Wednesday, January 10, 2007

CCELS' Comparative Analysis of Adult Guardianship Laws

The Canadian Centre for Elder Law Studies has published a report entitled A Comparative Analysis of Adult Guardianship Laws in B.C., New Zealand and Ontario.

The report sets out the following recommendations for British Columibia:

1. The meaning and consequences of incapacity, as the term is used in a variety of different contexts, should be clarified.

2. Uniform guidelines should be established for all capability assessments. Legal and medical professionals need clear direction in order to best serve their clients, the community and the Courts, especially in delicate areas such as incapacity issues.

3. Best practices with respect to capability assessments should be established.

4. Modern guardianship legislation should:

a. reflect the principle of minimal interference with an adult’s autonomy;

b. incorporate the principle of individual referencing, mandating that an adult’s behaviour be viewed in the context of his or her unique, individual characteristics;

c. give the adult rights advice when served with notice of an application regarding the procedure for guardianship applications, the possible consequences if the application is successful, and the right to oppose the application, etc.;

d. incorporate a system of accessible legal representation for adults facing incapacity proceedings;

e. incorporate preliminary hearings and/or a capacity assessment review board; and

f. specifically provide that adults deemed to be incapable can nevertheless instruct counsel for the purposes of appealing that determination. This recommendation entails consequential amendments to the Supreme Court Rules of Court, and changes to the Law Society’s Professional Conduct Handbook.

This report is timely. The Provincial Government may be pass Bill 32, amending British Columbia's adult guardianship legislation this spring.

The authors of the report comment on Bill 32 as follows:

Bill 32 goes a long way toward creating a modern guardianship regime for BC. It redresses the paternalism of PPA [Patients Property Act] by repealing that statute and replacing it with more nuanced legislation. This new legislation refers to adults as adults, rather than as patients, and, unlike the PPA, is concerned with support and decision making rather than simply protection of the adult’s estate. However, it falls short in a number of critical aspects:

• it does not fully address issues of procedural fairness and Charter rights in the context of Court-ordered guardianships, particularly with respect to the issue of
legal representation;

• it does not define incapacity or incapability or address the fact that the term is used inconsistently in different statutes; and

• it fails to simplify and clarify the interrelationships among the various personal planning instruments.

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