Minister of Justice and Attorney General Shirley Bond has issued the following statement in response to the recent ombudsperson's report on B.C.'s process for appointing the public guardian and trustee to manage the finances of incapable adults:

"We have received the ombudsperson's report, No Longer Your Decision: British Columbia's Process for Appointing the Public Guardian and Trustee to Manage the Financial Affairs of Incapable Adults, and thank her for the recommendations she has made to improve the certificate of incapability process in B.C. Our government is committed to protecting vulnerable adults and as such we recognize the importance of having a modern and effective system of adult guardianship in place - one that balances the need for protecting individual autonomy and protecting against abuse.

"We have committed to implementing 12 of the 14 recommendations directed to the Ministry of Justice. Most of these will be implemented by or before July 1, 2014, by bringing into force parts of the Adult Guardianship and Planning Statutes Amendment Act and by introducing legislative amendments during the fall 2013 legislative session. The final two recommendations will be reviewed and we will report publicly on those within 18 months.

"The new legislation will ensure that during the process of determining whether or not an adult is incapable, prescribed standards will be followed that protect the rights of the individual by requiring:

• A current in-person medical assessment conducted by a physician.

• Both a medical and a functional assessment before making a finding of incapability.

• Advance notice of a potential finding of incapability is given to the adult and their family along with time to respond if they have concerns.

"One recommendation we are accepting would allow the public guardian and trustee access to a court process to apply to act as a temporary guardian in urgent situations. This will be implemented as part of a revised court guardianship process when those changes come into force. Until that time, we will be working to implement an interim solution under the current law, the Patients Property Act.

"The B.C. government recognizes that the current adult guardianship framework outlined in the Patients Property Act needs updating. That's why we passed the Adult Guardianship and Planning Statutes Amendment Act in 2007. This legislation is intended to provide a modernized, enhanced adult guardianship framework.

"We are committed to moving forward as quickly as we can on these items. They are being acted upon in three phases as resources become available.

"In March, I will be releasing specific details that outline our implementation plans. These details are particularly important for the health authorities, health-care providers and the public guardian and trustee, all of whom do valuable and important work in supporting individuals requiring assistance with decision-making."

A backgrounder follows.

Media Contact:

James Beresford
Government Communications and Public Engagement
Ministry of Justice
250 356-6423

BACKGROUNDER

• In B.C., under the current adult guardianship law, the Patients Property Act, there are two processes by which a person may be found to be mentally incapable and a substitute decision maker is appointed:

• A court-ordered process for the appointment of a committee. This can relate to property or personal care decisions and the court can appoint a family member, a friend, a trust company or the public guardian and trustee to be the committee; and

• The certificate of incapability process, by which a certificate of incapability is issued and the public guardian and trustee becomes committee of an adult's financial affairs.

• Bringing adult guardianship reforms into effect for both adult guardianship processes is an important goal for government. In 2007, the legislature passed an extensive package of reforms in this area:

• The first phase came into force on Sept. 1, 2011. This modernized the law relating to B.C.'s suite of incapability planning tools: enduring powers of attorney, representation agreements and advance directives.

• The second phase, enhancing the rights of adults undergoing the certificate of incapability process will come into force by July 1, 2014. This phase will address 11 of the recommendations made by the ombudsperson.

• The third phase, relating to court guardianship will come into force following phase 2 once the necessary resource implications are determined and resources are available.

• Currently in B.C, approximately 3,000 individuals have a committee by means of the certificate of incapacity process.

• The ombudsperson makes 14 recommendations directed to the Ministry of Justice in her report, No Longer Your Decision: British Columbia's Process for Appointing the Public Guardian and Trustee to Manage the Financial Affairs of Incapable Adults.

• Specific actions to implement the ombudsperson's recommendations include:

• Bringing into force sections of the Adult Guardianship and Planning Statutes Amendment Act, 2007.

• Introducing legislative amendments in the next legislative session.

• The recommendations are:

• Recommendation 3 - The Ministry of Justice take steps to provide the Public Guardian and Trustee with access to a court process to apply to act as a temporary property guardian in urgent situations.

• Recommendation 4 - The Ministry of Justice take steps to require that all certificates of incapability are based on a current in person assessment conducted by a physician.

• Recommendation 5 - The Ministry of Justice, in consultation with the Ministry of Health, include in regulation standards for conducting medical assessments as part of the certificate of incapability process.

• Recommendation 6 - The Ministry of Justice take steps to require that all certificates of incapability be based on both a medical and a functional assessment.

• Recommendation 11 -The Ministry of Justice take steps to require in regulation that adults be provided with timely notice of adequate information about functional assessments.

• Recommendation 12 - The Ministry of Justice, in consultation with the Ministry of Health, include in regulation standards for conducting functional assessments as part of the certificate of incapability process.

• Recommendation 14 - The Ministry of Justice take steps to require in regulation that adults are offered copies of their functional assessments.

• Recommendation 16 - The Ministry of Justice take steps to establish a legally binding definition of financial incapability and a test for determining when an adult is incapable of managing his or her finances.

• Recommendation 18 - The Ministry of Justice take steps to require in regulation that health authorities:

• notify adults and families of the intent to issue a certificate of incapability;

• confirm that adults and families have received the notice; and

• ensure that there is sufficient time for adults and families to respond to the notice.

• Recommendation 20 - The Ministry of Justice take steps to require that health authorities provide the adult and his or her family with adequate written reasons for the decision to issue a certificate of incapability.

• Recommendation 22 - The Ministry of Justice take steps to require that the health authority making the decision to issue a certificate of incapability is required to inform the adult and his or her family of its decision, and provide them with a copy of the certificate.

• Recommendation 25 - The Ministry of Justice take steps to require that an adult has access to a reassessment on request before a certificate of incapability is issued and within a reasonable timeframe after a certificate of incapability is issued.

• Recommendation 26 - The Ministry of Justice takes steps to establish an appeal to a tribunal for an adult who wishes to dispute a decision that has found him or her incapable of managing his or her financial and legal affairs.

• Recommendation 28 - The Ministry of Justice take steps to require a committee to encourage the adult's participation in the decision-making and management of the adult's financial affairs.

Media Contact:

James Beresford
Government Communications and Public Engagement
Ministry of Justice
250 356-6423