Adult Guardianship

Author: Heather Fisher, Lawyer

British Columbia has four statutes which help deal with situations where a person is abused or neglected, or is no longer capable of making decisions about their financial, legal or personal and health care.

ADULT GUARDIANSHIP ACT

The abuse and neglect provisions of the Adult Guardianship Act establish a process for providing support and assistance to abused or neglected adults. This Act allows for the investigation of and response to concerns of abuse, self abuse and neglect through a designated agency (usually the Regional Health Board). The Public Guardian and Trustee has played a lead role in this area, coordinating the establishment of Community Response Networks throughout B.C. to support the designated agency.

If you have information that an adult may be abused or neglected and unable to seek support and assistance you may report the circumstances to a designated agency. The designated agency cannot be compelled to disclose your identity and you cannot be sued for making a report or assisting in an investigation, unless you made the report falsely and maliciously.

If the problem cannot be resolved, the designated agency has the authority to have a Support and Assistance Plan enforced through the Provincial Court. The designated agency may also apply to the court for an order restricting contact between the adult and any person who has abused the adult.

HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) ACT

The health care consent provisions of the Health Care (Consent) and Care Facility (Admission) Act establish practices concerning health care decision-making. Specifically, this Act sets out the following hierarchy of people that are authorized to provide consent to medical treatment or admission to care facilities if the adult is unable to provide consent:

• Committee of person
• Representative named in a Representation Agreement
• Temporary substitute decision maker appointed by the medical facility (TSDM)
• The adult’s spouse
• The adult’s child
• The adult’s parent
• The adult’s brother or sister
• Anyone else related by birth or adoption to the adult
• Any other person, including the Public Guardian and Trustee

PUBLIC GUARDIAN AND TRUSTEE ACT

The Public Guardian and Trustee Act represents the third aspect of the adult guardianship legislative package.

PATIENTS PROPERTY ACT

Under this Act, you have the right to apply to the Supreme Court of British Columbia for an Order appointing you as Committee and granting you the power to make financial and/or health care decisions for an incapable adult. The application documents include the sworn statements of two qualified medical doctors verifying that the adult is not able to manage his or her financial and legal affairs, in the case of a Committee of Estate, and not capable of managing his or her personal and health care, in the case of a Committee of Person. The Judge reviews the application and if satisfied that the adult is unable to manage their affairs, and that you are the appropriate person, will grant a Court Order appointing you as Committee. Typically the Court will order that your reasonable legal fees and expenses be paid out of the adult’s funds.

If appointed as Committee of Estate, you are required to report periodically to the Public Guardian and Trustee regarding your management of the adult’s funds and assets. The Public Guardian and Trustee may also set a reasonable fee for you to receive for your services, payable out of the adult’s funds.

Where there is no relative or friend willing and able to take on the responsibilities of Committee of Estate, the Public Guardian and Trustee will act. There are two ways in which the Public Guardian and Trustee may be appointed — by way of a court application, or by having a certificate of incapability issued by the director of a Mental Health Centre or a hospital’s psychiatric unit.

If you have any questions about adult guardianship, or require advice regarding a committeeship application, we would be pleased to assist you.