How can BC laws empower caregivers?

Q – Will BC government policies ease stress on representatives (caregivers)?

Nidus has been reviewing a number of laws – some are already in effect and some are not yet in force but may be coming. See the headings below and links to more detail.

We have found many problems that could cause additional stress on caregivers instead of making things easier. One major problem is that these existing and pending laws contradict the Representation Agreement Act and the principles from the law reform of adult guardianship that the BC government agreed to.

The contradictions create a lot of confusion for the public as well for providers in community care and residential care. Confusion and complexity leads to greater costs in staff time – and this affects taxpayers.

One of the key principles of the law reform is that adult guardianship must be the last resort. Under guardianship, adults lose their civil rights in order to get help with decision making. These adults are not criminals and the law reform was about creating a legal alternative (Representation Agreements) to protect the adult’s rights and balance self-determination and safety.

Some current and pending legislation discussed are likely to lead to MORE guardianship, not LESS. Adult guardianship is not sustainable – it does NOT help caregivers to promote self-determination of those they support.

Nidus is preparing a detailed analysis of concerns we have heard from the public, representatives (caregivers) and third parties. Here are a few highlights:

 

Pending amendments for consent to admission to a care facility – Bill 26, 2007

The proposed amendments for consent to an adult’s admission to a care facility DO NOT match the legislation for consent to health care. Yet, they are both covered by the same Act.

The amendments for care facility admission read as if they were written by a residential care manager – perhaps someone who is part of the BC Care Provider’s Association? We don’t know who wrote them but they don’t match the rest of the legislation in content or tone.

See the chart that Nidus made up to give a snapshot of a key problem with these pending amendments – ignoring an adult’s choice by ignoring the Representation Agreement in the hierarchy of consent.

Click for Comparison Chart for Consent to Health Care & Consent to Care Facility Admission.

Another key problem in the pending amendments is the lack of protections for residents in the use of restraints. We know this issue is of great concern to caregivers, especially those caring for people with dementia. We expect the Alzheimer Society of BC must be very concerned on behalf of the people it serves.

 

Community Care and Assisted Living Act and Bill 16, 2016

• Section 18 (in effect) appears to prevent a representative named in a  Representation Agreement, who is associated with a community care setting (as staff, volunteer or other roles), from acting for an adult who resides or uses the services of a community care setting, anywhere in BC.
• Section 28.1 (pending) repeats the same problems as noted above for section 18 – except section 28 applies to Assisted Living residences.
• The Hospital Act (sec. 4.1) has similar problems.

Click to read some examples – Information and Examples for CC&AL Act & Bill 16

 

“These problems will not be fixed by the Regulations. Before the election, the Liberal Government issued a Seniors Action Plan that identified the pending legislation for assisted living and consent to care facility admission to come into effect after the bureaucracy finalized the Regulations.

Regulations spell out details of some specific items in the legislation – for example the proposed legislation says ‘A manager must ensure a person in case is not restrained except in accordance with the regulations.’ The original legislation outlined very specific (and public) circumstances for the use of restraints, it was not left up to regulations, which can be more easily changed and influenced by provider organizations who are in close contact with government staff.

Regulations are passed by the Cabinet and not open to public scrutiny like legislation, which has to go before all parties and the public in the Legislative Assembly. Regulations can’t fix bad legislation.

As the federal government is saying about discussions on trade with the United States – ‘we want a good deal, not any deal.’  The caregivers of BC need good laws to enable them to support the needs and wishes of their spouse, family members and friends!“

 

Adult Guardianship Act

The Adult Guardianship Act was part of the grass-roots law reform of adult guardianship legislation. It was intended to replace the Patients Property Act.

Proposed by seniors, former Woodlands residents, caregivers and other BC citizens and community groups, the reforms included:

• Eliminating public guardianship (where the state via the PGT takes over an adult’s affairs); and
• Making court-ordered guardianship time limited and task limited.

The proposed changes to the formal guardianship system (by the people most affected) were likely too ‘radical’ for some in 1993 – they were passed by all parties in the legislature but resistance prevented them from coming into force.

The reform was based on enabling British Columbians to make their own legal plans using the Representation Agreement Act – and make adult guardianship the last resort. This is sustainable. In fact, politicians spoke in the legislature that Representation Agreements will be more common than Wills – we have a ways to go!

 

It is now 2017. The United Nations Convention on the Rights of Persons with Disabilities (2008) calls for the elimination of adult guardianship. The original changes to BC legislation seem much less radical!

 
The former Public Guardian and Trustee, who was from Ontario, re-wrote the guardianship provisions of the Adult Guardianship Act to bring some modernization to the Patients Property Act. But it wasn’t the same vision as the reform.

The PGT proposed to keep public guardianship – called statutory property guardianship under the Adult Guardianship Act – and this has been put into effect.  The changes also provide ways it can be ended but there are many steps and the key is to prevent it from happening in the first place. Read Nidus’ fact sheet and information at Adult Guardianship Overview.

There are also changes pending (waiting to come into force) some of which seem regressive by today’s standards and by the Seniors’ Advocate’s recommendations in reports about seniors as well as about caregivers.

For example:

Proposed amendments would allow the Public Guardian and Trustee (a state official), when acting as the adult’s property guardian, to ‘pass on this authority’ to someone else they approve of.

It seems quite astounding that BC would have legislation in 2017 that allows a state/public official – the PGT – to hand over an adult’s financial and legal affairs to someone who applies and the PGT approves.

As far as we know, an adult is not considered ‘property’ that can be passed over to someone else.

Such action is further questionable because the PGT becomes an adult’s property guardian through a bureaucratic process involving medical assessments – not a public process that allows for scrutiny and debate.

How this can fit with a human rights approach is a mystery. It would appear to come from an old paradigm and mindset that ‘government knows best’ and adults are like children. The government could repeal these proposed amendments.

Proposed amendments to court-appointed guardians need to be further amended to strengthen the principle that adult guardianship must be the last resort and respect for an adult’s self-determination must be upheld.

For example, applications to court for guardianship must include information on why an existing enduring power of attorney or representation agreement is not sufficient or why one or both (including a representation agreement under section 7 of the Representation Agreement Act) cannot be made.

Adult guardianship orders from another jurisdiction (province, territory or country) must NOT automatically be deemed guardianship orders in British Columbia.

We have never had such legislation in BC before and it is regressive to institute it now. BC is currently the only jurisdiction that has a legal alternative to adult guardianship – the Representation Agreement section 7.

When people move to BC, they need time and opportunity to learn about and to make an RA7.

Other jurisdictions are trying to develop alternatives to guardianship. If BC provides automatic or fast-tracking of guardianship orders from other jurisdictions this undermines such attempts and BC’s compliance with the United Nations Convention on the Rights of Persons with Disabilities.

 

If the pending amendments to the Adult Guardianship Act discussed above are put into force, they will undermine the Representation Agreement section 7, which is a legal alternative to adult guardianship and recognizes that ALL adults are capable – albeit in different ways. Under adult guardianship (no matter how you ‘pretty it up’) adults lose their rights and legally become a non-person.

_____

Nidus will be producing a more detailed analysis about the above and other issues. You can also check with your MLA about the status of these issues.

 

Why are other organizations giving out wrong information about BC laws?

Q − Why are organizations giving out wrong information about BC laws?

 

Get BC-based education on BC-based legislation – Mark your calendar for PERSONAL PLANNING MONTH events, click here – PPM2017

 

We assume that organizations do not intend to give out misinformation but it creates problems for the public when they do.

For example, Dying with Dignity (DWD) and End of Life Planning Canada (ELPC) have published Advance Care Planning Kits for various Canadian provinces. ELPC has been updating the DWD Advance Care Planning Kits and they are made available on the websites of both organizations. We can NOT recommend their use for BC and possibly not for other provinces as the Kit is based on Ontario. See box below for issues.

 

The problem? The legislation is different for each province.  In order to provide accurate and up-to-date information, individuals or groups need to fully understand the context of the province as well as the specific law. It is very difficult for a national group to do this.

Unfortunately some BC organizations, health authorities and professionals are also providing incorrect or incomplete information on BC laws for personal planning.

 

IMPORTANT UPDATE:   End of Life Planning Canada emailed Nidus on June 23/17 to say that they have removed the BC Kit. Their website says it is under review. We thank them for their attention to this matter.

They also informed us that ELPC is the sole owner of the material and other provincial Kits. We know that DWD provides workshops and webinars in BC and some of their information is not accurate.

 

Some specific problems with the BC Kit by DWD/ELPC – now under review. Some of these issues are common in materials by other groups:

• • Title page of Kit – there is no ‘d’ on the end of Advance Care Planning.
  • The Kit provides an ‘Advance Directive form’ – which does not meet the legal requirements of BC law. The  form in the Kit also includes personal care matters, but in BC law an Advance Directive can only be for health care matters. This is extremely misleading to British Columbians. The DWD/ELP version of an Advance Directive is really a type of living will – not a legal document in Canada.
  • The list for Temporary Substitute Decision Makers (TSDMs) is incomplete. This list applies to people who do not have a Representation Agreement and are determined incapable of informed consent to health care.
  • The Kit refers to the ‘Consent and Capacity Board’ – there is no such thing in BC. This is from Ontario.
  • The Kit mixes up physicians’ orders with patient consent. Consent is an ethical and legal concern – it applies to all life areas, including health care matters. Consent is a patient’s right.

  Some treatments undertaken by nurses must be okayed by a physician. These permissions from a physician are referred to as ‘orders.’ The practice of other health professionals also require the sanction of a physician. These are internal issues about professional practices.

  Orders have nothing to do with consent legislation – in any province – as Nidus discussed with lawyer Judith Wahl formerly of the Ontario Advocacy Centre for the Elderly. Nidus will be publishing more about physicians’ orders (e.g. the DNR/No-CPR from and the MOST form). Sign up for the Nidus Newsletter to stay informed.

  • • The Kit uses the term ‘Representation Agreement for Personal Care’ – there is no such legal term in BC. This is inaccurate and creates confusion. Ontario has a document called ‘Power of Attorney for Personal Care’ – it seems that DWD and ELPC simply replaced the term Power of Attorney with Representation Agreement but this is like mixing apples and oranges!!

 

Misinformation creates confusion and more work in the long run – it does not promote best practice. This topic concerns people’s quality of life – the public deserves the very best!

Personal planning (and its subset, advance care planning) is a dynamic and evolving area of law and practice. It is specialized. Nidus’ involvement spans nearly 25 years!

Organizations likely do not appreciate the depth of knowledge that is required and may lack experience with the context – the expectations, needs, and perspective of the public.

 

Made-in-BC legislation needs BC-based education.

Gone are the days when national (Ontario-based) organizations can be experts on provincial (BC) legislation and issues.

British Columbia’s legislation for health care consent and planning for incapacity and end-of-life (Representation Agreements) is particularly unique as it was created through a grass-roots law reform and partnership with the BC government. See below for links to specific resources.

Nidus was set up by community groups involved in the law reform to be a resource on the new legislation – that is our expertise.

This does not mean BC has nothing to learn from other provinces or countries; but aspects of BC’s legislation are recognized internationally as a model – and Nidus is acknowledged as the driver.

BC’s legal alternative to guardianship (the Representation Agreement section 7) was in force for 8 years and served as a model for the United Nations Convention on the Rights of Persons with Disabilities. This is especially relevant given the aging population and the increased incidence of dementia raising concerns in many parts of the world.

 

Get information about BC law from the experts.

Nidus was established by community groups involved in the grass-roots law reform (including the Alzheimer Society of BC, Council of Senior Citizens Organizations, Disability Alliance, and Inclusion BC) – to be a resource on the BC legislation for health care consent and Representation Agreements.

Nidus is a Latin term for nest: a symbol of support and safety.

Nidus has a Practice Advisory Group made up of experts from various fields, including lawyers, who volunteer their time to help ensure our information is accurate and current.

We have shared our expertise with many groups who want to collaborate. Most recently we helped the Lawyer’s Association and the Law Society of BC to update some of their materials. 

 

RESOURCES

Self-help by Videos

Click for Getting Started

Click to watch Planning for Health and Personal Care

Click to watch Planning for Financial and Legal Affairs

 

Interactive Presentations

Click for a list of free webinars/presentations  (Special topics in October for Personal Planning Month)

 

Self-help by web pages

• For adults who are mentally capable of understanding the nature and effect of planning. You may have a recent diagnosis of a health condition or simply want to be proactive. Plan for incapacity and end-of-life, click for Future Path and link to (RA9) form.

• If you are helping an adult whose mental capability to understand is in question (temporarily or ongoing):

           → click if helping due to disability in adulthood such as severe stroke, advanced dementia or other
               conditions.
           → click if helping due to disability at birth or childhood.

 

Review of other resources

There are some errors or omissions in the My Voice booklet from the Ministry of Health. Nidus was asked to provide details and you can review these in our Videos.

 

Health Care Consent Information

How are health care decisions made if you are incapable of informed consent?

Other HCC Resources – including Your Rights as a Patient, Your Rights to Refuse Health Care and more, Notice Required for Major Health Care.

Read our post “Why does the definition of spouse matter for health care consent?”

 

Why does the definition of spouse matter for health care consent?

Q – Why does the definition of spouse matter for health care consent?

In BC, if you are incapable of informed consent to health care, the health care provider must locate a legally valid authority to give or refuse consent on your behalf.

If you do not have a Representation Agreement, your spouse might be selected for temporary authority.

If you made a Representation Agreement that includes authority for health care matters, then the representative may act – you can name your spouse, or anyone you choose.

Making a Representation Agreement is proactive and provides certainty.

Without a representative, health care providers will select someone from a default scheme, outlined in the law, to be the Temporary Substitute Decision Maker (TSDM). 

[If you have no representative but made an Advance Directive that applies to the specific situation at hand, the health care provider may take consent from it before selecting a TSDM. Advance Directives have very limited uses as you can read in the Overview of ADs.]

 Spouse is first on the TSDM list.

 

How is spouse defined in the health care consent legislation?

OLD DEFINITION

“spouse” means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender;

 

NEW (CURRENT) DEFINITION – came into effect March 18, 2013

“spouse” means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender;

 

How is the new definition different?

The term cohabiting has been deleted from the definition of spouse. This changes the emphasis. Those in common law relationships do not have to cohabit to be considered spouses, but the law still says ‘living together in a marriage-like relationship.’ Also, the reference to same gender is not relevant or necessary – common law relationships are not defined by gender.

It is especially important to note that the old and the new definition of spouse does not include a time frame. Other laws, such as the Family Law Act, may require that spouses live together for a specific period of time to be considered spouses for the matters dealt with by that law. This does not apply to the legislation for health care consent. It is always important to consider the requirements of the specific law in question.

 

Spouses living in a marriage-like relationship (common law) may not be cohabiting at times because:

• one spouse is in a care facility or some other residential setting.
• a job requires one or both spouses to work and live out-of-province or away for periods of time (seasonal work, resource industry jobs).
• they are in a second (or third) marriage-like relationship and do not want to give up their own homes – they may decide to live together at each other’s homes and go on vacations together.

This is not legal advice, these examples intend to show how relationships can be quite different today than the past. Laws do change, to catch up with real life. In fact, a recent BC court case about Wills and Estates looks at the definition of spouse in new ways – Connor Estate, 2017 BCSC 978

 

Materials and information from health authorities may be out-of-date.

It appears the Ministry of Health and Health Authorities are still using the old definition in their education for the public and professionals. The My Voice booklet, 2012, has the old definition. You need to check.

It can be hard to keep up with changes to law and practice, especially for this evolving and dynamic area. This is a good reason for the Ministry of Health and Health Authorities to collaborate with Nidus.

The definition of spouse is relevant because Health Authorities rely on and promote the TSDM scheme instead of planning with Representation Agreements. They may think the TSDM scheme is more efficient (because they are in charge of it) – but the extra time it takes adds cost to the health system and taxpayers. 

The health care provider selects a TSDM from a ranked list in the law – and they decide if the person is qualified. You cannot select who will be your TSDM.

If the health care provider decides the person is NOT qualified, they need to select someone else, including the Public Guardian and Trustee (a government official). If the decision concerns major health care, the provider must complete a special Notice Form (extra paperwork).

Although spouse is first on the TSDM list, whether a health care provider allows a spouse to act, if their loved one is incapable, may depend on that health care provider. For certainty and peace of mind – make a Representation Agreement.

 

WHAT CAN YOU DO?

You can choose your representative!

A Representation Agreement is the only document for health care and personal care matters. If you want to choose who you will help you make health care decisions, or act on your behalf, you need to make a Representation Agreement.

You and your spouse/partner can avoid the guesswork and uncertainty of the default scheme by making a Representation Agreement!

A spouse/partner has more authority as your representative than they do as your spouse – even if you are legally married.

 

Don’t forget to register!

Nidus operates the Personal Planning Registry – an idea from the law reform and originally included in the Representation Agreement Act. The BC Government decided not to set up a Registry, but the public wanted it.

The Registry helps with communication. Unlike the Will, which is only looked at after your death, the Personal Planning Registry helps communicate information and documents that affect your quality-of-life!

You can print your own wallet cards and replacements if needed. You can keep information in your record updated. Read more about the Registry.

 

RESOURCES

Nidus has helped thousands of people learn about and make Representation Agreements. Nidus also provides education to legal and health professionals to share our experiences on planning for health and personal care matters – an emerging topic.

Nidus was set up by community groups (including the Alzheimer Society of BC, Council of Senior Citizens Organizations, Disability Alliance, and Inclusion BC) who led the law reform that created health care consent legislation and the Representation Agreement Act.

 

Self-help by Videos

Click for Getting Started

Click to watch Planning for Health and Personal Care

 

Interactive Presentations

Click for a list of free webinars/presentations  (Special topics in October for Personal Planning Month)

 

Self-help by web pages

• For adults who are mentally capable of understanding the nature and effect of planning. You may have a recent diagnosis of a health condition or simply want to be proactive. Plan for incapacity and end-of-life, click for Future Path and link to (RA9) form.

• If you are helping an adult whose mental capability to understand is in question (temporarily or ongoing):

           → click if helping due to disability in adulthood such as severe stroke, advanced dementia or other
               conditions.
           → click if helping due to disability at birth or childhood.

 

Review of other resources

There are some errors or omissions in the My Voice booklet from the Ministry of Health. Nidus was asked to provide details and you can review these in our Videos.

Read our post “Why are organizations giving out wrong information about BC laws?”                 

 

Health Care Consent Information

How are health care decisions made if you are incapable of informed consent?

Other HCC Resources – including Your Rights as a Patient, Your Rights to Refuse Health Care and more, Notice Required for Major Health Care.

 

To view BC legislation

Go to www.bclaws.ca > Laws of British Columbia > Statutes and Regulations > select by first letter of name – for example, ‘H’ for Health Care Consent and Care Facility Admission Act

Community Alert about the new Societies Act — who can be a director?

Q – Can someone with a disability or dementia be a director on the Board of a non-profit under the new BC Societies Act?

A – Yes, UNLESS a court, in Canada or elsewhere, has found the individual incapable of managing their own affairs.

 

Click to read post in PDF format — Community Alert: BC Societies Act

 

What is this about?

We have been alerted to provisions of the new BC Societies Act regarding who is qualified to be a director of a society. These provisions come into effect for pre-existing societies on November 28, 2018. The excerpt with highlights shows the issue. See below for the entire section of qualifications.

44 (3) Despite subsections (1) and (2), an individual is not qualified to be a director of a society if the individual is
(a) found by any court, in Canada or elsewhere, to be incapable of managing the individual’s own affairs,

 

NOTE:  Non-profit organizations are societies incorporated under the BC Societies Act. The BC Cooperative Association Act has the same restriction at section 79 (4) (b) – http://www.bclaws.ca/civix/document/id/complete/statreg/99028_01#section79  

 

Why is this a concern?

The reason for this alert is that we are concerned how non-profit groups may interpret or apply this requirement.

We have heard that some community living agencies are already discussing whether current directors who have a developmental disability (but not a court-appointed committee of estate) might need to be removed from their role as a director and be on an advisory group instead. This is NOT an acceptable response or the correct application of the law – see ACTION box below.

 

Who may be affected?

This could affect people with:

• A developmental disability – self-advocates;
• An acquired brain injury;
• A diagnosis of dementia or other chronic conditions that have the potential to affect cognitive abilities, for example Parkinson’s Disease;
• A psychiatric illness.

It could also affect Microboards and Client Support Groups (under the Ministry of Health Choices in Supports for Independent Living Program–CSIL).

 

Is the new Societies Act in effect now?

Yes, the new Societies Act is in effect now and applies to new societies. Pre-existing societies have until November 28, 2018 to make sure they meet the requirements of the new legislation and to file an application with Societies Online – https://www.bcregistry.ca/societies/

 

What does the restriction mean?

In BC, the term ‘affairs’ is associated with financial affairs. Therefore the BC Societies Act means that if an individual has been found by a court (a judge) to be mentally incapable of managing their financial affairs, they are not eligible to be a director of a society (non-profit organization).

This does not affect a director who is under statutory property guardianship (when the state – the Public Guardian and Trustee – is managing their financial affairs) and does not refer to their capability for other life areas such as health care or personal care.

In BC, the Patients Property Act outlines the procedures for a person (usually a family member but it can also be a corporation such as a Trust Company) to apply to the Supreme Court of BC to be appointed as committee of estate for an adult (age 19 or older).

The judge first has to determine that the adult in question is incapable of managing their own finances. If the judge finds this to be true, the judge can appoint the person who applied or the Public Guardian and Trustee (a government official) to take over the adult’s financial affairs.

Under court-appointed or statutory property guardianship (also called Committeeship in BC), an adult loses their rights – sometimes called civil death. Legally, the adult is a non-person.

In BC, adult guardianship/Committeeship is the LAST RESORT. In BC, a Representation Agreement section 7 (RA7) was created as a legal alternative to adult guardianship for adults who need assistance to manage their financial affairs or any life areas.

The law reform that created BC’s Representation Agreement Act and health care consent legislation is built on a set of principles that require ALL adults to be treated equally and with dignity and respect. The United Nations Convention on the Rights of Persons with Disabilities, Article 12, is based on the BC Representation Agreement Act.

Discussions during the law reform (1989 to 2000) focused on the harm and stigma of labelling people by their disability or diagnosis and equating this with mental incapability. With a Representation Agreement, there is no need to label someone as incapable – a representative is available to assist when needed.

 

ACTION:

Non-profit societies who have directors with developmental disabilities or dementia or other disability or diagnosis need ONLY be concerned if the director’s own financial affairs are currently managed by someone who is appointed as their committee of estate because the director has been found incapable by the Supreme Court of BC (or a court in another province or country – see next page). For a pre-existing society, this requirement applies on November 28, 2018.

It is VERY IMPORTANT that non-profit societies, especially those that serve people with disabilities, chronic illnesses or serious injuries and who are leaders in their fields – such as the Alzheimer Society of BC, Parkinson Society BC, Inclusion BC, Disability Alliance BC, Individualized Funding Resource Centre and others – speak up for the value, need and rights of the people they support to be included in the governance of their organization.

 

What if a court in another province of Canada or elsewhere found the individual incapable?

The wording of the BC Societies Act is very problematic. It is contrary to BC’s legislation governing guardianship – and to the goals of the law reform (started in 1989) and to current practice.

If an adult is found incapable by the court of another province or country and they move to BC, the adult is NOT automatically under guardianship/Committeeship in BC, as the Societies Act implies. These adults may make a Representation Agreement section 7 (RA7), if they need assistance to manage their affairs. The RA7 is a legal alternative to guardianship in BC. With an RA7, the adults retain their rights as equal citizens. The Societies Act seems out-of-step with this.

It is true that BC’s Adult Guardianship Act contains amendments – not yet in effect – that would automatically impose BC’s guardianship law on people when they move to BC, if they were under guardianship from another province or country.

There is no universal definition of capability or incapability – it depends on many factors and can change. Different provinces and countries have different approaches to guardianship and findings of incapability to manage finances. It is not appropriate for policy or legislation to assume a level playing field. In fact, BC’s Representation Agreement Act is a model and many ideas developed during the law reform are now being discussed and tried in other jurisdictions.

Watch for Nidus’ policy paper on ‘Righting the Balance between Guardianship and Self-Determination’ that discusses these and other concerns about BC’s current legislation and pending amendments.

 

What other qualifications must directors meet?

BC Societies Act – Section 44 – Persons qualified to be directors
(1) A person is qualified to be a director of a society only if the person is an individual who is at least 18 years of age.
(2) Despite subsection (1), an individual who is 16 or 17 years of age is qualified to be a director of a society if provided for in the regulations.
(3) Despite subsections (1) and (2), an individual is not qualified to be a director of a society if the individual is
     (a) found by any court, in Canada or elsewhere, to be incapable of managing the individual’s own affairs,
     (b) an undischarged bankrupt, or
     (c) convicted in or out of British Columbia of an offence in connection with the promotion, formation or management of a corporation or unincorporated entity, or of an offence involving fraud, unless
         (i) the court orders otherwise,
         (ii) 5 years have elapsed since the last to occur of
             (A) the expiration of the period set for suspension of the passing of sentence without a sentence having been passed,
            (B) the imposition of a fine,
            (C) the conclusion of the term of any imprisonment, and
            (D) the conclusion of the term of any probation imposed, or
        (iii) a pardon was granted or issued, or a record suspension was ordered, under the Criminal Records Act (Canada) and the pardon or record suspension, as the case may be, has not been revoked or ceased to have effect.

Other references to section 44 (director) from the BC Societies Act:

Section 221 – General offences
(2) A person who becomes or acts as a director of a society and who is not qualified under section 44 [persons qualified to be directors] to be a director commits an offence.

Section 232 – References to members, senior managers and filings
(1) A reference in this Act to
      (b) a director of a society includes an individual who, immediately before the coming into force of this section, was a director, under the former Act, of a pre-existing society and remains a director of the society,

Section 233 – Application of provisions to directors and senior managers of pre-existing societies
Sections 41 [employment of directors], 42 (4) [designation, election and appointment of directors], 44 [persons qualified to be directors], 46 [remuneration and reimbursement of directors] and 61 (3) [senior managers] do not apply in relation to a pre-existing society until the date that is 2 years after the date on which this section comes into force.

 

Comments

There appear to be some inconsistencies with the Societies Act and other BC legislation. The Societies Act allows for 18 year olds to be directors and even 16 and 17 year olds as outlined in the regulation. In BC, the age of adulthood is 19 years or older. The court procedure for determining whether an individual can manage their own affairs applies to adults (age 19 or older). 

You will notice in section 44 that many of the other ways a director may be disqualified have to do with criminal activities. Surely we do not want to equate disability or diagnosis of a chronic illness with criminality?

The previous Society Act did not include the same kind of restriction on directors – http://www.bclaws.ca/civix/document/id/consol30/consol30/96433_01#part3

 

Where did this come from?

The BC Law Institute – an academic legal think tank at UBC – wrote a report (2008) for government with recommendations to ‘harmonize the Societies Act with the Business Corporations Act.’
 
 

THANK YOU to all who serve as directors on the Board of non-profit societies. Directors take on a financial responsibility and bring other valuable skills as well as connections, ideas and experience. But most important is their HUMANITY!

 

RESOURCES FROM NIDUS

Go to www.nidus.ca

• Click link for video Getting Started – just above photos at homepage
• Click Information (top blue menu bar) > Adult Guardianship > AG Overview
• Click Registry (top blue menu bar) > click arrow New to Registry > How-to-Instructions

How can you avoid or end Statutory Property Guardianship?

Did you know that all adults are vulnerable to guardianship? Do you know how to protect yourself? Do you know your rights?

This is a MUST READ for all adults in BC. Nidus thanks The Law Foundation of BC for a grant to produce new resources on statutory property guardianship. It is about human rights!

This is an alert for us all — how we need to help ourselves and others.

 

In BC, adult guardianship is sometimes referred to as Committeeship (an old term). In BC, the age of adulthood is 19 years old.

Statutory property guardianship is also called ‘public’ guardianship. It is when the Public Guardian and Trustee (a public/state official) takes over an adult’s financial and legal affairs by way of a Certificate of Incapability.

A Certificate of Incapability to manage your finances is determined by the health system — assessments by a physician and a qualified health care provider.

 

The Public Guardian and Trustee (PGT) says an assessment might be required if:

• There are concerns that you are not able to manage your financial affairs,
• There is no one else available to assist you, and
• There are important financial matters in your life that need to be taken care of.

The PGT has provided training and published a comprehensive Guide to the Certificate of Incapability Process (166 pages). In its Guide (page 24) the PGT set out principles for assessments including:
 

“Incapability assessments should only be conducted as a last resort and are unnecessary if there are alternate ways of adequately meeting the adult’s needs.”

 

However, physicians and qualified health care providers may sometimes ignore or go beyond these guidelines.

Physicians and other health professionals have not had education on Representation Agreements, particularly the RA7, which is a legal alternative to guardianship for adult’s whose mental capability is currently in question due to illness, injury or disability. An RA7 is one of the key ways to avoid or end statutory property guardianship if an adult needs help now with their financial affairs. See examples in the resources below.

Legal professionals and judges have also not received education on BC’s grass-roots law reform of adult guardianship that led to the development of the Representation Agreement Act for the purpose of making adult guardianship the last resort — due to its serious consequences for the individual and society!

 

What can you do?

• Review Nidus resources listed below — they include examples from people who have been affected by guardianship.
• Get your relevant personal planning documents in place BEFORE a crisis.
• Learn about your rights to end statutory property guardianship — if your financial and legal affairs are currently managed by the PGT or you know someone who is in that situation. Let us know your experiences.

 

RESOURCES — click links

Fact sheet – Rights of Adults to End Statutory Property Guardianship

Video – How to Avoid and Ways to End Statutory Property Guardianship

Overview of Adult Guardianship — learn about loss of rights through different kinds of adult guardianship.

Get Started on Planning – Video or web page information

 

 

What is the Public or User perspective on planning?

Q — What do professionals need to know in order to better communicate and relate to their clients?

Following are key messages for understanding the public’s perspective on planning:

• Personal planning is different from estate planning.
• Power of Attorney ≠  Enduring Power of Attorney.
• Representation Agreements are not simply ‘health care Agreements.’
• The Personal Planning Registry – communicating the right information to the right people at the right time!

See Resources below for details on each of the above points.

 

On April 6, 2017, the Society of Trust and Estate Practitioners (STEP) in BC held an event called “Powers of Attorney and Health Care Agreements from Three Unique Perspectives: Private Practice, Trust Company and the Public Guardian and Trustee.”

Nidus suggests there is ANOTHER perspective – the public!

And perhaps a better title for BC: “Personal Planning: Enduring Powers of Attorney and Representation Agreements”

At first we thought the STEP title was due to the presentation having to address other provinces – but this does not appear to be the case.

Even if the event had a national focus, there are still important distinctions that need to be made to help STEP members better relate to the interests and needs of their clients. See below for information on other provinces and territories that Nidus compiled.

Nidus is a resource for professionals and practitioners who want to learn more about the needs and interests of their clients and potential clients. Below are links to information for those who are interested in learning more.

 

RESOURCES – click links

Details of the public’s perspective on planning

Videos on personal planning and more

Cross-Canada Information

NEW fact sheet – Rights of Adults to End Statutory Property Guardianship
 

How can physicians support caregivers?

Q – How can BC physicians help patients and their supporters/caregivers?

The most common response we hear is that physicians need to learn about Representation Agreements. This will ease the burden on caregivers and most important, helps the patient. Read our feedback to Doctors of BC – first link under Get Informed at the end of this article.

Nidus was interested to learn that Doctors of BC (formerly the BCMA, a voluntary association for physicians who practice in BC) recently announced a campaign to emphasize caregivers’ needs. As we wrote in our letter to Alan Ruddiman, president of Doctors of BC, their initiative harkens back to the many discussions we had during the development of the Representation Agreement Act (starting in 1989).

One of the drivers for Representation Agreements, supported unanimously by the legislature, was to give legal status to family and friends (caregivers) when dealing with the health and residential care systems – because they were not valued or listened to as advocates for the adults they supported.

The Doctors of BC has produced a Tool Kit for Physicians to Support Family Caregivers. While the sentiment is to be applauded, the tool kit shows significant gaps in understanding about BC’s health care consent legislation and Representation Agreements – the legally enforceable planning document in BC for health and personal care matters. The Tool Kit seems to focus on treating caregivers as patients, rather than listening to caregivers as advocates.

Nidus has invited the Doctors of BC to meet with us and our Practice Advisory Group, which is comprised of legal, community and other experts who volunteer their time and expertise to be a resource to various sectors and disciplines on implementation of the BC’s health care consent and planning legislation.

Collaboratively, we can ensure adults/patients and caregivers have accurate, up-to-date and independent information about their rights and responsibilities in health care decision making.

 

GET INFORMED

Click to read the Nidus review of the Doctors of BC Tool Kit.

Click to read more information on BC’s legislation for Health Care Consent.

Watch videos about Representation Agreements and how to make a legally enforceable document for health and personal care – at Nidus YouTube channel.

The Parkinson Society BC uses the term ‘care partners’ -this indicates the reciprocity that is part of caring relationships! Click to read their Viewpoints newsletter and article on Personal Planning.

 

I moved to BC – can I use the documents I made in Ontario?

Q – Can you help? I have a will and a Powers of Attorney that was made in Ontario but I moved to BC recently. Are these documents legal in BC?

Nidus does not have expertise in Wills and you are best to contact a lawyer to get advice about using your Ontario Will in BC.

With regard to the Powers of Attorney made in Ontario – they can be recognized in BC if a lawyer in Ontario completes a Certificate of Extrajurisdictional Solicitor.

Ontario has Continuing Power of Attorney for Property to cover financial and legal affairs. This document can be recognized as an Enduring Power of Attorney in BC.

Ontario has Power of Attorney for Personal Care to cover health and personal care matters. This document can be recognized as a Representation Agreement Section 9 in BC.

For more information and a copy of the Certificates (there is one for each type of document) –Hover on My Documents in top blue menu bar – click Using Documents – scroll down to the end of the page.

 

What if I can’t find a lawyer in Ontario to sign the Certificate?

If you cannot find a lawyer in Ontario to sign the Extrajurisdictional Certificate, you might decide to make the BC documents. (If you have financial property/assets still in Ontario, you might want to keep the Continuing Power of Attorney for Property to deal with those.)

1. If you are mentally capable of understanding the documents you are making, click on the middle photo at the Nidus homepage – Planning on the Future Path; OR
2. If you are helping someone whose capability to understand the nature and effect of the documents, click on the third photo at the Nidus homepage – Need Help Today Path.

 

What are the planning documents called in other provinces?

Nidus made up short presentations showing the key legal planning documents in other provinces and territories of Canada. Click on Get Help in the top blue menu bar – click on Cross Canada Info.

 

Do I qualify for medical assistance in dying? How do I request it?

Read the Nidus fact sheet (link below) on medical assistance in dying (MAiD) to review the eligibility requirements based on recent amendments/changes to the Criminal Code of Canada.

MAiD is new and it is part of a much larger context dealing with health care consent and patients’ rights. The fact sheet also discusses existing legislation in BC that gives patients the right to refuse consent to health care you are offered, even if it may result in your death.

It is also important to know that you can authorize someone to consent on your behalf if you are incapacitated. Under BC law, this will be a representative named in a Representation Agreement.

 

UPDATE Aug. 23/16 – We contacted the College of Physicians and Surgeons of BC in advance of releasing our fact sheet to get their input on the forms they produced for physicians. We found some discrepancies between the BC forms and the federal legislation. We also noticed that some health authorities posted the physician forms on their websites and are making various changes of their own—likely as they have also noted discrepancies. The College got back to us acknowledging concerns about these different versions. The College also said they have passed on our feedback to a provincial working group that is planning to make forms available to the BC public. We do not have a contact for this working group.

 

Click to read the MAiD fact sheet

Click to read an in-depth review of the BC forms for MAiD

 

Thank you to the Nidus Practice Advisory Group make up of legal and community experts for their input. A special thanks to our summer student and third year law student at UBC, Nahal Iranpour, for her research and analysis.

 

Who is Nidus?

• Nidus was established in 1995 by other non-profit groups to be a resource on Representation Agreements and personal planning.
• We collaborate with health care and legal professionals and with government, but we are independent and our mandate as a non-profit charity is to serve the public.
• Nidus does not have a position on MAiD. Our objective is to provide access to accurate and current information. We rely on the input and feedback we receive from the public and concerned third parties.
• We have a Practice Advisory Group including legal and community experts who help us to analyze current issues and promote best practices.

Can you support Nidus?

Nidus does not receive funding from government. We sometimes receive a grant from other sources for short-term projects. We rely on donations and modest fees for service to cover ongoing activities and operating costs.

Please consider making a donation by cheque or online through Canada Helps. We have charitable status and you will receive a receipt for income tax purposes.

Canada’s Law for Medical Assistance in Dying

June 17, 2016 – MAiD is accessible under Canadian legislation

 

“Nidus does not have a position/lobby on this issue — we provide education for the public and professionals to be informed.”

 

An Act to Amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) – known as Bill C-14 has received Royal Ascent and this law now governs medical assistance in dying in Canada. Sections 4 and 5 (about providing and collecting relevant information) of the new law are to be proclaimed later.

Click to view the final version of Bill C-14-4.

 

Bill C-14 was amended just before it became law. You can view Nidus’ chart showing the Senate amendments and the Government’s response.

• On May 31, 2016, the House of Commons passed Bill C-14, as amended at third reading. The Bill was titled Bill C-14-3.
• On Wednesday, June 15, 2016, the Senate passed amendments to Bill C-14 and sent them to the House of Commons/Government for consideration.
• On Thursday, June 16, 2016, the House of Commons/Government voted to accept some of the amendments and sent this message to the Senate.
• On Friday, June 17, 2016 the Senate passed Bill C-14 at third reading. You can listen to the Senate discussion at this audio link.

 

This federal law sets out the eligibility and other requirements for medical assistance in dying. The federal government will make some regulations to add detail to certain aspects of the law. The BC government is also expected to amend existing provincial legislation and/or provide new legislation with regard to this matter.

 

BC’s Health Care Consent and Care Facility Admission Act sets out an adult’s rights to give, refuse and withdraw (stop) consent. It allows adults capable of informed consent to refuse health care that is offered even if it results in death [sec 4(a)].

The law also outlines the elements of informed consent and how incapability is determined [sec.7 & 8].

• See Nidus fact sheet – see blue menu bar above > Information > Health Care Consent > More HCC Resources > Health Care Consent: Your Rights and the Law

In our previous post, Nidus noted a few aspects of BC’s existing health care consent legislation that might need amendment or that are consistent with aspects of Bill C-14.

• According to the federal legislation for MAiD, someone must be at least 18 years or older. BC’s health care consent legislation currently refers to ‘adults.’ (The age of adulthood in BC is 19 years.) Federal legislation also requires a person to give consent specifically to medical assistance in dying. This was not part of any provincial legislation.
• Federal legislation for MAiD requires a physician or nurse practitioner to “take all measures necessary to assist a person who has difficulty communicating to understand the information and communicate their decision.” BC’s legislation for health care consent includes a duty to communicate in an appropriate manner [sec 8].

 

For more background on the law and the groups involved, see the Ask Joanne post for June 6, 2016 (without MAiD legislation, the Supreme Court of Canada declaration based on the Carter v. Canada decision and guidelines of regulatory bodies filled the gap).

 

Thank you to Courthouse Libraries BC, in particular Alex McNeur, for helping us locate information about the Senate amendments and understand the procedures regarding federal Bills to become legislation in this somewhat unique situation. Thanks also to Nahal Iranpour, a third year law student at UBC who is working at Nidus this summer thanks to a grant from the federal government Canada Summer Jobs program.

 

Information

FEDERAL GOVERNMENT WEBSITE INFORMATION ON MAID

Canada Health website for Medical Assistance in Dying

 

PLANNING FOR END-OF-LIFE, INCAPACITY AND OTHER SUPPORT NEEDS

Read Types of Planning

Free Presentations

 

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