From a complex settlement to a simple conveyance, any number of files can involve the Office of the Public Guardian and Trustee. On December 1, 2014, part 2.1 of the Adult Guardianship Act, RSBC 1996, c. 6, came into force. The updates provide new safeguards in the Certificate of Incapability process under the Patients Property Act, RSBC 1996, c. 349, for adults who are assessed as mentally incapable of managing their financial affairs and the Public Guardian and Trustee of BC becomes their statutory property guardian / committee of estate via a certificate issued by a health authority. These provisions replace the former process for appointing the Public Guardian and Trustee Act as committee of estate by a new “certificate of incapability” process.
Under the new rules, the Adult Guardianship Act requires that assessments of incapability be completed by a qualified health care provider under prescribed rules set out in the Statutory Property Guardianship Regulation, B.C. Reg. 115/2014. Assessments of incapability require a medical component and a functional component. A health authority designate must then review the assessment, and consider prescribed criteria, including the need for someone to make financial decisions for the adult. If a certificate is issued, the Public Guardian and Trustee (“PGT”) becomes the adult’s statutory property guardian. Part 2.1 also requires that the adult receive certain information at different steps in the process.
Changes outlined in the Adult Guardianship Act and Statutory Property Guardianship Regulationtherefore includes:
- Information that must be given to adults prior to being assessed for the purposes of a Certificate of Incapability;
- A new test of incapability for financial decision-making;
- Assessments of incapability being comprised of both medical and functional components with new forms;
- Formalized roles for qualified healthcare providers to conduct the functional component of the assessment;
- Access to second assessments and reassessments; and
- Revised responsibilities of health authority personnel responsible for deciding whether to issue certificates.
These changes affect the rights of incapable and potentially incapable adults, together with legislation respecting the duties and responsibilities of those providing for their care: the Patients Property Act, the Public Guardian and Trustee Act, the Mental Health Act, the Representation Agreement Act, the Health Care (Consent) and Care Facility (Admission) Act, the Community Care and Assisted Living Act, the Hospital Act, the Trustee Act, and the Power of Attorney Act, among others.
This paper provides a broad overview of the PGT Services to Adults program, the in force provisions of the Act, including Part 2.1 and applicable Regulations, and issues to consider in the litigation of claims involving potentially incapable adults.
The Public Guardian and Trustee of British Columbia
The Public Guardian and Trustee of British Columbia is a corporation sole established by the Public Guardian and Trustee Act. The current PGT is Catherine Romanko and the authority of the PGT to provide services is derived from various laws.
With respect to the cases in which the PGT is involved, it is both an independent organization and an officer of the Court. The PGT describes itself as “the modern manifestation of a centuries-old tradition in the British judicial system of an independent body appointed to protect those who cannot protect themselves.” The fiduciary role of the PGT is exercised in the interest of those persons it serves and the role of the PGT is to protect private interests. During the fiscal year 2013–2014, the PGT provided services to approximately 28,700 clients and managed approximately $887 million of trust assets.
The PGT can act in a variety of roles:
- Trustee: The PGT can be appointed by statute, deed, will, or court order to administer assets for the benefit of minors or incapable adults.
- Committee: The PGT can be appointed by court order to make legal and financial decisions on behalf of incapable adults (Committee of Estate), or to make decisions on personal or health care needs of incapable adults (Committee of Person). The PGT may also be appointed by certificate of incapability to be a statutory property guardian to make decisions about an adult’s financial affairs.
- Property Guardian: The PGT can be appointed by court order or statute to protect the legal and financial interests of minors.
- Temporary Substitute Decision Maker: The PGT is designated under the Health Care (Consent) and Care Facility (Admission) Act to act as the temporary substitute decision-maker for an adult when the adult is incapable of providing consent to health care and there is no one else authorized to make the decision.
- Personal Representative: The PGT may be appointed in a will to act as an executor or may act as an administrator of a deceased person’s estate.
- Monitor of Committees: The PGT is appointed under the Patients Property Act to monitor the actions of committees.
- Investigation of Trustees and Other Fiduciaries: The PGT is authorized under the Public Guardian and Trustee Act to investigate the activities of a committee, an attorney acting under an enduring power of attorney, a representative acting under a representation agreement, and certain trustees.
- Review of Settlements of Claims: The PGT is authorized under the Infants Act to approve settlements of $50,000 or under for unliquidated damage claims brought by minors. For settlements over $50,000, the PGT provides written consent to the court evaluating the settlement. The PGT may also provide recommendations to the court regarding the settlement of an incapable adult’s claim.
- Review of Applications to be Appointed Trustee: A person may apply to court under the Family Law Act to be appointed trustee of a trust for a minor.
- Litigation Guardian: The PGT can be appointed under the Public Guardian and Trustee Act to act as litigation guardian for minors for whom the PGT is guardian of estate and for other minors when there is no one else to act; and to act as litigation guardian for adults for whom the PGT is committee of estate.
- Litigation Representative: The Public Guardian and Trustee Act provides that the PGT may be appointed as litigation representative to represent the estate of a deceased person for whom no other legal personal representative exists.
Services to Adults
The PGT delivers three services to adults who require assistance:
- Assessment and investigation service — when there is reason to believe that (a) an adult may be incapable and his or her assets are at risk; (b) an attorney, representative, or committee is not complying with his or her duties; or (c) an incapable adult’s interest in a trust is at risk.
- Broad powers to investigate the activities and audit the accounts of trustees and other fiduciaries;
- PGT may also investigate activities when an adult does not have a committee, attorney, or representative and the adult is apparently abused or neglected;
- PGT may also investigate personal and health care decisions made by a representative or committee when there is reason to believe they have not complied with their duties; and
- PGT also has authority under Part 5 of the Representation Agreement Act and Part 3 of the Power of Attorney Act to investigate objections and to take remedial action.
- Monitoring and review service of the appointment and performance of private committees.
- Private committees are required to submit their accounts of the management of the incapable adult’s affairs, including an inventory of the incapable adult’s assets;
- PGT reviews the accounts to confirm that expenditures are made for the benefit of the mentally incapable adult and the management of the adult’s estate is in order;
- When a legal proceeding has been commenced on behalf of a mentally incapable adult and a settlement is proposed, the court must approve the settlement in order for it to be binding on the adult (Supreme Court Civil Rule 20-2(17)); and
- PGT may make submissions on the terms of the proposed settlement.
- Legal representative service — when the PGT directly represents an incapable adult as a substitute decision-maker for financial, personal, or health care decisions.
- Under the Health Care (Consent) and Care Facility (Admission) Act, the PGT may authorize a person to consent to care or be authorized to act as a temporary substitute decision-maker;
- The PGT has all the rights, privileges, and powers over the estate of an adult once appointed as committee including bringing or defending a legal action on behalf of the adult client;
- When appointed as committee of the person, the PGT makes personal care decisions including decisions about where the adult will live or the health care the adult will receive; and
- The PGT may also act as a pension trustee under the Canada Pension Plan and Old Age Security Act, trustee under the Public Guardian and Trustee Act, attorney under the Power of Attorney Act, representative under the Representation Agreement Act, and litigation guardian pursuant to the Patients Property Act and Supreme Court Civil Rules.
The PGT has broad powers of investigation, monitoring, and review of services including the ability to affect all aspects of a person’s life from personal care to financial planning and legal rights. That said, it can be difficult to determine which portions of the adult guardianship legislation are in force and determine which provisions govern the extent of the PGT’s powers.
The Adult Guardianship Act
Several amendments linking the provisions of Part 2.1 of the Adult Guardianship Act to the Patients Property Act came into force on December 1, 2014. The definition of “committee” now includes a statutory property guardian appointed under Part 2.1 of the Adult Guardianship Act, and a committee appointed pursuant to a certificate issued before December 1, 2014; new s. 3.1 confirms that a person who was declared incapable pursuant to a certificate of incapability under the Patients Property Act before December 1, 2014, has the rights to reassessment and review found in ss. 34, 35, and 37 of the Adult Guardianship Act; and new s. 18(2) requires all committees, to the extent reasonable, to foster the independence of the incapable adult, and to encourage the adult’s involvement in any decision-making that affects the adult.
There have been four amending acts to the Adult Guardianship Act: Adult Guardianship Statutes Amendment Act, 1999, SBC 1999, c. 25; Adult Guardianship and Planning Statutes Amendment Act, 2007, SBC 2007, c. 34, Miscellaneous Statutes Amendment Act, 2011, SBC 2011, c. 5, sections 1 and 2 amend sections 1 and 17 of the Adult Guardianship Act as enacted by the Adult Guardianship and Planning Statutes Amendment Act, 2007; and Justice Statutes Amendment Act, 2014, SBC 2014, c. 9, sections 1-9 amend sections 32-35, 37 and 63 of the Adult Guardianship Actas enacted by the Adult Guardianship and Planning Statutes Amendment Act, 2007.
The Adult Guardianship Act, RSBC 1996, c. 6, is now in force as follows:
- Sections 1-3 and 44-53, 54(1), (2)(a)-(d) and (f)-(i) and (3), 55-64 have been in force since February 28, 2000.
- Sections 60.2, 62.2(1), 63(1) and (2)(t) came into force, and sections 40-43 were repealed, effective September 1, 2011.
- Part 2.1 (heading) and sections 32, 33(2)(b) and (3), 34(b) to (d), 35 and 37 (3) and (4), and sections 62.1, 62.3 and 63 (2)(a)-(f), (o)-(p) and (s) of the Act came into force on December 1, 2014.
Effect of Changes on Guardianship
Under Part 2.1 of the Act, the PGT may be appointed as statutory property guardian / committee of estate of an incapable adult to manage their financial affairs after investigations by health authorities and the PGT indicate the certificate of incapability process is the best option for assisting an adult who has been assessed as being mentally incapable regarding their financial decision-making. The Patients Property Act continues to be the legislation governing the process for the court appointment of a committee for an incapable adult.
A certificate of incapability may be issued by a Health Authority Designate, which gives the PGT authority to make the adult’s financial and legal decisions unless the adult is an aboriginal person living on reserve. The process involves four core steps: determining whether there is a need; assessing the capability of the adult; decision to be made by the Health Authority Designate; and second assessment, reassessment, or court review.
Part 1: Determination of Need
The need for the Certificate of Incapability process is usually completed through an investigation by the PGT or by health authority staff. Investigations are typically initiated as a result of a report or concern made to a designated agency or the PGT. The reports may come from family members, friends, the public, health and social service providers, care facilities, or financial institutions. The process is designed to identify the way in which the adult needs help, the abuse or neglect that is affecting the adult, and whether the Certificate of Incapability process is the best option.
The PGT has the power (PGT Act, ss. 17–18) to freeze accounts, access confidential information, including bank accounts, handle all aspects of financial planning, and demand substitute decision-makers provide an accounting of assets, income, and expenses. The PGT’s authority to collect information includes requiring production of accounts, securities, or other records. At any point in the Certificate of Incapability process, situations may arise where the PGT can provide “emergency” assistance for up to 120 days (AGA Act, s. 59). The PGT has the authority to take steps to safeguard an adult’s assets (PGT Act, s. 19), which may include stopping withdrawals from a bank account or halting the sale of property.
Possible outcomes of a PGT and / or designated agency investigation include a determination that the:
- Adult is capable and the investigation ends;
- Adult is able to make an enduring power of attorney or a s. 7 Representation Agreement naming someone to assist with managing their affairs;
- Adult is not capable but informal supports to assist are sufficient;
- Adult is referred to available health care, social, legal, accommodation, or other services;
- Substitute decision-maker is confirmed as complying with their duties and can continue making financial decisions for the adult;
- Substitute decision-maker is found not to be complying with their duties and the adult or the adult’s assets are at risk, but someone close to the adult takes steps to obtain authority to manage the adult’s affairs which may require an application to court;
- Designated agency may consider other more formal legal remedies to keep the adult safe; and
- All alternatives may have been exhausted and the only workable solution seems to be for the PGT to act as the adult’s committee of estate, appointed through the Certificate of Incapability process.
Part 2: Assessment of Capability
Assessments under Part 2.1 of the Adult Guardianship Act are required to have two components – a medical component and a functional component, which are required to be completed within six months of the Report of Assessment of Incapability and ideally in as close time proximity to each other as possible. Physicians can conduct both components of the assessment. Qualified Health Care Providers can only complete the functional component. The assessing physician bills the PGT for the cost of the assessment, which the PGT can recover from the adult’s estate if appointed as committee of estate.
The medical component must be (1) conducted by a physician within six months before the assessment report is completed; and (2) consist of one or more examinations and all resulting diagnoses and prognoses relevant to the adult’s incapability to manage that adult’s financial affairs (Statutory Property Guardianship Regulation, Part 3). The functional component must be (1) conducted by a Qualified Health Care Provider; and (2) consist of one or more evaluations of the adult’s understanding of, and ability to manage, their financial affairs (Statutory Property Guardianship Regulation, Part 3).
Before conducting the medical or functional component of an assessment, it is now mandatory that the Qualified Health Care Provider responsible for that component to advise the adult of all of the following (Statutory Property Guardianship Regulation, s. 6 (1)):
- The adult is being assessed to determine whether they are incapable of managing their financial affairs;
- The assessment may be used to determine whether they will have, or continue to have, a statutory property guardian;
- The adult can refuse to be assessed, in which case the assessment may be conducted using observational information and information gathered from other sources;
- The adult may have a person of their choosing present during all or part of the assessment unless, in the opinion of the Qualified Health Care Provider, that person’s presence would disrupt or in any way adversely affect the assessment process;
- If the assessment is completed, the adult may have a copy of the assessment report from the person who completes the report; and
- The adult may ask questions of, and raise concerns with, the Qualified Health Care Provider with respect to the assessment and the results of the assessment.
That said, if the Qualified Health Care Provider conducting either assessment component has reason to believe that providing the advice will result in serious physical or mental harm or significant damage or loss to the adult’s property, the Qualified Health Care Provider can decide not to provide the required information. The assessment process for the medical and functional components involves collecting collateral information about the adult’s ability, medical examinations, and interviewing the adult.
An adult is incapable of managing their financial affairs if, in the opinion of a Qualified Health Care Provider, any of the following apply (Statutory Property Guardianship Regulation, s. 9(1)):
a. The adult cannot understand the nature of the adult’s financial affairs, including the approximate value of their business and property, and the obligations owed to their dependents, if any;
b. The adult cannot understand the decisions that must be made or actions that must be taken for the reasonable management of their 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 their financial affairs;
d. The adult cannot understand that the information referred to in this subsection applies to them; or
e. The adult cannot demonstrate that he or she is able to implement, or to direct others to implement, the decisions or actions referred to in paragraph (b).
Items (a) to (d) are of a cognitive nature and item (e) is about the functional ability to carry out financial decisions. The adult is also incapable if they understand (a) to (d) but they cannot carry out or direct others to make financial decisions on their behalf, which can be due to compromised executive functioning. Once the assessments of capability are completed, an Information Package is forwarded to the Health Authority Designate in order to decide the adult’s capability.
Part 3: Decision of Health Authority Designate
Health Authority Designates are peopled designated as having authority to issue Certificates of Incapability under section 32 of the Adult Guardianship Act. They are designated (1) directly by the regional health board or the Provincial Health Authority Services; or (2) if the regional health board has passed a bylaw approved by the Minister of Health.
The Health Authority Designate reviews the Information Package and determines if additional information is required; applies legal criteria to make a decision about whether to issue a certificate of incapability; provides notice of the intention to issue a Certificate of Incapability and opportunity to respond; and decides whether to issue a Certificate of Incapability. In doing so, the Health Authority Designate must consult with the PGT (AGA s. 32 (3.1)(a)), apply the criteria found in AGA s. 32(3), and be satisfied that an adult’s needs would not be sufficiently met by alternative means of assistance.
Prior to issuing the Certificate of Incapability, the Health Authority Designate must notify the adult, the adult’s spouse, or the adult’s near relative of the decision and the reasons for issuing it. The adult, spouse, and / or family member has 10 days after receiving or being deemed to have received the notice to respond. The Adult Guardianship Act does not permit the Health Authority Designate to notify anyone other than these individuals.
Once the Health Authority Designate signs a Certificate of Incapability, the PGT becomes the adult’s statutory guardian or committee of estate (AGA, s. 32(5)). Any enduring power of attorney or representation agreement dealing with the adult’s financial affairs is suspended (PPA, s. 19(1)).
Part 4: Reassessment and Review
After a Certificate of Incapability has been issued, an adult has a right to request a second assessment, reassessment, and court review of the determination of incapability (AGA, s. 33(3)(a)).
Within 40 days after the date the PGT advises the adult that it is the adult’s statutory guardian, the adult, or a person acting on behalf of the adult, may request a second assessment of the adult’s incapability (Statutory Property Guardianship Regulation, s. 13). A different Qualified Health Care Provider should complete the second assessment as it is in the nature of a second opinion. If the adult is determined to be capable on reassessment and the Health Authority Designate accepts the determination of the capability, then the PGT will generate the Cancellation of the Certificate of Incapability and control of the adult’s assets will be returned to the adult.
An adult who has the PGT as statutory property guardian must also be reassessed if (1) the PGT informs the health authority that a reassessment should occur; (2) the adult requests a reassessment and they have not been reassessed within the preceding 12 months; or (3) the Supreme Court orders that a reassessment occur (AGA, s. 34).
Ending Authority of the PGT
Section 37(3) sets out a number of ways that statutory property guardianship ends:
- A Qualified Health Care Provider determines that the adult is capable of managing their financial affairs following a second assessment or a reassessment, notifies the Health Authority Designate and the Health Authority Designate accepts the determination;
- The PGT is the statutory property guardian and the PGT is satisfied that the adult no longer needs a statutory property guardian and has provided notice to the adult that they no longer need a statutory property guardian;
- The court ends the statutory property guardianship under AGA s. 35; or
- The court appoints a committee responsible for managing the adult’s affairs under the Patients Property Act.
If statutory property guardianship ends, the Certificate of Incapability is cancelled (AGA s. 37(4)). The PGT no longer has authority over the adult’s financial affairs and the adult will have authority to manage their financial affairs, unless the court has appointed a person to be committee of estate under the Patients Property Act.
Conclusion and Issues to Consider
“Incapable” adults include mentally incompetent persons, persons under disability, and “patients.” Litigation involving incapable adults present unique issues and challenges. They are precluded from the usual processes for Examinations for Discovery. They may have a litigation guardian, a power of attorney, a representative, or a committee acting on their behalf. This triggers different standards, requirements, and conduct in legal dealings including, for example, requirements for document production and the potential to have their transactions be set aside.
In certain circumstances, the “incapable” adult may be capable for litigation purposes. It may be appropriate to bring an application to have the adult be deemed capable or to have specific orders made with respect to the adult’s capability. The adult may also have periods of capacity, which brings them outside the framework of adult guardianship legislation, and the involvement of the PGT may be different depending on their role in providing services to the adult.
Where the PGT acts as an adult’s statutory property guardian, provisions of the Freedom of Information and Protection of Privacy Act and Personal Information Protection Act are triggered. The Adult Guardianship Act also has provisions dealing with the right to the adult’s information and requirements for disclosing same. Records and documents related to different aspects of the incapability process may be subject to different disclosure requirements.
In the course of litigation, it is important to keep in mind the broad powers of the PGT, the mandate of their Services to Adults program, the provisions and changes to the Adult Guardianship Actincluding Part 2.1 and applicable Regulations, and the protection afforded to incapable adults through a cross-section of legislation.
This paper was written by Lisa Picotte-Li, former lawyer at Whitelaw Twining.
