Part 3 of the Health Care (Consent) and Care Facility (Admission) Act is Now in Force

Part 3 of the Health Care (Consent) and Care Facility (Admission) Act came into effect on November 4, 2019. Part 3 sets out the criteria for an adult to be admitted into a care facility.

There are three ways that a person may be admitted into a care facility. The person may consent if she is capable. Second, if she is not capable, an application may be made on her behalf by a substitute decision maker. Third, she may be admitted on an emergence basis, for example, if it is necessary to preserve her life or prevent serious physical or mental harm to her, or serious physical harm to any person.

If the person is incapable, section 22 sets out who may act as the substitute decision maker, in order of priority, beginning with the person’s guardian, followed by a representative under a representation agreement. Section 22 (1) and (2) provide:

22   (1)A manager may admit an adult to a care facility without the adult's consent if consent is given by

(a)a personal guardian who has authority to consent to the admission and is capable of giving or refusing consent, or

(b)a person listed in subsection (2) of this section, if the manager has made every reasonable effort to obtain consent from the adult but the adult is determined under section 26 to be incapable of giving or refusing consent.

(2)Subject to subsection (3), substitute consent to an adult's admission to a care facility may be given or refused by the first, in listed order, of the following who is available and qualifies under subsection (4):

(a)the adult's representative, if the representative has authority to consent to the admission;

(b)the adult's spouse;

(c)the adult's child;

(d)the adult's parent;

(e)the adult's brother or sister;

(f)the adult's grandparent;

(g)the adult's grandchild;

(h)anyone else related by birth or adoption to the adult;

(i)a close friend of the adult;

(j)a person immediately related to the adult by marriage.

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.)

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.

Advance Directives and Representation Agreements

The Canadian Bar Association, British Columbia Branch has published my article "Advance Directives and Representation Agreements: How do they differ?" in the February 2012 edition of Bartalk.

In an advance directive you can give or refuse consent to specific types of health care in case you later become incapable of making your own decisions.

In a representation agreement you can appoint someone to make health care and personal care decisions for you if you become incapable.

What happens if you make an advance directive concerning a health care matter over which you have also given your representative authority in a representation agreement? Which has priority? Does the advance directive supersede your representative's authority, or must a health care provider still consult with your representative?

You can find out by reading my article here.

Changes to Incapacity Planning Legislation and new Standard Forms

Amendments to the legislation in British Columbia, including the Power of Attorney Act, and the Representation Agreement Act are now in force. They came into effect on September 1, 2011 (while I was on holidays).

The changes will require some changes in the forms used for enduring powers of attorney and representation agreements in British Columbia. The Ministry of the Attorney General has published some standard forms, which you may access from here.

The forms are not mandatory, and are not appropriate in all circumstances. I am working on modified forms for my clients.

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.

B.C. Government Seeking Input on Adult Guardianship Regulations

The British Columbia Minstry of Attorney General is inviting comments on proposed regulations to implement the Adult Guardianship and Planning Statutes Amendment Act, 2007. You can link to the draft regulations, as well as draft Adult Guardianship plans and incapacity planning documents here.

The Adult Guardianship and Planning Statutes Amendment Act, 2007 , will modernize British Columbia's adult guardianship laws, and amends the Power of Attorney Act, and Representation Agreement Act. This legislation was passed by the Legislative Assembly last year, but is not yet in force.

You may send your comments by no later than December 15, 2008 (which is not much time), by email to AGWEBFEEDBACK@gov.bc.ca .

B.C. Legislative Assembly Passes New Adult Guardianship Legislation

On October 23, 2007, the British Columbia Legislative Assembly passed Bill 29, the Adult Guardianship and Planning Statutes Amendment Act, 2007. This legislation is not yet in effect. I have heard that the government will likely bring the legislation into force in the fall of 2008. [As at December 21, 2008, it is still not in force.]

The purpose of the new legislation is to modernize B.C.'s adult guardianship laws. The legislation repeals the Patients Property Act, and replaces it with new procedures. It also authorizes advance care directives, and amends the Representation Agreement Act. The new legislation will also reform the law in respect of enduring powers of attorney.

I plan to discuss these changes in more detail closer to when the new legislation will be coming into force.

Amendments to British Columbia Adult Guardianship Legislation Introduced

The Attorney General of British Columbia, Wally Oppal, introduced Bill 29 in the Legislative Assembly last week. The new legislation is intended to replace the Patients Property Act with more modern legislation. If passed, Bill 29 will also make changes to legislation relating to powers of attorney, representation agreements, and it will authorize advance directives.

According to the Ministry of Attorney General press release,

"The new guardianship law strikes an improved balance between protection and selfdetermination for adults who have guardians,” said Public Guardian and Trustee Jay Chalke, Q.C. “The replacement of the old Patients Property Act with this new law allows all guardians to better implement modern adult guardianship principles of autonomy, procedural fairness and the use of the least restrictive and intrusive form of support.”

The act enhances incapacity planning options by strengthening and clarifying representation agreements and enduring powers of attorney. The act also introduces an additional planning option, called an advance directive, for health-care decisions. Advance directives give British Columbians another choice for communicating their health-care wishes.

British Columbia Government Proposes Changes to Adult Guardianship Legislation

British Columbia Attorney General Wally Oppal has introduced Bill 32, The Adult Guardianship and Planning Statutes Amendment Act, which if passed will make significant amendments to our adult guardianship legislation, including changes to the Representation Agreement Act, and the Power of Attorney Act. The proposed legislation will authorize health care directives. You can read further information from the Ministry of Attorney General website here.

Registering Your Representation Agreement

You may register your Representation Agreement in British Columbia through the Nidus eRegistry, which is operated by the Representation Agreement Resource Centre, a non profit Society.

According to the Nidus website here,

The Nidus eRegistry is designed to facilitate communication.

When people make their personal life plans using Enduring Powers of Attorney and Representation Agreements, their final question is – whom do I tell? Who should get a copy? We don’t always know who will need to know or when. The Registry offers a simple and secure way to record and store your information in a way that can be accessed quickly.

You will register contact information about yourself, your document (where the original is located) and those you’ve named in your document. You can also register a copy of your document.

For more information about Representation Agreements, see my post "Could a case like Terri Schiavo's happen in British Columbia?"

Could a case like Terri Schiavo's happen in British Columbia?

According to newspaper accounts, Terri Schiavo collapsed in her home in 1990. Her heart failed, and she suffered severe brain damage. Doctors said that she was in a “persistent vegetative state.” She was fed through a tube. Her parents and her husband disagreed on whether she should be kept alive, or if the feeding tube should be removed. There were bitter court battles from 1998 until just recently, including two applications to the United States Supreme Court. Her parents took the position that she had some awareness of her surroundings, and there was hope for recovery. Her husband’s position was that she would not recover, and she would not want to continue to live in these circumstances. The courts held that her husband had the legal authority to decide and ordered the feeding tube removed. On March 31, 2005, Terri Schiavo died.

For detailed information on the Terri Schiavo case, there are links to the autopsy report and some of the court decisions in Schiavo at Findlaw Legal Links and Commentary.

Although the writer is not aware of any Canadian cases that are as dramatic as the Terri Schiavo case, there have been conflicts among family over the care of someone who is incapable of making or communicating his or her own decisions. If a person is incapable of managing himself or his affairs, a family member or friend may apply to court to be appointed to make decisions for the incapable person. Sometimes, there will be competing applications among family or friends, and the court is put in the very difficult position of deciding whom to appoint. See for example In the Matter of the Patients Property Act and Marie Moore, 2003 BCSC 1835, where the court appointed the Public Guardian and Trustee as committee in the context of dispute among family members.

There is no foolproof way of avoiding family conflicts over your care if someday you become incapable of making your own decisions. But, there are ways of minimizing the risk of conflicts over your personal care and health care, and of choosing whom you would want to make decisions for you.

In British Columbia, you may make a Representation Agreement, in which you can appoint someone to make decisions for you if you become incapable. You may also appoint a backup person, in case your first choice is unavailable or is unable to act.

In a Representation Agreement, you may decide what powers to give to your Representative including powers to make decisions about:

a. Your personal care, including clothing, diet, exercise, and accommodation;
b. Your minor health care
c. Your major health care, such as major surgery;
d. Your dental care;
e. Whether to consent to treatment for you; and
f. Whether to refuse to consent to treatment for you, including life support.

If you become incapable of making decisions, your Representative is required to follow any instructions you gave your Representative when you were capable. If you did not give your Representative any instructions relevant to a decision that the Representative needs to make for you, he or she must make the decision based on your known beliefs and values. If the Representative does not know your beliefs and values, then he or she must act in your best interests.

A Representation Agreement is a valuable tool to allow you to have some say over who will make personal and health care decisions for you if you become incapable of making those decisions yourself.