Search Results | Clear Search | Previous (in doc) | Next (in doc) | Prev Doc | Next Doc
This Act is current to December 1, 2014
This Act has "Not in Force" sections. See the Table of Legislative Changes.

Adult Guardianship Act

[RSBC 1996] CHAPTER 6

Contents
Part 1 — Introductory Provisions
 1 Definitions
 2 Guiding principles
 3 Presumption of capability
Part 2 — Not in force
 4–31 Not in force
Part 2.1 — Statutory Property Guardians
 32 Obtaining a statutory property guardian
 33 When Public Guardian and Trustee becomes statutory property guardian
 34 When adult must be reassessed
 35 Court review of finding of incapability
 36 Not in force
 37 When authority ends
 38 and 39 Not in force
 40–43 Not in force. Repealed
Part 3 — Support and Assistance for Abused and Neglected Adults
 44 Purpose of this Part
 44.1 Definition
 45 Application of this Part
 46 Reporting abuse or neglect
 47 Determining if the adult needs support and assistance
 48 Power to investigate
 49 Power to enter to investigate
 50 Duty to report offence
 51 Outcome of investigation
 52 Adult's involvement in decision making
 53 Support and assistance plan
 54 Application for support and assistance orders
 55 The hearing
 56 Support and assistance orders
 57 Review of support and assistance orders
 58 Review of orders preventing contact
 59 Emergency assistance
 60 Appeal from Provincial Court decision
 60.1 Protection from liability
Part 4 — Administrative and Miscellaneous Provisions
 60.2 Transfer of property by incapable adult
 61 Designated agencies and organization of community agencies
 62 Right to information
 62.1 Disclosing information
 62.2 Supreme Court jurisdiction
 62.3 Costs of an application
 63 Power to make regulations
 64 Offences
 65 Not in force
 66 Commencement

Part 1 — Introductory Provisions

Definitions

1  In this Act:

"abuse" means the deliberate mistreatment of an adult that causes the adult

(a) physical, mental or emotional harm, or

(b) damage or loss in respect of the adult's financial affairs,

and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors;

"adult" means anyone who has reached 19 years of age and, for all purposes incidental to an application under section 6 (2), includes a person who has reached 18 years of age;

"attorney" means a person authorized by a power of attorney or enduring power of attorney to make decisions on behalf of another;

"care facility" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"court" means

(a) in this Part and Parts 2 and 2.1, the Supreme Court,

(b) in Part 3, the Provincial Court, and

(c) in Part 4, the Supreme Court or the Provincial Court;

"designated agency" means

(a) [Repealed 2007-34-1.]

(b) in Part 3, a public body, organization or person designated under section 61 (a.1) for the purposes of that Part, and

(c) in Part 4, a public body, organization or person referred to in paragraph (a) or (b);

"enduring power of attorney" means a power of attorney made under Part 2 of the Power of Attorney Act;

"financial affairs" includes an adult's business and property, and the conduct of the adult's legal affairs;

"health authority designate" means any person designated by a prescribed body as having authority to issue a certificate of incapability under section 32;

"health care" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"health care provider" means a person who is licensed, certified or registered under a prescribed Act to provide health care;

"near relative" means an adult child, a parent, an adult brother or sister, a grandparent or any other adult relation by birth or adoption;

"neglect" means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect;

"power of attorney" means a power of attorney other than an enduring power of attorney;

"qualified health care provider" means a medical practitioner or a member of a prescribed class of health care providers;

"representation agreement" means an agreement made under the Representation Agreement Act;

"representative" means a person authorized by a representation agreement to make decisions on behalf of another;

"self-neglect" means any failure of an adult to take care of himself or herself that causes, or is reasonably likely to cause within a short period of time, serious physical or mental harm or substantial damage or loss in respect of the adult's financial affairs, and includes

(a) living in grossly unsanitary conditions,

(b) suffering from an untreated illness, disease or injury,

(c) suffering from malnutrition to such an extent that, without intervention, the adult's physical or mental health is likely to be severely impaired,

(d) creating a hazardous situation that will likely cause serious physical harm to the adult or others or cause substantial damage to or loss of property, and

(e) suffering from an illness, disease or injury that results in the adult dealing with his or her financial affairs in a manner that is likely to cause substantial damage or loss in respect of those financial affairs;

"spouse" means a person who

(a) is married to another person, and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living with another person in a marriage-like relationship;

"statutory property guardian" means a person who, under Part 2.1, may make decisions regarding an adult's financial affairs.

Guiding principles

2  This Act is to be administered and interpreted in accordance with the following principles:

(a) all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters;

(b) all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs;

(c) the court should not be asked to appoint, and should not appoint, guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered.

Presumption of capability

3  (1) Until the contrary is demonstrated, every adult is presumed to be capable of making decisions about the adult's personal care, health care and financial affairs.

(2) An adult's way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about anything referred to in subsection (1).

Part 2 — Not in force

Not in force

4–31  [Not in force.]

Part 2.1 — Statutory Property Guardians

Obtaining a statutory property guardian

32  (1) If a person has reason to believe that an adult may be incapable of managing the adult's financial affairs, the person may

(a) if the person is a health care provider, request a qualified health care provider to assess the adult's incapability, or

(b) in any case, notify the Public Guardian and Trustee of the person's belief, and the Public Guardian and Trustee may request a qualified health care provider to assess the adult's incapability.

(2) If, after assessing the adult according to prescribed procedures, the qualified health care provider determines that the adult is incapable of managing that adult's financial affairs, the qualified health care provider may, using the prescribed form, report the adult's incapability to a health authority designate.

(3) If a health authority designate receives a report under subsection (2) of an adult's incapability, the health authority designate may issue a certificate of incapability in respect of the adult, if satisfied that, based on the report and any additional information the designate receives,

(a) the adult needs to make decisions about the adult's financial affairs,

(b) the adult is incapable of making those decisions,

(c) the adult needs, and will benefit from, the assistance and protection of a statutory property guardian,

(d) the needs of the adult would not be sufficiently met by alternative means of assistance, and

(e) either

(i)   the adult has not granted power over all of the adult's financial affairs to an attorney under an enduring power of attorney, or

(ii)   an attorney has been granted power as described in subparagraph (i) but is not complying with the attorney's duties under the Power of Attorney Act or the enduring power of attorney, as applicable.

(3.1) A health authority designate must not issue a certificate of incapability unless the health authority designate has first

(a) consulted with the Public Guardian and Trustee,

(b) notified the adult and, if contact information is known to the health authority designate, the adult's spouse or a near relative of the adult of the intention to issue the certificate and the reasons for issuing it, and

(c) given each person who received notice under paragraph (b) a reasonable opportunity to respond.

(3.2) Despite subsection (3.1) (b), notification need not be given to the adult, to another person referred to in that subsection, or to either the adult or another person referred to in that subsection, if the health authority designate has reason to believe that notification may result in

(a) serious physical or mental harm to the adult, or

(b) significant damage or loss to the adult's property.

(4) If the health authority designate issues a certificate of incapability, the health authority designate must do all of the following:

(a) forward the certificate to the Public Guardian and Trustee;

(b) advise the adult and, if contact information is known to the health authority designate, the adult's spouse or a near relative of the adult that a certificate of incapability in respect of the adult has been issued, and provide each of them with a copy of the certificate.

(5) The Public Guardian and Trustee is the adult's statutory property guardian as of the date on which the certificate of incapability was signed by the health authority designate who issued it.

(6) [Repealed 2014-9-1.]

(7) This section does not apply if the adult has a committee, appointed under the Patients Property Act, responsible for managing the adult's affairs.

When Public Guardian and Trustee becomes statutory property guardian

33  (1) [Not in force.]

(2) On becoming an adult's statutory property guardian, the Public Guardian and Trustee

(a) [Not in force.]

(b) must advise the adult, and, if contact information is known to the Public Guardian and Trustee, the adult's spouse or a near relative of the adult, that

(i)   the Public Guardian and Trustee is the adult's statutory property guardian and may make decisions respecting the adult's financial affairs, and

(ii)   the adult has the rights described in subsection (3).

(3) On being advised that the Public Guardian and Trustee is an adult's statutory property guardian,

(a) the adult, or a person acting on behalf of the adult, may request, within the prescribed time, a second assessment of the adult's incapability conducted by a qualified health care provider in accordance with prescribed assessment procedures, and

(b) if, following the second assessment, a qualified health care provider determines that the adult is incapable of managing that adult's financial affairs, the adult, or a person acting on behalf of the adult, may apply to the court under section 35 for a review of the determination.

When adult must be reassessed

34  The incapability of an adult who has a statutory property guardian must be reassessed by a qualified health care provider, in accordance with prescribed assessment procedures, if

(a) [Not in force.]

(b) the adult's statutory property guardian informs the body that designated the health authority designate who issued the certificate of incapability that a reassessment should occur,

(c) the adult requests a reassessment and has not been reassessed within the preceding 12 months, or

(d) the court orders that a reassessment occur under section 35 (3).

Court review of finding of incapability

35  (1) If an adult has been determined to be incapable of managing the adult's financial affairs under section 33 (3) or 34, the adult may apply to the court for a review of that determination.

(2) The following are parties to a review under this section:

(a) the adult who has been determined to be incapable;

(b) the body that designated the health authority designate who issued the certificate of incapability;

(c) if ordered by the court, a person appointed, under the Patients Property Act, as committee for the adult following a declaration under that Act that the adult is incapable of managing himself or herself.

(3) The court may order the adult to attend at the time and place the court directs and submit to an assessment of incapability conducted by a qualified health care provider in accordance with prescribed assessment procedures.

(4) The court may

(a) confirm the determination of incapability, or

(b) reject the determination of incapability and order that the statutory property guardianship is ended.

Not in force

36  [Not in force.]

When authority ends

37  (1) and (2) [Not in force.]

(3) Statutory property guardianship ends if

(a) the Public Guardian and Trustee is the statutory property guardian and the Public Guardian and Trustee

(i)   is satisfied that the adult no longer needs a statutory property guardian, and

(ii)   has provided notice to the adult that the adult no longer has a statutory property guardian,

(b) following a second assessment under section 33 (3), or a reassessment under section 34,

(i)   a qualified health care provider determines that the adult is capable of managing the adult's financial affairs and notifies a health authority designate of the determination, and

(ii)   the health authority designate accepts the determination of capability and notifies the Public Guardian and Trustee of the determination,

(c) the court ends the statutory property guardianship under section 35, or

(d) the court appoints, under the Patients Property Act, a committee responsible for managing the adult's affairs.

(4) If statutory property guardianship ends under subsection (3), the certificate of incapability issued under section 32 is cancelled.

Not in force

38 and 39  [Not in force.]

Not in force. Repealed

40–43  [Not in force. Repealed 2006-33-2.]

Part 3 — Support and Assistance for Abused and Neglected Adults

Purpose of this Part

44  The purpose of this Part is to provide for support and assistance for adults who are abused or neglected and who are unable to seek support and assistance because of

(a) physical restraint,

(b) a physical handicap that limits their ability to seek help, or

(c) an illness, disease, injury or other condition that affects their ability to make decisions about the abuse or neglect.

Definition

44.1  In this Part, "guardian" includes a committee under the Patients Property Act.

Application of this Part

45  (1) This Part applies whether an adult is abused or neglected in a public place, in the adult's home, a relative's home, a care facility or any other place except a correctional centre.

(2) This Part does not

(a) override the rights in section 4 of the Health Care (Consent) and Care Facility (Admission) Act, or

(b) prevent an adult's representative or guardian from refusing health care for the adult in accordance with wishes the adult expressed while capable, even if the refusal will result in the adult's death.

Reporting abuse or neglect

46  (1) Anyone who has information indicating that an adult

(a) is abused or neglected, and

(b) is unable, for any of the reasons mentioned in section 44, to seek support and assistance,

may report the circumstances to a designated agency.

(2) Despite the Freedom of Information and Protection of Privacy Act and the Personal Information Protection Act, a person must not disclose or be compelled to disclose the identity of a person who makes a report under this section.

(3) No action for damages may be brought against a person for making a report under this section or for assisting in an investigation under this Part, unless the person made the report falsely and maliciously.

(4) A person must not

(a) refuse to employ or refuse to continue to employ a person,

(b) threaten dismissal or otherwise threaten a person,

(c) discriminate against a person with respect to employment or a term or condition of employment or membership in a profession or trade union, or

(d) intimidate, coerce, discipline or impose a pecuniary or other penalty on a person

because the person makes a report or assists in an investigation under this Part.

(5) In subsection (4), "discipline" includes

(a) a refusal to issue or renew a licence or certificate to practise a profession or trade, and

(b) a denial or cancellation of permission to practise in a hospital or a refusal to renew that permission.

Determining if the adult needs support and assistance

47  (1) A designated agency must determine whether an adult needs support and assistance if the agency

(a) receives a report under section 46,

(b) has reason to believe that an adult is abused or neglected, or

(c) receives a report that the adult's representative, guardian or monitor has been hindered from visiting or speaking with the adult.

(2) If the designated agency determines that the adult does not need support and assistance, the designated agency

(a) must take no further action, and

(b) may advise the Public Guardian and Trustee.

(3) If the designated agency determines that the adult needs support and assistance, the designated agency may do one or more of the following:

(a) refer the adult to available health care, social, legal, accommodation or other services;

(b) assist the adult in obtaining those services;

(c) inform the Public Guardian and Trustee;

(d) investigate to determine if the adult is abused or neglected and is unable, for any of the reasons mentioned in section 44, to seek support and assistance.

Power to investigate

48  (1) In conducting an investigation described in section 47 (3) (d), a designated agency must make every reasonable effort to interview the adult.

(2) In addition, the designated agency may

(a) interview the adult's spouse, the adult's near relatives, the adult's friends or anyone else who may assist in the investigation, and

(b) obtain any information that the circumstances require, including a report from

(i)   a health care provider who has examined the adult,

(ii)   any agency that provides or has provided health or social services to the adult, and

(iii)   any person that manages the adult's financial affairs.

(3) Section 62 applies to information referred to in subsection (2) (b).

Power to enter to investigate

49  (1) A designated agency that is conducting an investigation described in section 47 (3) (d) may apply to the court for an order under subsection (2) if someone from the designated agency

(a) believes it is necessary to enter any premises in order to interview the adult, and

(b) is denied entry to the premises by anyone, including the adult.

(2) On application under subsection (1), the court may make an order authorizing either or both of the following:

(a) someone from the designated agency to enter the premises and interview the adult;

(b) a health care provider, as defined in the Health Care (Consent) and Care Facility (Admission) Act, to enter the premises to examine the adult to determine whether health care should be provided.

(3) If an application for a court order will result in a delay that could result in harm to the adult, a justice of the peace may issue a warrant authorizing someone from the designated agency to enter the premises and interview the adult.

(4) The court may only make an order under subsection (2), and a justice of the peace may only issue a warrant under subsection (3), if there is reason to believe that the adult

(a) is abused or neglected, and

(b) is, for any of the reasons mentioned in section 44, unable to seek support and assistance.

Duty to report offence

50  If a designated agency has reason to believe that a criminal offence has been committed against an adult about whom a report is made under section 46, the designated agency must report the facts to the police.

Outcome of investigation

51  (1) After conducting an investigation described in section 47 (3) (d), the designated agency may do one or more of the following:

(a) take no further action;

(b) refer the adult to available health care, social, legal, accommodation or other services;

(c) report the case to the Public Guardian and Trustee or another agency;

(d) [Repealed 2007-34-10.]

(e) apply to the court for an interim order requiring a person

(i)   to stop residing at and stay away from the premises where the adult lives, unless the person is the owner or lessee of the premises,

(ii)   not to visit, communicate with, harass or interfere with the adult,

(iii)   not to have any contact or association with the adult or the adult's financial affairs, or

(iv)   to comply with any other restriction of relations with the adult,

for a period of up to 90 days;

(f) apply to the court for an order under Part 7 of the Family Law Act for the support of the adult;

(g) prepare a support and assistance plan that specifies any services needed by the adult, including health care, accommodation, social, legal or financial services.

(2) An order may be made under subsection (1) (e) without notice to the adult or a person against whom the order is sought, if there are reasonable grounds for believing that proceeding without notice is necessary for the immediate protection of the adult.

(3) On application under subsection (1) (e), the court may make an interim order described in that subsection if the designated agency establishes that there is reason to believe

(a) the person has abused the adult, and

(b) the adult is unable, for any of the reasons mentioned in section 44 (c), to seek support and assistance.

Adult's involvement in decision making

52  The designated agency must involve the adult, to the greatest extent possible, in decisions about how to

(a) seek support and assistance, and

(b) provide the support and assistance necessary to prevent abuse or neglect in the future.

Support and assistance plan

53  (1) A designated agency that prepares a support and assistance plan for an adult must explain the plan and the proposed services to the adult.

(2) If health care services or admission to a care facility is proposed in the support and assistance plan, the designated agency must ensure that the Health Care (Consent) and Care Facility (Admission) Act is complied with.

(3) When explaining the support and assistance plan to the adult, the designated agency

(a) must communicate with the adult in a manner appropriate to the adult's skills and abilities, and

(b) may allow the adult's spouse or any relatives or friends who accompany the adult or who offer their assistance, to help the adult to understand or demonstrate an understanding of the support and assistance plan.

(4) If the adult decides not to accept the services proposed in the support and assistance plan, they must not be provided except under section 56 (3).

(5) If the adult decides not to accept the services proposed in the support and assistance plan and the adult appears to be incapable of making that decision, the designated agency may ask the Public Guardian and Trustee to arrange for an assessment of whether the adult is incapable.

Application for support and assistance orders

54  (1) A designated agency that prepares a support and assistance plan may apply to the court for an order authorizing the provision of services to the adult if the report of the assessment under section 53 (5) is that the adult is incapable of deciding not to accept the services proposed in the plan.

(2) At least 7 days before the date set for hearing the application, the designated agency must serve a copy of the application on the following:

(a) the adult who is the subject of the application;

(b) the adult's spouse or, if the adult has no spouse, a near relative of the adult;

(c) the person in charge of any hospital, facility or residence where the adult may be residing or receiving care;

(d) the Public Guardian and Trustee;

(e) [Not in force. Repealed 2006-33-2.]

(f) the adult's attorney, representative or guardian;

(g) [Repealed 2001-2-5.]

(h) any person against whom an order is sought under section 56 (3);

(i) any other person that the court may direct.

(3) The application must be accompanied by

(a) a support and assistance plan that is prepared by the designated agency and includes a statement of the adult's wishes if known, and

(b) a report of the assessment under section 53 (5).

(4) Subsection (3) (b) does not apply if the only order being sought is an order under section 56 (3) (c).

The hearing

55  (1) Any of the following are entitled to be heard at the hearing of the application for the provision of services to the adult:

(a) the adult;

(b) any person served under section 54 (2);

(c) any person supporting and assisting the adult who is the subject of the application;

(d) any person from the designated agency;

(e) any other person whom the court agrees to hear.

(2) It is up to the designated agency to prove on the balance of probabilities, that the adult who is the subject of the application needs and would benefit from the services proposed in the support and assistance plan.

Support and assistance orders

56  (1) On hearing the application for the provision of services to the adult, the court must consider whether or not the adult

(a) is abused or neglected,

(b) is unable to seek support and assistance because of an illness, disease, injury or other condition that affects his or her ability to make decisions about the abuse or neglect, and

(c) needs and would benefit from the services proposed in the support and assistance plan.

(2) When considering the things referred to in subsection (1), the court must take into account the information in the documents mentioned in section 54 (3).

(3) If the court is satisfied about the matters set out in subsection (1), the court may

(a) make an order for the provision of support and assistance to the adult without his or her consent,

(b) make an order under Part 7 of the Family Law Act for the support of the adult,

(c) order a person the court finds has abused the adult

(i)   to stop residing at and stay away from the premises where the adult lives, unless the person is the owner or lessee of the premises,

(ii)   not to visit, communicate with, harass or interfere with the adult,

(iii)   not to have any contact or association with the adult or the adult's financial affairs, or

(iv)   to comply with any other restriction of relations with the adult,

(d) order a person the court finds has abused or neglected the adult to pay for, or contribute towards, the adult's maintenance or services to be provided for the adult, or

(e) make any other order the court thinks is appropriate and in the best interests of the adult.

(4) In an order under subsection (3) (a), the court must specify the kinds of support and assistance that are to be provided for the adult, including any of the following:

(a) admission to an available care facility, hospital or other facility for a specified period of up to one year;

(b) the provision of available health care;

(c) the provision of available social, recreational, educational, vocational or other similar services;

(d) supervised residence in a care home, the adult's home or some other person's home, for a specified period of up to one year;

(e) the provision, for a specified period of up to one year, of available services to ensure that the adult's financial affairs are properly managed and protected, including any services that may be offered by the Public Guardian and Trustee.

(5) In an order made under this section, the court must choose the most effective, but the least restrictive and intrusive, way of providing support and assistance.

(6) If an order is made under this section, the designated agency must serve a copy of the order on the persons who were served with the application under section 54 (2).

(7) An order made under subsection (3) (a) terminates one year after it is made or on an earlier date specified by the court.

Review of support and assistance orders

57  (1) A designated agency that obtained a support and assistance order under section 56 (3) (a) must review the need for the order if

(a) the designated agency has reason to believe that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly since the order was made, or

(b) the adult, or a spokesperson for the adult, requests a review and has a substantial reason for doing so.

(2) If the review under subsection (1) demonstrates that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly, the designated agency must apply to the court to have the order changed or cancelled.

(3) A designated agency that obtains a support and assistance order under section 56 (3) (a) may do either or both of the following:

(a) review the need for the order before it terminates;

(b) apply to the court for a renewal of the order.

(4) On application under subsection (2) or (3), the court may

(a) change or cancel the order if the court is satisfied that any of the adult's needs or the adult's ability to make decisions about support and assistance has changed significantly, or

(b) renew the order for a further period of up to one year if the court is satisfied that the adult still needs the support and assistance provided under section 56 (3) (a).

(5) A support and assistance order under section 56 (3) (a) may be renewed only once.

Review of orders preventing contact

58  (1) A person against whom an order is made under section 56 (3) may apply to the court to change or cancel the order.

(2) On application under subsection (1), the court may change or cancel the order or make any other order it considers to be in the best interests of the adult who has been found to be abused or neglected.

Emergency assistance

59  (1) A person from a designated agency may do anything referred to in subsection (2) without the adult's agreement if

(a) the adult is apparently abused or neglected,

(b) it is necessary, in the opinion of the person from the designated agency, to act without delay in order to

(i)   preserve the adult's life,

(ii)   prevent serious physical or mental harm to the adult, or

(iii)   protect the adult's property from significant damage or loss, and

(c) the adult is apparently incapable of giving or refusing consent.

(2) In the circumstances described in subsection (1), the designated agency may do one or more of the following:

(a) enter, without a court order or a warrant, any premises where the adult may be located and use any reasonable force that may be necessary in the circumstances;

(b) remove the adult from the premises and convey him or her to a safe place;

(c) provide the adult with emergency health care;

(d) inform the Public Guardian and Trustee that the adult's financial affairs need immediate protection;

(e) take any other emergency measure that is necessary to protect the adult from harm.

(3) After providing the adult with the assistance and services mentioned in subsection (2), the designated agency may conduct investigations under sections 48 and 49.

Appeal from Provincial Court decision

60  (1) A party may appeal to the Supreme Court from an order made by the Provincial Court under this Part.

(2) The time limit for bringing an appeal under subsection (1) is 40 days, beginning on the day after the order is made by the Provincial Court.

(3) An appeal is brought by

(a) filing a notice of appeal in a registry of the Supreme Court, and

(b) serving a copy of the notice of appeal on the parties to the proceeding in which the order of the Provincial Court was made, unless a judge of the Supreme Court orders otherwise.

(4) The Supreme Court Civil Rules apply to an appeal under subsection (1) to the extent that they are consistent with this section.

(5) An appeal does not operate as a stay or suspend the operation of the order under appeal, unless a judge of the Supreme Court orders otherwise.

(6) After hearing the appeal, the Supreme Court may do one or more of the following:

(a) confirm or rescind the order of the Provincial Court;

(b) make any order that the Provincial Court could have made;

(c) direct the Provincial Court to conduct a new hearing.

(7) On application, the Supreme Court may extend the time limit for bringing an appeal.

Protection from liability

60.1  (1) A person acting on behalf of or under the direction of a designated agency is not personally liable for anything done or omitted in good faith in the exercise or performance or the intended exercise or performance of a power, duty or function conferred under this Part on a designated agency.

(2) Subsection (1) does not absolve a designated agency or the government from vicarious liability for an act or omission for which it would be vicariously liable if this section were not in force.

Part 4 — Administrative and Miscellaneous Provisions

Transfer of property by incapable adult

60.2  (1) If an adult transfers an interest in the adult's property while the adult is incapable, the transfer is voidable against the adult unless

(a) the interest was transferred for full and valuable consideration, and that consideration was actually paid or secured to the adult, or

(b) at the time of the transfer, a reasonable person would not have known that the adult was incapable.

(2) In a proceeding in respect of a transfer described in subsection (1), the onus of proving a matter described in subsection (1) (b) is on the person to whom the interest was transferred.

Designated agencies and organization of community agencies

61  The Public Guardian and Trustee may

(a) [Repealed 2007-34-16.]

(a.1) by regulation, designate as agencies for the purposes of any or all of the provisions of Part 3 any public body, organization or person and limit their functions as designated agencies by reference to any factor that the Public Guardian and Trustee considers advisable,

(b) organize networks of public bodies, organizations or persons for the provision of support and assistance to abused or neglected adults,

(c) establish an agency to assist in planning or developing a network of public bodies, organizations or persons and in training staff, and

(d) research the most effective ways of providing community and other services to carry out the purposes of this Act.

Right to information

62  (1) A designated agency, a qualified health care provider and the Public Guardian and Trustee have the right to all the information necessary to enable them to perform their duties, powers and functions under this Act.

(2) Any person who has custody or control of information that a designated agency, a qualified health care provider or the Public Guardian and Trustee is entitled to under subsection (1) must disclose that information to the designated agency, qualified health care provider or Public Guardian and Trustee, as applicable.

(3) This section overrides

(a) any claim of confidentiality or privilege, except a claim based on solicitor-client privilege, and

(b) any restriction in an enactment or the common law about the disclosure or confidentiality of information, except a restriction in section 51 of the Evidence Act.

Disclosing information

62.1  (1) A designated agency may disclose information obtained under this Act for the purposes of exercising the powers or performing the duties or functions of the designated agency under this Act.

(2) The Public Guardian and Trustee may disclose information obtained under this Act for the purposes of exercising the powers or performing the duties or functions of the Public Guardian and Trustee.

(3) A qualified health care provider who performs an assessment of an adult's incapability under this Act may disclose information obtained under this Act for the purposes of providing a report of the assessment to

(a) the Public Guardian and Trustee,

(b) a health authority designate, for the purposes of exercising the powers or performing the duties or functions of the health authority designate under this Act,

(c) a designated agency, for the purposes of exercising the powers or performing the duties or functions of the designated agency under this Act, and

(d) a person who

(i)   makes a request, in writing, to the qualified health care provider for the report, and

(ii)   confirms in the request that the report is to be used only for the purpose of an application to the court for an order under this Act.

(4) Subsection (3) overrides any restriction in an enactment or the common law about the disclosure or confidentiality of information.

Supreme Court jurisdiction

62.2  (1) Nothing in this Act

(a) limits the inherent jurisdiction of the court to act in a parens patriae capacity, or

(b) deprives a person of the right to ask the court to exercise that jurisdiction.

(2) [Not in force.]

Costs of an application

62.3  For any matter for which an application may be made under Part 2 or 2.1, or section 62.2 (2), the court may order that the costs of the application be paid from the property of the adult who is the subject of the application.

Power to make regulations

63  (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing bodies for the purpose of the definition of "health authority designate" in section 1, and conferring on those bodies the authority to designate a person for the purpose of issuing a certificate of incapability under section 32;

(a.1) permitting a regional health board prescribed under paragraph (a) to authorize, by bylaw approved by the minister responsible for the Health Authorities Act, an employee to make the designation referred to in paragraph (a) on behalf of the regional health board;

(b) for the purpose of the definition of "health care provider" in section 1, prescribing Acts for the purposes of Part 2.1 and for the purposes of Part 3;

(c) prescribing classes of health care providers whose members may act as qualified health care providers, and conferring a discretion on bodies that regulate health care providers to put limits or conditions on those whom they regulate respecting eligibility to act as qualified health care providers;

(d) respecting procedures for assessments of incapability, including

(i)   prescribing different procedures for assessments made for different purposes,

(i.1)   prescribing procedures if an assessment or part of an assessment is carried out by more than one qualified health care provider,

(ii)   prescribing factors to be considered in an assessment of incapability, and

(iii)   prescribing indicators of capability or incapability;

(d.01) respecting requests by a qualified health care provider to other qualified persons for the purposes of seeking advice respecting an assessment;

(d.1) providing for exemptions from reassessments of incapability in relation to adults who are being discharged from a facility designated under the Mental Health Act;

(e) respecting the making of an assessment report and the contents of the report;

(f) prescribing forms and certificates for the purposes of this Act;

(g) to (n) [Not in force.]

(o) prescribing offences for the purposes of sections 27 and 37;

(o.1) respecting the service and content of a notice, and the opportunity to respond, for the purposes of section 32 (3.1), including respecting deemed receipt of a notice;

(p) prescribing time limits within which a person must apply for a second assessment of incapability under section 33 (3);

(q) and (r) [Not in force.]

(s) respecting disclosure of information by the Public Guardian and Trustee under section 62.1;

(t) defining words and expressions used but not defined in this Act.

Offences

64  (1) A person who

(a) contravenes section 46 (5),

(b) obstructs or hinders a person who is conducting an investigation under section 48 or 49, or

(c) contravenes an order made under section 51 (3) or 56 (3) (c),

commits an offence.

(2) Section 5 of the Offence Act does not apply to this Act or the regulations.

Not in force

65  [Not in force.]

Commencement

66  This Act comes into force by regulation of the Lieutenant Governor in Council.