only was commented on. For the entire text of the proposed new statute, see References below.
REFERENCES:
- Adult Guardianship Act, R.S.B.C. 1996, c. 6
- Adult Guardianship and Planning Statutes Amendment Act, 2007, 3rd reading version
- Adult Guardianship and Planning Statutes Amendment Act: Regulations, Consultation Drafts, Invitation to Comment on Proposed Regulations Necessary to Implement the Adult Guardianship and Planning Statutes Amendment Act, 2007
- Duhaime, Lloyd, Adult Guardianship - Patients Property Legislation
- Duhaime, Lloyd, Adult Guardianship: Who Takes Care of Granny?
- Duhaime, Lloyd, Representation Agreements in British Columbia
- Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181
- Patients Property Act, R.S.B.C. 1996, c. 349
- Public Guardian and Trustee Fees Regulation, B.C. Reg. 312/2000