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.