Forbes v. Millard Estate: Court Applies Anti-Ademption provision of the Wills, Estates and Succession Act

One of the pitfalls of leaving specific property to a beneficiary in your will, is that you might not own that property on your death. You may specify in your will that you are leaving an item of sentimental value to your niece, or you may specify that you are leaving property of substantial value such as your home to a child. But what happens if on your death, you no longer own any property of that description? In many cases, the gift is said to adeem, which means that your beneficiary does not receive the property, or anything in substitution for the property (unless you provided a substitute gift in your will).

There are exceptions. One of those exceptions is set out in section 48 of the Wills, Estates, and Succession Act. The purpose of this provision is to provide for a financial gift to a beneficiary of specific property, when that property has been disposed of by someone acting on behalf of the will-maker, rather than by the will-maker himself. This anti-ademption provision applies when the will-maker becomes mentally incapable of managing his own affairs, and his attorney under an enduring power of attorney, or court-appointed committee, decides to sell the property that was subject to a specific gift in the will. Section 48 reads as follows:

Relief from disposition of property

48  (1) In this section,“proceeds” means the gross proceeds at the time of disposition, and includes

(a) non-monetary consideration, and
(b) in the case of a gift, the fair market value of the gift.

(2) If property that is the subject of a gift in a will is disposed of by a nominee, the beneficiary of the gift is entitled to receive from the will-maker's estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.

(3) Subsection (2) does not apply if

(a) the disposition is made to carry out instructions given by the will-maker at a time when the will-maker was legally capable of giving instructions, or
(b) a contrary intention appears in the will.

Mr. Justice Blok’s decision in Forbes v. Millard Estate, 2017 BCSC 361, illustrates how section 48 works. Helen Millard made a will on September 5, 2000. In her will, she left her daughter, Cherie Forbes, “any property which I may own and be using as a home at the date of my death.” When she made her will, Ms. Millard owned a home on Hornby Island, British Columbia, which he later sold. She purchased a new home in Courtney, British Columbia. Sadly, her mental functioning deteriorated to the point where she could no longer manage her own financial affairs. In September 2005, her other two children, Maureen Bryce and Richard Millard, acting as her attorneys under an enduring power of attorney sold Ms. Millard’s home in Courtney to pay for her expenses. When she died on February 9, 2015, Ms. Millard no longer owned a home.

Ms. Forbes applied to court for a declaration that she is entitled to the sale proceeds of the Courtney home pursuant to section 48.

Ms. Bryce and Mr. Millard argued that because section 48 did not come into effect until March 31, 2014, after Ms. Millard made her will, and after they sold the Courtney home, the anti-ademption provision does not apply in this case.

Mr. Justice Blok held that section 48 does apply, because under the transition rules of the Wills, Estates and Succession Act, the relevant date for determining whether section 48 applies is the date of the will- maker’s death. Because Ms. Millard died after March 31, 2014, section 48 applies, and Ms. Forbes is entitled to the sale of the Courtney home.

Standard Provision Representation Agreements

I have had people come to me after they, or sometimes their family, have been told by a health care provider that they need a power of attorney. Usually in these cases, the reason the health care provider has advised a patient to get a power of attorney is because the patient had already declined mentally, and needs assistance with financial decisions. In some cases, the patient may still be functioning well enough to make an enduring power of attorney, but in others it is too late: the patient has declined to the point where he or she does not have the capacity to make an enduring power of attorney.

In British Columbia, when someone has lost the capacity to manage his or her finances, one option available for a relative or friend is to apply to the court to be appointed as a committee for the incapable person. I have written about committeeships before. Although in some cases necessary, the process is intrusive, usually takes a few months, and is relatively costly.

There is another alternative available in some circumstances: a representation agreement with the standard provisions in section 7 of the Representation Agreement Act.

I usually draft representation agreements for clients in conjunction with enduring powers of attorney. Usually, the representation agreement allows my client to appoint a representative to assist with or make personal and health care decisions for her if she declines and needs assistance, while the enduring power of attorney allows my client to appoint someone to handle her property and finances for her.

But section 7 of the Representation Agreement Act provides that you can give a representative some powers over financial decisions. Section 7(1) provides:

 7  (1) In a representation agreement made under this section, an adult may authorize his or her representative to help the adult make decisions, or to make decisions on behalf of the adult, about any or all of the following:

(a) the adult's personal care;

(b) routine management of the adult's financial affairs, including, subject to the regulations,

(i)   payment of bills,
(ii)   receipt and deposit of pension and other income,
(iii)   purchases of food, accommodation and other services necessary for personal care, and
(iv)   the making of investments;

(c) major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act, but not including the kinds of health care prescribed under section 34 (2) (f) of that Act;

(d) obtaining legal services for the adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the adult's behalf.

The level of mental functioning required to meet the legal criteria for making a representation agreement with the powers set out in section 7 is lower than that required to make an enduring power of attorney.

Section 12 (2) of the Power of Attorney Act provides that a person is not capable of making an enduring power of attorney if that person (referred to as the “adult” in the legislation) cannot  understand all of the following:

(a) the property the adult has and its approximate value;

(b) the obligations the adult owes to his or her dependants;

(c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;

(d) that, unless the attorney manages the adult's business and property prudently, their value may decline;

(e) that the attorney might misuse the attorney's authority;

(f) that the adult may, if capable, revoke the enduring power of attorney....”

In contrast section 8 of the Representation Agreement Act provides:

Test of incapability for standard provisions

8  (1) An adult may make a representation agreement consisting of one or more of the standard provisions authorized by section 7 even though the adult is incapable of

(a) making a contract,

(b) managing his or her health care, personal care or legal matters, or

(c) the routine management of his or her financial affairs.

(2) In deciding whether an adult is incapable of making a representation agreement consisting of one or more of the standard provisions authorized by section 7, or of changing or revoking any of those provisions, all relevant factors must be considered, for example:

(a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions;

(b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;

(c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;

(d) whether the adult has a relationship with the representative that is characterized by trust.

There are of course some who won’t meet the lower threshold of capacity to make a representation agreement with the standard provisions, but I suspect that many who have recently been diagnosed with dementia will be able to do so, even if they no longer have a sufficient understanding of their assets to make an enduring power of attorney.

The financial powers you may give a representative in section 7(1)(b) are not as extensive as the powers you may give an attorney in an enduring power of attorney. But they are fairly extensive, and in many cases, may be sufficient. Section 2 of the Representation Agreement Regulation defines routing management of the adult’s financial affairs as follows:

2  (1) For the purposes of section 7 (1) (b) of the Act, the following activities constitute "routine management of the adult's financial affairs":

(a) paying the adult's bills;

(b) receiving the adult's pension, income and other money;

(c) depositing the adult's pension, income and other money in the adult's accounts;

(d) opening accounts in the adult's name at financial institutions;

(e) withdrawing money from, transferring money between or closing the adult's accounts;

(f) receiving and confirming statements of account, passbooks or notices from a financial institution for the purpose of reconciling the adult's accounts;

(g) signing, endorsing, stopping payment on, negotiating, cashing or otherwise dealing with cheques, bank drafts and other negotiable instruments on the adult's behalf;

(h) renewing or refinancing, on the adult's behalf, with the same or another lender, a loan, including a mortgage, if

(i)   the principal does not exceed the amount outstanding on the loan at the time of the renewal or refinancing, and
(ii)   in the case of a mortgage, no new registration is made in the land title office respecting the renewal or refinancing;

(i) making payment on the adult's behalf on a loan, including a mortgage, that

(i)   exists at the time the representation agreement comes into effect, or
(ii)   is a renewal or refinancing under paragraph (h) of a loan referred to in that paragraph;

(j) taking steps under the Land Tax Deferral Act for deferral of property taxes on the adult's home;

(k) taking steps to obtain benefits or entitlements for the adult, including financial benefits or entitlements;

(l) purchasing, renewing or cancelling household, motor vehicle or other insurance on the adult's behalf, other than purchasing a new life insurance policy on the adult's life;

(m) purchasing goods and services for the adult that are consistent with the adult's means and lifestyle;

(n) obtaining accommodation for the adult other than by the purchase of real property;

(o) selling any of the adult's personal or household effects, including a motor vehicle;

(p) establishing an RRSP for the adult;

(q) making contributions to the adult's RRSP and RPP;

(r) converting the adult's RRSP to a RRIF or annuity and creating a beneficiary designation in respect of the RRIF or annuity that is consistent with the beneficiary designation made by the adult in respect of that RRSP;

(s) making, in the manner provided in the Trustee Act, any investments that a trustee is authorized to make under that Act;

(t) disposing of the adult's investments;

(u) exercising any voting rights, share options or other rights or options relating to shares held by the adult;

(v) making donations on the adult's behalf to registered charities, but only if

(i)   this is consistent with the adult's financial means at the time of the donation and with the adult's past practices, and
(ii)   the total amount donated in any year does not exceed 3% of the adult's taxable income for that year;

(w) in relation to income tax,

(i)   completing and submitting the adult's returns,
(ii)   dealing, on the adult's behalf, with assessments, reassessments, additional assessments and all related matters, and
(iii)   subject to the Income Tax Act and the Income Tax Act (Canada), signing, on the adult's behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii);

(x) safekeeping the adult's documents and property;

(y) leasing a safety deposit box for the adult, entering the adult's safety deposit box, removing its contents and surrendering the box;

(z) redirecting the adult's mail;

(aa) doing anything that is

(i)   consequential or incidental to performing an activity described in paragraphs (a) to (aa), and
(ii)   necessary or advisable to protect the interests and enforce the rights of the adult in relation to any matter arising out of the performance of that activity.

But there are limitations, the most significant one in most cases, is that the standard provision representation agreement may not include a power to dispose of real estate. In cases where the person suffering from mental disability has a home that needs to be sold, it will be necessary to apply for a committeeship if that person no longer has the capacity to make the transaction herself.

The limitations are set out in section 2 (2) of the Representation Agreement Regulation as follows:

(2) For greater certainty, the activities that under subsection (1) constitute "routine management of the adult's financial affairs" do not include any of the following:

(a) using or renewing the adult's credit card or line of credit or obtaining a credit card or line of credit for the adult;

(b) subject to subsection (1) (h), instituting on the adult's behalf a new loan, including a mortgage;

(c) purchasing or disposing of real property on the adult's behalf;

(d) on the adult's behalf, guaranteeing a loan, posting security or indemnifying a third party;

(e) lending the adult's personal property or, subject to subsection (1) (v), disposing of it by gift;

(f) on the adult's behalf, revoking or amending a beneficiary designation or, subject to subsection (1) (r), creating a new beneficiary designation;

(g) acting, on the adult's behalf, as director or officer of a company.

There are also limitations on the powers that the maker of a representation agreement under section 7 may give to the representative over health care and personal care. For example, you cannot give the representative the power under section 7 to make a decision to refuse health care necessary to preserve life.

As a safeguard, someone making a standard provision representation agreement under section 7 must also name a monitor, unless the representative is the person’s spouse, the Public Guardian and Trustee, a trust company, a credit union, or unless there are two representatives who are required to act unanimously. The monitor may review the accounts and records that the representative is required to keep.

A representation agreement made under section 7 is a good option for someone who has declined to the point where she can no longer make an enduring power of attorney, but still has sufficient functioning to choose who can make or assist her with financial decisions. It is less expensive and intrusive than a court appointed committee. But the powers the representative has under section 7 will not be sufficient if the person suffering from mental disability owns real estate that needs to be sold.

Court of Appeal Dismisses Appeal in Bentley v. Maplewood Seniors Care Society

In reasons for judgment released today in Bentley v.Maplewood Seniors Care Society, 2015 BCCA 91, The British Columbia Court of Appeal has upheld Mr. Justice Greyell’s decision dismissing a petition brought by Margaret Anne Bentley’s family seeking declarations requiring the care facility she was in to discontinue providing food and water to her.

I have written about Mr. Justice Greyell’s decision in greater depth in my previous post here, but in a nutshell Mrs. Bentley is suffering from the final stages of Alzheimer’s disease, and is incapable of communicating, walking, meeting her own care needs, or eating. She is offered nutrition by staff placing a spoon to her mouth. If she opens her mouth, she is given the food. If not, she is prompted a second time, but if she still does not accept the food, the staff do not attempt to force her to eat. Based on her communications at a time when she was clearly capable of making her own decisions, her family were of the view that she would not wish to be kept alive on this basis.

In the Supreme Court of British Columbia, Mr. Justice Greyell applied the presumption that a person is capable of making his or her own personal care decisions, and found that the family had not rebutted the presumption that Mrs. Bentley, despite her limitations, was capable of deciding whether to eat and drink when she either opened her mouth or kept her mouth closed when prompted.

Mr. Justice Greyell also considered whether British Columbia’s substitute decision making statutes authorized a substitute decision maker to make a decision to refuse personal care necessary to preserve life, and concluded, that in contrast to health care in some circumstances, the legislation did not allow a substitute decision maker to refuse personal care if doing so would cause the person to die.

The family members who had petitioned the Court appealed on the following grounds:

A.         The learned Chambers Judge erred in law by failing to address whether [Mrs. Bentley] had consented to the process of “prodding” and “prompting” that precedes her being fed by Maplewood.

B.         The learned Chambers Judge erred in law by placing the onus on [Mrs. Bentley] to prove a “clear refusal of consent”, rather than placing the onus on Maplewood to prove consent by [Mrs. Bentley] to being “prodded” and “prompted”.

C.        The learned Chambers Judge erred in law by failing to find that, in the absence of consent to the process described above, a battery is committed by Maplewood when it prods and prompts [Mrs. Bentley].

A person commits the tort of battery if he or she touches another in a non-trivial manner without the other’s consent.

Madam Justice Newbury for the Court of Appeal rejected all three grounds, finding that Mr. Justice Greyell did at least implicitly find that she was consenting, communicating her consent through her behaviour in accepting or not accepting nutrition. She also rejected the argument that the Mr. Justice Greyell placed the onus on the Petitioners to prove that Mrs. Bentley did not consent.

The Court of Appeal decided this case on the relatively narrow grounds that the evidence supported Mr. Justice Greyell’s finding that Mr. Bentley is consenting to the provision to her of food and water. The Court of Appeal did not expressly decide whether the balance of his reasons deciding that Mrs. Bentley’s family could not require the care facility to stop providing her with nutrition in this manner even if she were incapable of deciding whether to accept the provision of food and drink.

Madam Justice Newbury wrote at paragraph 18:

[18]        In closing, I emphasize again that the scope of this appeal was a narrow one and that none of the chambers judge’s conclusions regarding the documents executed by Mrs. Bentley, the applicability of the various statutes to them, or the determination of her wishes was appealed. I recognize the terribly difficult situation in which Mrs. Bentley’s family find themselves and I appreciate the disappointment they must feel in being unable to comply with what they believe to have been her wishes and what they believe still to be her wishes. It is a grave thing, however, to ask or instruct caregivers to stand by and watch a patient starve to death. It should come as no surprise that a court of law will be assiduous in seeking to ascertain and give effect to the wishes of the patient in the ‘here and now’, even in the face of prior directives, whether clear or not. This is consistent with the principle of patient autonomy that is also reflected in the statutes referred to earlier (see especially s. 19.8 of the HCCCFA Act), and in many judicial decisions, including Carter v. Canada(Attorney General) 2015 SCC 5, where the Court emphasized that when assisted suicide is legalized, it must be conditional on the on the “clear consent” of the patient. (Para. 127.)

Termination of Statutory Property Guardianship

I have written two previous posts on British Columbia’s new statutory property guardianship legislation and regulation coming into effect on December 1, 2014, the first dealing with the procedures for issuing a certificate of incapacity pursuant to which the Public Guardian and Trustee becomes the statutory property guardian of a person incapable of managing his or her own finances, and the second dealing with the criteria to be applied in determining whether a person is incapable.

In this post, I will summarize how a statutory property guardianship may be terminated.

Section 34 of the Adult Guardianship Act provides that an adult who has a statutory property guardian must be reassessed if any of the following apply:

1.                  “the adult is receiving psychiatric treatment in a facility designated under the Mental Health Act and the adult is discharged,”

2.                  the statutory property guardian decides that a reassessment should occur,

3.                  “the adult requests a reassessment and has not been reassessed within the preceding 12 months,” or

4.                  the court orders a reassessment.

This section gives a person in respect of whom a certificate of incapability has been issued the right to have a reassessment annually.

Under section 37 (3), if as a result of the reassessment, a qualified health care provider determines that the adult is capable of managing the adult’s financial affairs, and the health authority designate accepts that determination, then the statutory property guardianship ends, and the adult may then manage his or her own finances.

A second way that a person in respect of whom a certificate of incapability has been issued may terminate the statutory property guardianship is by making a successful application to court.

If the Public Guardian and Trustee as the statutory property guardian is satisfied that the statutory property guardianship is no longer necessary, she may also end it on giving the patient notice.

Finally, if the court appoints a committee for the adult under the Patients Property Act, then the statutory property guardianship ends, but the effect is to transfer the management of the adult’s finances to the committee. Under this provision a relative or friend of the adult in respect of whom a certificate of incapability has been issued may take over management from the Public Guardian and Trustee, by making an application to court.

It should be noted that the provisions for terminating a statutory property guardianship will apply to certificates of incapability that were issued under the Mental Health Act, before the new legislation and regulation comes into effect. 

Test of Incapability in New Statutory Property Guardianship Regulation

In my post last week, I wrote about the new statutory property guardianship legislation and regulation coming into effect on December 1, 2014, under which the Public Guardian and Trustee may be appointed a statutory property guardian for a person who is not capable of managing his or her own financial affairs. I wrote specifically about the procedures for determining whether a certificate of incapability should be issued and the Public Guardian and Trustee appointed in respect of someone who may not be capable of making financial decisions.

One welcome change is the introduction of a test of incapability in the new Statutory Property Guardianship Regulation. It is set out in section 9:

Test of Incapability 

9 (1) An adult is incapable of managing the adult's financial affairs if, in the opinion of a qualified health care provider, any of the following apply:

(a) the adult cannot understand the nature of the adult's financial affairs including the approximate value of the adult's business and property and the obligations owed to the adult's dependants, if any; 

(b) the adult cannot understand the decisions that must be made or actions that must be taken for the reasonable management of the adult's financial affairs; 

(c) the adult cannot understand the risks and benefits of making or failing to make particular decisions, or taking or failing to take particular actions in respect of the adult's financial affairs; 

(d) the adult cannot understand that the information. referred to in this subsection applies to the adult;

(e) the adult cannot demonstrate that hear she is able to implement, or to direct others to implement, the decisions or actions referred to in paragraph (b). 

(2) For the purposes of section 34 of the Act, a qualified health care provider must consider the changes, if any, in the adult's incapability since the previous assessment and the adult's understanding of those changes. 

Although this provision does not directly apply to applications for the appointment of a committee under the Patients Property Act, the above criteria could be applied to an application for an order declaring a person incapable of managing his or her affairs under that Act. A lawyer asking for a physician's opinion on capacity could ask the physician to address those criteria. This may provide more nuanced and clearer evidence to assist the court in making a determination of capacity under the Patients Property Act.

New Statutory Property Guardianship Legislation and Regulation Coming into Effect December 1, 2014

There are some significant changes coming into effect on December 1, 2014 to British Columbia’s adult guardianship legislation. The changes will primarily effect both how the Public Guardian and Trustee is appointed to manage the property of persons who are considered to be incapable of managing their financial affairs, and the rights of those persons.

Currently, the Public Guardian and Trustee may be appointed to manage the financial affairs of a person who is incapable either through a certificate under the Mental Health Act, or through a court application under the Patients Property Act.

Effective December 1, 2014, the process by which the Public Guardian and Trustee may be appointed by certificate under the Mental Health Act will be replaced by provisions in Part 2.1 of the Adult Guardianship Act, and the Statutory Property Guardianship Regulation.

The new process appears to provide more procedural protections and more transparency when the Public Guardian and Trustee assumes responsibility for a person’s (or to use the language of the new provisions, the “adult’s”) financial-decision making. In this post I will outline the new process.

The Public Guardian and Trustee will become the "statutory property guardian" when a “health authority designate” issues a certificate of incapability.  Before the health authority designate may issue a certificate an assessment must be completed consisting of two components: a medical component consisting of a physician’s medical assessment, which looks at the medial diagnosis and prognosis, and a functional component, which may be conducted by a physician or other health care provider, such as a nurse, or social worker, and which consists of an evaluation of the adult’s understanding and ability to manage his or her finances.  

Unless there is a risk of serious physical or mental harm or significant damage or loss to the adult’s property, the person responsible for each component must inform the adult of the purpose of the assessment, that the adult may have someone else present, and after the assessment is completed, the adult must be offered a copy of the assessment report.

Once the assessment is completed, if the health authority designate considers it appropriate to issue a certificate of incapability then he or she must give the adult, and the adult’s spouse or other near relative notice of his or her intent to issue the certificate, and the adult, spouse or near relative must be given at least 10 days to respond.

If after considering any responses, the health authority designate decides to issue a certificate of incapability, the Public Guardian and Trustee must give notice to the adult that she has been appointed as the adult’s statutory property guardian, and the adult may within 40 days of receipt of the notice request a second assessment.

If after the second assessment, the health care provider responsible for the second assessment considers the adult to be incapable, then the adult may apply to the Supreme Court of British Columbia for review of the determination.

It should be noted that an assessment that an adult is incapable of managing his or her financial affairs will not necessarily lead to a certificate of incapability. If, for example, if the health authority designate is aware that the adult has made an enduring power of attorney, and the person appointed is both willing to act and is complying with the duties, then the health authority designate should not issue a certificate.

I plan to write some future posts on the new legislation and regulation including the criteria for determining if a person is incapable, and the process for terminating a certificate of incapability.

Bentley v. Maplewood Seniors Care Society

Margaret Anne Bentley lives in the Maplewood care facility in the Fraser Valley of British Columbia. She was diagnosed with Alzheimer’s disease in 1999, and her condition has deteriorated to the point where she moves little, does not speak at all, has her eyes closed most of the time, shows no indication that she recognizes her family, and cannot feed her self.

Staff at the nursing home feed her by placing a spoon or glass by her lower lip. Sometimes she accepts the nourishment or drink, and swallows, and at other times, she does not. If she does not accept it, staff will prompt her again, but they do not force her to eat or drink.

Mrs. Bentley’s condition stands in contrast to her previously vibrant life, during which she had a career as a nurse.

She had written a statement setting out her wishes in 1991 that in which she wrote that if “the situation should arise that there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by artificial or ‘heroic measures.’”  The statement included a provision that said “No nourishment or liquids.”

After her diagnoses, she described to her husband symptoms that she observed as a nurse in patients with dementia, and told him not to let that happen to her.

She also signed another document that similarly provided that if she was not able to communicate and “suffered from severe physical illness, or from impairment expected to cause me severe distress or render me incapable of rational existence,” she wanted to “be allowed to die and not be kept alive by artificial means…,” but that she would “accept basic care.”  In this second document she also stated that she wished for her daughter Katherine Hammond to be consulted if there were any uncertainty about her wishes.

Her husband and her daughter Katherine Hammond brought a petition to the Supreme Court of British Columbia seeking an order that Mrs. Bentley not be given any nourishment or liquids. The society that operates the nursing home and the Fraser Health Authority opposed the application.

In Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165, Mr. Justice Greyell considered the following issues as set out in paragraph 34:

1)    Is Mrs. Bentley currently capable of making the decision to accept nourishment and assistance with feeding?

 2)    Does assistance with feeding fall within the definition of health care or personal care?

3)    If Mrs. Bentley is not currently capable of making the decision to accept nourishment, who has authority to make the decision?

4)    Would failure to provide assistance with feeding constitute neglect within the meaning of the Adult Guardianship Act?

5)    Would failure to provide assistance with feeding contravene a criminal prohibition?

With respect to the first issue, if Mrs. Bentley is capable of making a decision to accept nourishment and assistance with feeding there would no basis to discontinue offering it to her. Her family argued that she was incapable of making a decision, and her acceptance of nourishment was reflexive.

In his analysis, Mr. Justice Greyell noted that there is a presumption of law in British Columbia that a person is capable of making decisions. Although Mrs. Bentley was not capable of making complex decisions, the law recognizes that a person may be able to make some decisions even if not capable of others.

After considering medical opinions on both sides of the issue, he found that her husband and daughter had not met the onus of showing that she was not capable of deciding whether to accept nourishment. He wrote at paragraphs 59 and 60:

[59]         Based on the evidence before me, I am of the view that the petitioners have not met their onus of rebutting the legislative presumption that Mrs. Bentley is capable of making the decision to accept or refuse to eat and drink. The preponderance of the evidence demonstrates that she has the capacity to make this decision. In coming to this finding, I have carefully considered and weighed the medical evidence as well as the descriptions of Mrs. Bentley’s behaviour. I prefer the evidence of Dr. O’Connor, who has expertise in incapacity assessments, to that of Dr. Edelson, who is a general physician. I find it significant that Mrs. Bentley indicates preferences for certain flavours and eats different amounts at different times. The petitioner has not established that Mrs. Bentley’s behaviour is a mere reflex and not communication through behaviour, which is the only means through which Mrs. Bentley can communicate.

[60]         The finding that Mrs. Bentley is currently capable of making the decision to eat and drink and is communicating her consent through her behaviour means that those providing her with care must continue to offer her assistance with feeding in the form of prompting her with a spoon or glass.

While Mr. Justice Greyell’s finding that Mrs. Bentley was consenting to nourishment and hydration was sufficient to dispose of the application, he went on to consider whether offering her nourishment and beverages was “health care” to which the Health Care (Consent) and CareFacility (Admission) Act (“HCCCFA”) procedures for obtaining consent applied if a patient is unable to consent, or “personal care,” which does not fall under the HCCCFA (could our Legislature not have come up with a shorter title for this Act?).

Under the HCCCFA, apart from emergency care, if a patient is unable to consent to health care, a health care provider must obtain substitute consent from one of the following: a court appointed personal guardian (or committee of the person), a representative appointed by the patient under a representation agreement, an advance directive made by the patient, or a temporary substitute decision maker appointed pursuant to the HCCCFA.

In this case, there was no court appointed personal guardian and Mrs. Bentley had not made a representation agreement. So if the provision of nourishment and liquids is “health care,” then the next questions would be whether Mrs. Bentley’s care providers would be required to either follow her statements of wishes as advanced care directives, or obtain consent from a temporary substitute decision maker. But if it is not “health care,” then the substitute consent provisions of HCCCFA would not apply.

Mr. Justice Greyell found that offering nourishment and beverage orally was personal care rather than health care. In reaching that conclusion he considered the definitions of “health care” under the HCCCFA, and “personal care” under the Representation Agreement Act. He wrote at paragraphs 83 and 84:

[83]         It is clear from the Representation Agreement Act, the primary method for appointing a substitute decision maker in British Columbia, that health care and personal care are distinct and that personal care includes decisions relating to an adult’s diet. The legislature has chosen to make a clear distinction between the two by allowing an adult to authorize a representative to make personal care decisions or health care decisions (Representation Agreement Act, ss. 7, 9). Furthermore, the Residential Care Regulation and the Community Care and Assisted Living Regulation address nutrition, assistance with eating, and meal planning as an aspect of daily living outside of the scope of the HCCCFA Act.

[84]         I find that providing oral nutrition and hydration by prompting with a spoon or glass is a form of personal care, not a form of health care within the meaning of the HCCCFA Act. It follows from this that the consent scheme laid out in that Act is not applicable in this scenario. This does not mean that service providers may provide oral nutrition and hydration without consent: adults have a common law right to consent or refuse consent to personal care services. When an adult is incapable of consenting, he is entitled to a substitute decision maker who will give or refuse consent, which will be discussed below.

Mr. Justice Greyell considered whether, if the nourishment were health care, Mrs. Bentley’s written statements of her wishes should be given effect as advanced directives to discontinue the provision of nourishment. In concluding not, he found that the 1991 statement was ambiguous. It was not clear whether Mrs. Bentley considered the provision of nourishment and liquids to be an “artificial” or “heroic” measure in itself, or whether she did not want to be given nourishment and liquids in an artificial or heroic manner if “there was no reasonable expectation of my recovery….” He wrote at paragraphs 111 and 112:

[111]     The most likely interpretation appears to be that Mrs. Bentley did not want artificial delivery of nourishment or liquids through measures like a feeding tube. I do not believe many people would consider eating with a spoon or drinking from a glass, even when done with assistance, “artificial”. While “heroic measures” may be a commonly used expression, it does not communicate with any degree of clarity what a particular adult considers “heroic”. As Ms. Duthie’s Clinical Ethics Consult report states, there is consensus in the medical community that assistance with oral nutrition and hydration is neither artificial nor heroic.

[112]     I find that the instruction “No nourishment or liquids”, when read in the context of the 1991 Statement of Wishes, is so unclear that even if this document could be considered a valid advance directive, this instruction could not be taken as consent by operation of s. 19.8(1)(b).

He found the second statement of wishes to be even more ambiguous, and because it was not witnessed, did not comply with the formal requirements of an advance directive.

If Mrs. Bentley were incapable of consenting, and if the provision of nourishment constituted “health care,” then under the HCCCFA, her health care providers would be required to appoint a temporary substitute decision maker for her. Under the hierarchy set out in the legislation, her husband could be appointed as a substitute decision maker, but if he were not able or willing to act, then one of her children could act.

Mr. Justice Greyell found that a temporary substitute decision maker would not have authority to discontinue care required to sustain Mrs. Bentley’s life. This is because the authority of a temporary substitute decision maker to do so is limited by section 18(2) of the HCCCFA to circumstances where “there is substantial agreement among the health care providers caring for” her that “the decision to refuse consent is medically appropriate.” 

In this case, Mr. Justice Greyell found,

…it is clear that the majority of the health care providers involved in Mrs. Bentley’s care do not agree that it is medically appropriate to discontinue offering her assistance with eating by prompting with a spoon or glass. With the exception of Dr. Edelson, Mrs. Bentley’s health care providers have indicated that it would be medically and ethically inappropriate to withdraw this care. It is equally clear that this care is preserving Mrs. Bentley’s life as she would die from inadequate nutrition and hydration without it.

[120]     Therefore even if assistance with oral nutrition and hydration was considered health care, Mrs. Bentley’s temporary substitute decision maker would not have the legal authority to refuse consent since it would be health care necessary to preserve life and there is no substantial agreement among the health care providers caring for Mrs. Bentley that the decision to refuse substitute consent is medically appropriate. Mrs. Bentley’s health care providers have an obligation to consult with her temporary substitute decision maker, which they have done. However, Mrs. Bentley’s temporary substitute decision maker does not have the legal authority to make a binding decision when her health care providers believe it is medically inappropriate.

Although Mr. Justice Greyell found that offering nourishment and liquids is “personal care” rather than “health care,” he held that the care providers have a duty to consult with friends and family of a person provided with care who is not able to consent. He wrote at paragraphs 123 and 124:

[123]     If an adult has neither a personal guardian nor a representative who has authority to make personal care decisions, it is unclear who consent must be obtained from. An advance directive may not contain instructions relating to personal care; the scope of an advance directive is limited to health care (HCCCFA Act, s. 19.2(1)). There is no statutorily outlined substitute consent system for personal care like the temporary substitute decision maker system in the HCCCFA Act for health care.

[124]     I am of the view that when an adult is incapable of making a personal care decision and has no personal guardian and no representative, the common law principles of personal autonomy and bodily integrity require that at minimum a service provider should consult with friends and family of the adult, who are best placed to know what the adult would have wanted, and with any written wishes the adult documented.

In this case, Mr. Justice Greyell found that the Maple wood Seniors Care Society and the Fraser Health Authority had consulted extensively with Mrs. Bentley’s family.

Mr. Justice Greyell found that failure to offer nourishment and liquids to Mrs. Bentley would amount to neglect under the Adult GuardianshipAct. A mentally capable adult may refuse food and liquids, but there are greater risks of allowing a substitute decision maker to refuse consent to personal care. Mr. Justice Greyell wrote at paragraphs: 142 through 145:

[142]     In all three of these cases, the person expressing the wish to stop eating and drinking was found mentally capable of making that decision. It is clearly not settled law that a substitute decision maker has authority to refuse the provision of oral nutrition and hydration, such as prompting with a spoon or a glass, on behalf of an adult who is incapable of making that decision. There are more risks associated with accepting such a direction from a substitute decision maker than from an adult himself.

[143]     These risks were discussed by Thaddeus Mason Pope and Lindsey E. Anderson in “Voluntary Stopping Eating and Drinking: A Legal Treatment Option at the End of Life” (2011) 17 Widener L. Rev. 363. Although the authors argue that voluntarily stopping eating and drinking is a dignified and legal option for competent adults in many common law jurisdictions, they acknowledge that the right to refuse oral nutrition and hydration on behalf of an adult who is incapable of making that decision is not widely recognized at this time. They point to several substantive and procedural problems with such a decision being made on an adult’s behalf, including the risk that she has changed her mind since expressing her wishes. They state at 426:

Advance directives and surrogate appointments can be revoked by the patient. Revocation is typically straightforward when dealing with a patient with capacity. But what exactly constitutes revocation from an incapacitated patient? A severely demented patient might appear to request or desire food and water. Does a gesture such as pointing to one's mouth constitute a revocation of the patient's earlier (capacitated) instruction to not assist feeding under those circumstances?

 [144]     I am not satisfied that the British Columbia legislature contemplated that reference to previously expressed wishes or substitute decision makers could be relied on to refuse consent to personal care services on behalf of an adult that would lead to her death. The HCCCFA Act sets out that health care necessary to preserve life may be refused on behalf of an adult by a representative or, in some circumstances, a temporary substitute decision maker or an adult’s previously expressed wish. Section 9(3) of the Representation Agreement Act expressly provides that a “representative may give or refuse consent to health care necessary to preserve life”, however, there is no equivalent statement that a representative could refuse consent to personal care necessary to preserve life.

[145]     In the circumstances of this case, I am of the view that if Mrs. Bentley was found incapable of deciding whether to accept or refuse oral nutrition or hydration that to withdraw the assistance she is receiving would amount to neglect within the meaning of the Adult Guardianship Act. As a designated agency, FHA would be obligated to respond appropriately to any concern that Mrs. Bentley may be placed in a situation of such neglect.

Mr. Justice Greyell declined to grant a declaration that Mrs. Bentley’s wishes are a lawful excuse for withdrawing nourishment, thereby immunizing her care providers from prosecution under the criminal code. He found that the court did not have authority to bind prosecutorial discretion in a petition.

In summary, Mr. Justice Greyell found that by accepting nourishment and liquids, Mrs. Bentley was consenting to their provision, and that her family did not establish that she was incapable of consenting. The provision of nourishment and liquids orally was personal care rather than health care, and accordingly the provisions of the HCCCFA did not apply. Even if they did apply, the two statements of wishes were ambiguous, and could not be given effect as advance care directives to refuse the nourishment and liquids. Nor could a temporary substitute decision maker refuse consent on behalf of Mrs. Bentley given that there was no agreement among her health care providers that refusing consent to nourishment and liquids was medically inappropriate. If her care providers discontinued offering nourishment and liquids, doing so would be neglect under the Adult Guardianship Act. Even a representative acting under a representation agreement would not have authority to discontinue “personal care” as opposed to “health care” necessary to preserve life.

Re James: Jurisdiction of a Master Under the Patients Property Act

The Supreme Court of British Columbia has both judges and masters. Some types of court applications can be heard by either a judge or a master, and others only by a master. Sometimes it is clear when a matter can be heard by a master, but at other times it is not always straightforward.

Supreme Court of British Columbia judges are appointed by the federal government, and masters by the provincial government. Only judges hear full trials, and masters generally hear either procedural applications before trial, or applications for interim orders, such as orders for custody or support in family law proceedings. But sometimes, masters may make final orders as well.

In a recent decision, Re James, 2013 BCSC 3, Madam Justice Hyslop considered the jurisdiction of a master to decide applications to have someone declared incapable of managing her affairs or her person, and to appoint a committee to act as guardian for that person. She also considered the standard of review if a master’s decision is appealed.

In Re James there were competing applications by one of Doreen James’ children, Cindy Beka, and by Ms. James husband, Douglas James. The applications were initially heard by a court master who appointed Ms. Beka as committee.

Mr. James appealed. He argued that the master did not have jurisdiction to make the order. He argued alternatively that a judge hearing an appeal could consider the matter afresh, and that he did not have to persuade the judge that the master was “clearly wrong.” He further sought to have fresh evidence admitted.

Madam Justice Hyslop held that the master did have jurisdiction to decide who to appoint as committee, provided that there was no dispute about whether the person over whom a committeeship was sought was incapable of managing herself or her affairs. If there had been an issue about whether Ms. James was incapable, then only a judge could hear it. She cited a practice direction from the Chief Justice as follows:

2. Pursuant to section 11 (7) of the Supreme Court Act, the Chief Justice directs that a master is not to exercise jurisdiction:
...
e.         in any matter relating to criminal proceedings or the liberty of the subject other than uncontested petitions under the Patients Property Act.

In this case, the declaration that Ms. James was incapable of managing herself or her affairs was not contested.

The next issue, Madam Justice Hyslop was asked to consider was the standard of review. Mr. James argued that a Judge could reconsider who should be appointed as committee, while Ms. Beka argued that that Mr. James had to persuade the court that the Master was clearly wrong. This distinction is important, because it is likely to be easier to persuade a judge to exercise her discretion differently than a master, than to persuade a judge that the master was clearly wrong, a test which requires deference to the master’s decision.

The issue of what test applied turned on the nature of the order, whether it was in the nature of a temporary order or an order that either finally disposed of the proceeding, or would likely have a significant impact on the final outcome. The “clearly wrong” standard is applicable to temporary orders, while a rehearing is appropriate for final orders.

After considering the case precedents, Madam Justice Hyslop concluded that the appointment of a committee was a final order. She wrote:

[55]         The appointment of a committee is a final order and is dispositive as to who should be committee. The committee is required to care for the patient and his or her assets both in the present and in the future. Once an order is made, a committee takes on all the responsibilities that the patient performed for herself or himself. 

 [56]         I have concluded that the application should be re-heard. The appointment of a committee vests in the committee the right to make all decisions for Mrs. James. The fact that the appointment may be rescinded, relates only to the committee’s ability to discharge her duties in the future.

The next issue Madam Justice Hyslop considered was whether to allow fresh evidence, which is evidence that was not before the master who heard the original application. She summarized the tests on whether to admit fresh evidence:

[57]         In order to adduce fresh evidence, it must be demonstrated that the evidence was not available at the time of the hearing despite due diligence. It must also be evidence that may affect the ruling had it been put before the court at the first instance. Ultimately, it is whether the interests of justice are best served with the introduction of the fresh evidence.

Madam Justice Hyslop admitted evidence that since Ms. Beka was appointed committee, she removed her mother from the community her mother had been living in, restricted Mr. James’ access to his wife, and started a family law proceeding to dissolve the marriage between Mr. and Mrs. James. The Court also considered evidence of friend of Mr. James that Mrs. James reacted favourable to Mr. James during a visit. Because these matters arose since the Master appointed Ms. Beka committee, none of it was available in the original application.

After considering the evidence, Madam Justice Hyslop found that there was no basis for Ms. Beka’s claim that Mrs. James had separated from Mr. James, or that a family law proceeding was necessary to protect Mrs. James. She found that Mr. James had cared for his wife through her health problems. Furthermore, Ms. Beka had been estranged from her mother.

Madam Justice Hyslop concluded that it is in the best interest of Mrs. James that Mr. James be appointed as committee instead of Ms. Beka.  

Court of Appeal Upholds Temoin v. Martin

The British Columbia Court of Appeal, in Temoin v. Martin, 2012 BCCA 250, upheld Madam Justice Fisher’s decision declining to order a medical examination of  Lewin Martin for the purpose of determining whether he was capable of managing his affairs. The Court of Appeal released its decision on June 11, 2012.

As I summarized the facts in my earlier post on Madam Justice Fisher’s decision, Lynn Temoin was seeking an order declaring that her father, Llewellyn Martin, was incapable of managing his own affairs. There was evidence that he had memory loss, and she was concerned that his wife, Ms. Temoin’s step mother, was taking advantage of his weakened mental functioning to persuade him to change his will and estate plan to benefit his wife and her children. A psychiatrist examined Mr. Martin, and opined that Mr. Martin had mild dementia and that he did not have capacity to make a will. But the psychiatrist did not conduct an examination of his ability to manage his own affairs.

Ms. Temoin wanted to have an accounting firm appointed to manage her father’s finances, and was seeking the appointment of herself to make personal and health care decisions for him.

Under the Patients Property Act, the Supreme Court of British Columbia may declare a person incapable of managing himself or his affairs, and appoint a “committee” or guardian for that person on the evidence of two physicians. But the Act does not give the Court the power to order a medical or psychiatric examination of someone who is suspected of being incapable. What happens is someone who may be incapable refuses to see a physician for an assessment?

The courts considered two questions. First, does the Supreme Court of British Columbia have the power to order an assessment? If so, when should it exercise that power?

The Court of Appeal agreed with Madam Justice Fisher’s decision that the Court does have the power to order an examination, and also agreed that it should not exercise that power in this case.

The Court held that there is a legislative gap, and the Supreme Court may order an assessment pursuant to its “parens patriae jurisdiction,” which gives the Supreme Court the power to act to protect those who are unable to protect themselves. Madam Justice Neilson wrote:

[50]         Whether a legislative gap exists is a question of legislative intent. The Patients Property Act reveals two objectives, both of which serve the goal of free choice. First, it guards the autonomy of capable individuals by requiring a minimum of two medical affidavits to rebut the presumption of capability. Second, it protects the interests of vulnerable adults whose capacity has been compromised by mental infirmity, and who are therefore incapable of making autonomous choices. 

 [51]         The legislative framework of the Act, however, presupposes a willing participant in two medical assessments, as well as ready access to two properly qualified physicians. It provides no protection for individuals who appear to be incapable but have no access to physicians, or who refuse to be medically examined. This gap is particularly acute if the refusal to undergo examinations flows from the apparent incapability. In these cases, the requirement of two medical opinions, designed to protect individual autonomy, become an impediment that places individuals who are incapable of making free choices beyond assistance. The inability to order medical examinations to provide an evidentiary foundation for a hearing under s. 3 of the Patients Property Act leaves these individuals without autonomy or protection, and creates a gap that is incompatible with its legislative objectives.

The Court of Appeal also agreed with Madam Justice Fisher that the power to order a medical examination should be exercised cautiously. There is a presumption of law that an adult has capacity unless found to be incapable, and the right to decide whether to undergo an assessment should not be interfered with lightly. In rejecting arguments advanced on behalf of Ms. Temoin that the threshold for ordering an examination should be a low one, Madam Justice Neilson wrote:

[59]         I do not find these arguments persuasive as they fail to recognize the significance of personal autonomy and the serious consequences of an order for committeeship or the intrusive nature of compelling an individual to undergo medical examination against his or her will. As well, a less onerous test has the potential to invite unwarranted harassment and abuse by individuals who bring proceedings under the Patients Property Act for self-serving motives. 

 [60]         There is considerable support for a high evidentiary threshold in these circumstances. The analysis must begin with the premise that Mr. Martin enjoys the benefit of the presumption of capability. The decisions of this Court in McNeal [v. Few (1975), 63 B.C.L.R. 281 (C.A.)] and Kartsonas [v. Kartsonas, 2009 BCCA 218] affirm the significance of losing personal autonomy to a committee. The Supreme Court in Re Eve advocated a cautionary approach to exercising parens patriae jurisdiction, and emphasized it must be used for the benefit of the person in need of protection, and not to benefit others. That Court has also repeatedly affirmed that the common law should be informed and guided by the values set out in the Canadian Charter of Rights and Freedoms: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 603, 33 D.L.R. (4th) 174; Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129 at 155 (S.C.C.); R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 at paras. 18 and 21, [2002] 1 S.C.R. 156. Ms. Temoin’s application unquestionably implicates principles of liberty, autonomy and equality, and Charter values are thus inescapably engaged. Those values are given meaning by requiring a level of proof that is commensurate with both the importance of the individual interests and the seriousness of the intervention at stake.

 [61]         Ultimately, the exercise of the parens patriae power is discretionary, and will be governed by the facts of the individual case. Thus, flexibility is required and I decline to endorse one evidentiary standard for all cases of this nature. It is, however, beyond dispute that the applicant must present evidence establishing a serious question to be tried, both with respect to the individual’s capacity and his or her need for protection. In this case, I am satisfied the chambers judge made no error in requiring prima facie evidence of incompetence and a compelling need for protection before she would exercise her parens patriae jurisdiction to make the order sought by Ms. Temoin.

The Court of Appeal held that Madam Justice Fisher had properly found the evidence was insufficient to order Mr. Martin to undergo an examination.

[76]         These circumstances required the judge to consider whether the exercise of her parens patriae powers to order medical examinations would serve Mr. Martin’s interests or those of others. In my view, she properly concluded the evidence was insufficient to establish a compelling need to protect Mr. Martin that justified her intervention. There was nothing to suggest he was personally at risk, or subject to abuse or neglect. The evidence indicated he is financially comfortable, lives with family and caregivers in his own home, and has retained appropriate consultants to assist in managing his business and financial interests. Although the family dispute underlying this proceeding causes him distress, he has apparently remained on good terms and in contact with members of both his first and second families.

Temoin v. Martin

If you believe that a member of your family, or a friend, is no longer capable of managing himself or his affairs, you may apply to the Supreme Court of British Columbia to be appointed as a committee, or in other words a guardian, of the incapacitated person. To succeed, the Patients Property Act provides that you must have affidavits from two medical practitioners providing their opinions that the person you are seeking to have declared incapable is in fact incapable.

But what if the person you believe is incapable refusing to be examined by a physician? Can you apply to court for an order that he be examined?

Madam Justice Fisher considered this question in a decision last week, Temoin v. Martin, 2011 BCSC 1727.

Lynn Temoin was seeking an order declaring that her father, Llewellyn Martin, was incapable of managing his own affairs. There was evidence that he had memory loss, and she was concerned that his wife, Ms. Temoin’s step mother, was taking advantage of his weakened mental functioning to persuade him to change his will and estate plan to benefit his wife and her children. A psychiatrist examined Mr. Martin, and opined that Mr. Martin had mild dementia and that he did not have capacity to make a will. But the psychiatrist did not conduct an examination of his ability to manage his own affairs.

Mr. Martin declined to undergo examinations to determine his capacity to make his own financial decisions, and Ms. Temoin applied for an order that he be examined by two physicians.

The Patients Property Act has a provision in section 5 allowing the court to order someone to attend before a physician for an examination, but the Court of Appeal, in McNeal v Few, (1975) 63 BCLR 281 (CA), held that the court could only make an order under what is now section 5 for an examination if there was already affidavit evidence of incapacity from two physicians.

Ms. Temoin argued that there is a legislative gap in the Patients Property Act, and the Supreme Court of British Columbia had inherent jurisdiction, known as the parens patriae jurisdiction, to order an examination to protect a vulnerable person.

Madam Justice Fisher agreed that the Court has the jurisdiction to make an order that a person in respect of whom an application is made attend an examination with a physician. But it is a power that the Court should employ sparingly. She wrote at paragraph 63:

[63] There is no question that compelling a person to submit to a medical examination is intrusive to personal autonomy and any order doing so would have to respect the values of the Canadian Charter of Rights and Freedoms. It is an order that should be made in rare circumstances, where there is “proof of incompetence” and where there is a compelling need for protection. The need for protection may be based on evidence that the person is personally or financially vulnerable due to things such as dangerous or erratic behaviour or abuse by others. The exercise of parens patriae jurisdiction requires that any order made is in the best interests of the person requiring protection.

On the facts before her, Madam Justice Fisher declined to make an order that Mr. Martin be examined by two physicians. She found there was insufficient evidence of his capacity and vulnerability. She wrote:

[64] Re Eve [[1986] 2 SCR 388,] is not instructive about what “proof of incompetence” means. In my view, there must be evidence which establishes that the person who is the subject of the application is prima facie incompetent. For the purpose of ordering a medical examination, this will be something less than the court being satisfied that the person is incapable of managing himself or his affairs. There must be some medical evidence. There may also be evidence from family, caregivers and close friends, which may provide important insight into the condition of the individual and any need for protection. I agree with the comments of Vickers J. in [British Columbia (Public Trustee of) v Batiuk, (1996), 14 ETR (2d) 5] Batiuk #1 (at para. 35) that “proper assessments are multi-disciplinary in nature and they will include the observations of persons close to the individual concerned.” This is consistent with the commentary in G. B. Robertson, Mental Disability and the Law in Canada, 2nd. Ed. at 27.

[65] In this case, I am not satisfied that the evidence is sufficient to establish that Mr. Martin is prima facie incompetent or that he is in need of protection. There is evidence that Mr. Martin has memory problems and some cognitive deficits. However, there is little evidence that he is incapable of managing his affairs, and there is conflicting evidence on his ability to make financial decisions. There is no evidence that Mrs. Martin has taken advantage of her husband in any way that requires this Court’s protection.

[Since I wrote this post, the British Columbia Court of Appeal has upheld Madam Justice Fisher's decision. You can read my post on the Court of Appeal decision here.]

Canadian Bar Association Webinar on B.C.'s Incapacity Planning Legislation

On Wednesday, May 25, 2011, from 11:30 am to 1:30 pm I will be speaking at a Canadian Bar Association, British Columbia Branch webinar on the changes in legislation on incapacity planning in British Columbia that are coming into effect on September 1, 2011.

It's been an experience trying to figure out the changes to the legislation. There are several statutes being amended, including the Adult Guardianship Act, the Power of Attorney Act, the Representation Act, and the Health Care (Consent) and (Care Facility Admissions) Act. Most of the amendments are in Bill 29, the Adult Guardianship and Planning Statutes Amendment Act, 2007. But Bill 29 was amended by Bill 33, the Miscellaneous Statutes Amendment Act, 2008, and then by Bill 13, the Miscellaneous Statutes Amendment Act, 2009. Now the further amendments have been introduced in the Legislative Assembly in Bill 7, the Miscellaneous Statutes Amendment Act, 2011. Of course, not all of the provisions in the Adult Guardianship and Planning Statutes Amendment Act, 2007 are coming into effect on September 1. You have to figure out which ones will come in, and which ones won't.

Fortunately, the legislation will be consolidated, and I anticipate that after September 1, 2011, you will be able to click on the legislation you are looking for on BC Laws and read the amended version.

Sections of the Adult Guardianship and Planning Statutes Amendment Act, 2007 come into effect September 1, 2010

Portions of the Adult Guardianship and Planning Statutes Amendment Act, 2007 will come into force effective September 1, 2011. The Courthouse Libraries B.C. website sets out the proclamation here as follows:

IN FORCE DATE: Sep 1, 2011


Sections IN FORCE:section 1 (k) as it enacts the definitions of “attorney”, “enduring power of attorney”, “financial affairs” and “power of attorney”; the rest of the Act EXCEPT the following: the remainder of section 1 (k); sections 1 (b) and (c), 4, 5, 15, 18, 31 (b), 33, 67, 73, 82, 94 to 97, 100 to 103, 105 (a), and 110 (b) and (c); section 17 as it repeals section 62 of the Adult Guardianship Act; section 17 as it enacts sections 62, 62.1, 62.2 (2), 62.3 and 63 (2) (a) to (r) and (3) to (6) of the Adult Guardianship Act; section 29 as it enacts section 19.92 of the Health Care (Consent) and Care Facility (Admission) Act; section 31 (a) as it enacts section 34 (2) (n) of the Health Care (Consent) and Care Facility (Admission) Act; section 91 as it amends section 282 (2) of the Land Title Act, and section 99 as it enacts section 9 (1) (b) and (c) of the Partition of Property Act

It's a bit confusing trying to figure out exactly what sections are in force, but it appears that the amendments to the Power of Attorney Act and the Representation Agreement Act are being brought into force. The repeal of the Patients Property Act, and its replacement with new legislation is not being brought into effect.