The law has always recognized that all adults (persons 19 and older) are presumed to be capable of making their own decisions, including decisions about their:
- health (e.g. the right to refuse health care on moral or religious grounds and the right to change their mind)
- personal care;
- financial affairs; and
- legal affairs.
On February 28, 2000, four Acts (or parts of them) came into force which recognize this principle and expand it to cover situations where adults are not able to make some or all of these decisions (e.g. medical emergencies, age-related problems like Alzheimer’s, or other mental health problems). They also provide greater protection to vulnerable adults who might be subjected to abuse or neglect, their voices drowned by others.
How do these laws work?
The Health (Consent) and Care Facility (Admission) Act
This Act covers “normal” situations where a person can consent to treatment as well as situations where a person is unable to make a health care decision and has no Representation Agreement (see below) in force. It formalizes what has been the practice of many medical facilities in obtaining consent for medical treatment. Only the first two and fifth parts of this Act came into effect in February, 2000.
In general they say:
- where medical treatment is required, a health care provider must not treat the adult without the adult’s
- consent or the consent of the person’s substitute decision-maker, guardian or representative, or if there is none, the support of the person’s family or close friend;
- an exception is a medical emergency when the health care provider has no time to obtain consent — the provider may, after consulting a second health care provider, give the minimum treatment necessary to prevent serious physical or mental harm;
- a substitute decision-maker must be (in the following order) the adult’s spouse, child, parent, brother or sister, or anyone else related by birth or adoption to the adult – as long as they are an adult and have been in contact in a positive way with the person during the preceding year; the substitute decision-maker must be willing to consult with the person requiring care and comply with any of the adult’s wishes, regardless of when or how they were expressed;
- in deciding whether to consent to medical treatment for the adult, the substitute decision-maker must consider 1) the adult’s current wishes, 2) whether the treatment will help, is necessary, or might harm the person, and 3) whether there are better options;
- where an adult can’t make the decision, has no representation agreement, and has no substitute decision-maker available, consent may be sought from the Public Guardian and Trustee.
The Representation Agreement Act
This Act covers situations where a person wants to choose one or more “representatives” whom they trust to make decisions for them about their health, personal care, finances and/or legal matters if they become incapable of making those decisions independently.
A Representation Agreement (RA) is designed to allow a person to customize the way in which decisions will be made affecting him/her to fit the person’s values, beliefs, and wishes. If a person has a written RA and becomes unable to make decisions, the RA will control how decisions are made. Any adult can be a representative. In addition, the Public Guardian and Trustee or a financial institution can be a representative (although a financial institution can only make financial decisions, not personal decisions).
The RA should include the following:
- The person’s name and the purpose of the RA.
- The name of the person’s representative(s) and his/her relationship to the representative(s).
- The responsibilities of each of the representative(s).
- Specific wishes and instructions. The following is an example only: If the situation should arise in which there is no reasonable expectation of my recovery to a state of enough mental and physical capacity to participate in my own medical and health care decisions, then I request that medication be mercifully administered to me to alleviate suffering and that I be allowed to die and not be kept alive by artificial means.
- Directions as to whether the person’s representatives must agree or consult with anyone else before making a decision.
- A statement as to whether the person wants a Monitor (someone who stays in close contact with the person to make sure that the RA is working. The Monitor does not make decisions).
- A statement as to when the RA is to begin.
The RA must be signed and witnessed by two witnesses, neither of whom can be a representative or alternative representative. It must then be registered.
The Adult Guardianship Act
Part 3 of this Act (the only part that came into effect in February, 2000) covers situations where an adult is potentially being abused or neglected. It allows designated agencies to investigate incidents of reported abuse and work out solutions with the adult who is being subjected to abuse, or seek court relief if problems cannot be resolved otherwise.
The Public Guardian and Trustee Act
This Act sets out the powers of the Public Guardian and Trustee (PGT) to investigate financial abuse and it sets out the role of the PGT under the other three Acts. This Act replaced the Public Trustee Act.
In summary, these new laws enhanced the right of individuals to control their future, while seeking to protect those who find themselves subject to abuse or neglect.
For more information, you may contact The Public Trustee of British Columbia, Adult Guardianship Project, #700-808 West Hastings Street, Vancouver, B.C. V6C 3L3. Tel: (604) 775-0847, Fax: (604) 775-0207. Website: www.trustee.bc.ca
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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