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B.C. Reg. 115/2014
O.C. 413/2014
Deposited June 23, 2014
effective December 1, 2014

Adult Guardianship Act

Statutory Property Guardianship Regulation

Note: Check the Cumulative Regulation Bulletin 2015 and 2016
for any non-consolidated amendments to this regulation that may be in effect.

[includes amendments up to B.C. Reg. 203/2014, November 24, 2014]

Link to Point in Time

Contents
Part 1 — Definitions and Application
1Definitions
2Application
Part 2 — Prescribed Persons
3Health care providers
4Health authority designates
Part 3 — Conducting Assessments
5Assessment components
6Information to be given before assessment
7Others may be present
8Assessment may occur without adult
9Test of incapability
10On completing assessment
Part 4 — Certificates of Incapability
11Before issuing certificate of incapability
12Certificate of incapability
13Request for second assessment
14Repealed
Part 5 — Transition
15Application of this Part
16Conducting assessments
Form 1
Form 2

Part 1 — Definitions and Application

Definitions

1  In this regulation:

"Act" means the Adult Guardianship Act;

"assessment" means an assessment of incapability for the purposes of

(a) determining whether to issue a certificate of incapability under section 32 (3) of the Act,

(b) conducting a second assessment under section 33 (3) of the Act, or

(c) conducting a reassessment under section 34 of the Act, including for the purposes of section 35 (3) of the Act;

"assessment report" means an assessment report made in accordance with section 10[on completing assessment].

Application

2  This regulation applies only for the purposes of Part 2.1 of the Act.

Part 2 — Prescribed Persons

Health care providers

3  (1) A person who is licensed, certified or registered under one or more of the following Acts to provide health care is prescribed as a health care provider:

(a) Health Professions Act ;

(b) Social Workers Act .

(2) The classes of health care providers who are prescribed as qualified health care providers are as follows:

(a) registrants of the British Columbia College of Social Workers;

(b) registrants of the College of Registered Nurses of British Columbia;

(c) registrants of the College of Registered Psychiatric Nurses of British Columbia;

(d) registrants of the College of Occupational Therapists of British Columbia;

(e) registrants of the College of Psychologists of British Columbia.

(3) A registrant referred to in subsection (2) may exercise powers and perform duties as a qualified health care provider only if

(a) the board for the college referred to in subsection (2) of which the registrant is a member has established standards, limits or conditions respecting eligibility, by its members, to act as qualified health care providers, and

(b) the registrant is eligible under, and acting in accordance with, all applicable standards, limits and conditions referred to in paragraph (a).

Health authority designates

4  (1) The following are prescribed as bodies that may designate persons as having authority to issue certificates of incapability under section 32 of the Act:

(a) a regional health board within the meaning of the Health Authorities Act;

(b) the Provincial Health Services Authority.

(2) A regional health board prescribed under subsection (1) (a) may authorize an employee, by bylaw approved by the minister responsible for the administration of the Health Authorities Act, to make the designation referred to in that subsection on behalf of the regional health board.

Part 3 — Conducting Assessments

Assessment components

5  An assessment must include both of the following components:

(a) a medical component,

(i) conducted by a medical practitioner within 6 months before the assessment report is completed, and

(ii) consisting of one or more examinations and all resulting diagnoses and prognoses relevant to the adult's incapability to manage that adult's financial affairs;

(b) a functional component,

(i) conducted by a qualified health care provider, and

(ii) consisting of one or more evaluations of the adult's understanding of, and ability to manage, that adult's financial affairs.

Information to be given before assessment

6  (1) Before conducting the medical or functional component of an assessment, the qualified health care provider responsible for that component must advise the adult being assessed of all of the following:

(a) that the adult is being assessed to determine whether the adult is incapable of managing that adult's financial affairs;

(b) that the assessment may be used to determine whether the adult will have, or continue to have, a statutory property guardian;

(c) that the adult can refuse to be assessed, in which case the assessment may be conducted using observational information and information gathered from other sources;

(d) that the adult may have a person of his or her choosing present during all or part of the assessment unless, in the opinion of the qualified health care provider, the person's presence would disrupt or in any way adversely affect the assessment process;

(e) that if the assessment is completed, the adult may have a copy of the assessment report from the person who completes the report;

(f) that 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.

(2) Despite subsection (1), advice need not be given in accordance with that subsection if the qualified health care provider has reason to believe that it may result in

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

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

Others may be present

7  (1) A qualified health care provider may permit a person other than the adult being assessed to be present during all or part of an assessment

(a) if requested by the adult, or

(b) if, in the opinion of the qualified health care provider, it would be necessary or advisable for the purposes of

(i) communicating with the adult, or

(ii) conducting the assessment.

(2) A qualified health care provider may prohibit a person from being present during all or part of an assessment if, in the opinion of the qualified health care provider, the presence of the person would disrupt or in any way adversely affect the assessment process.

(3) Subsection (2) applies even if the adult requests the person to be present.

Assessment may occur without adult

8  An assessment, or part of an assessment, may be conducted without the adult being present, and based on observational information and information gathered from other sources, if

(a) the adult

(i) refuses, in full or in part, to participate in the assessment, or

(ii) cannot reasonably be accessed or is not reasonably able to participate in the assessment, and

(b) the qualified health care provider conducting the assessment is satisfied that the assessment would be completed accurately using the information available.

Test of incapability

9  (1) An adult is incapable of managing the adult's financial affairs if the qualified health care provider determines that any of the following apply:

(a) the adult cannot understand the nature of the adult's financial affairs, including the approximate value of the adult's business and property and the obligations owed to the adult's dependants, if any;

(b) the adult cannot understand the decisions that must be made or actions that must be taken for the reasonable management of the adult's 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 the adult's financial affairs;

(d) the adult cannot understand that the information referred to in this subsection applies to the adult;

(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).

(2) For the purposes of sections 33 (3) and 34 of the Act, a qualified health care provider must consider the changes, if any, in the adult's incapability since the previous assessment and the adult's understanding of those changes.

[am. B.C. Reg. 203/2014, Sch. s. 1.]

On completing assessment

10  (1) On completing an assessment, the qualified health care provider who is conducting the assessment must do all of the following:

(a) complete an assessment report as set out in Form 1;

(b) attach to the assessment report details of

(i) the factors that were considered in making the determination of the adult's capability or incapability,

(ii) the conclusions that were reached on the basis of those factors,

(iii) a summary of the information, if any, gathered under section 8 [assessment may occur without adult], and

(iv) any other matter the qualified health care provider believes to be relevant to the assessment;

(c) advise the adult of the details and the results of the assessment, including the determination of the adult's capability or incapability;

(d) offer to the adult a copy of the report and attachments referred to in paragraphs (a) and (b).

(2) A qualified health care provider need not comply with the requirements of subsection (1) (c) or (d) if the qualified health care provider has reason to believe that it may result in

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

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

Part 4 — Certificates of Incapability

Before issuing certificate of incapability

11  (1) For the purpose of section 32 (3.1) of the Act, a health authority designate must give to the adult and, if contact information is known to the health authority designate, the adult's spouse or a near relative of the adult,

(a) notice of the intention to issue a certificate of incapability, and

(b) written reasons for the issuance of the certificate.

(2) Notice and reasons under subsection (1) may be given as follows:

(a) in person;

(b) by mail, other than by electronic mail, in which case, the notice and reasons are deemed to have been received 7 days after the date of mailing;

(c) by leaving them at the person's residence with an adult whom the health authority designate has reason to believe resides with the adult, in which case, the notice and reasons are deemed to have been received on the date on which the notice and reasons were left.

(3) For the purposes of section 32 (3.1) (c), the adult, spouse or near relative must be given at least 10 days after receiving or being deemed to have received the notice and reasons given under this section to respond to the notice and reasons.

Certificate of incapability

12  A health authority designate may issue a certificate of incapability as set out in Form 2.

Request for second assessment

13  For the purposes of section 33 (3) (a) of the Act, a request for a second assessment must be made within 40 days after the date that the Public Guardian and Trustee gives or sends to the adult the advice that the Public Guardian and Trustee is the adult's statutory property guardian.

Repealed

14  Repealed. [B.C. Reg. 203/2014, Sch. s. 2.]

Part 5 — Transition

Application of this Part

15  (1) In this Part, "director's certificate" means a certificate as described in paragraph (a) of the definition of "patient" in the Patients Property Act.

(2) This Part applies only if all of the following conditions are met:

(a) before December 1, 2014, a person began an evaluation of the incapability of an adult to manage the adult's financial affairs;

(b) the purpose of the evaluation under paragraph (a) was to

(i) assist in determining whether a director's certificate should be issued in respect of the adult, or

(ii) determine whether the adult is incapable of managing his or her financial affairs;

(c) as of December 1, 2014, no decision had yet been made as to whether to issue a director's certificate in respect of the adult;

(d) on or after December 1, 2014, a health authority designate

(i) receives a report, based wholly or in part on the results of the evaluation referred to in paragraph (a), that the adult is incapable of managing his or her financial affairs, and

(ii) must determine whether to issue a certificate of incapability in respect of the adult.

Conducting assessments

16  (1) An evaluation described in section 15 (2) (a) and (b) of this regulation is deemed to be an assessment of incapability for the purposes of determining whether to issue a certificate of incapability under section 32 (3) of the Act if

(a) subject to subsection (2) (a) of this section, the person conducting the evaluation is a qualified health care provider, and

(b) the evaluation is conducted in accordance with Part 3[Conducting Assessments], as modified by this section.

(2) If this Part applies,

(a) despite section 3 (3), only section 3 (2) applies for the purpose of determining who is a qualified health care provider,

(b) despite section 5, only a medical component is required,

(c) despite section 6, but subject to subsection (2) of that section, only the advice described in subsection (1) (a) of that section must be given to the adult,

(d) despite section 9, that section does not apply for the purpose of determining whether an adult is incapable of managing the adult's financial affairs,

(e) despite section 10 (1) (a) and (b), the report received under section 15 (2) (d) is deemed to be in the prescribed form if the report

(i) is in writing,

(ii) includes information sufficient to identify the adult,

(iii) sets out the findings of the person conducting the evaluation, and

(iv) is signed and dated by, and includes contact information for, the person who was conducting the evaluation, and

(f) despite section 10 (1) (c) and (d), those paragraphs do not apply.

Form 1

[en. B.C. Reg. 203/2014, Sch. s. 3.]

Form 2

[Provisions relevant to the enactment of this regulation: Adult Guardianship Act, R.S.B.C. 1996, c. 6, section 63 (2) (a) to (f), (o.1) and (p)]