B.C.’s Dated Guardianship Laws May Finally Change


This week, B.C.’s Ombudsperson Kim Carter released a report entitled “No Longer Your Decision” that heavily critiques our province’s current regime for dealing with incapable adults who do not have family members or others willing to assume guardianship. In those cases a “certificate of incapability” may be issued by a health authority without a court order, resulting in the Public Guardian and Trustee being appointed to manage the adult’s financial affairs.

In her report, Carter notes that the Patients Property Act provisions relating to issuance of certificates of incapability can be traced back to the English Lunacy Act of 1890. Law reform initiatives since the 1990s have noted that the Patients Property Act is vulnerable to a challenge under the Charter of Rights and Freedoms and does not provide adequate safeguards for vulnerable adults. Amazingly, we have had replacement legislation in the form of the Adult Guardianship Act on the books for two decades, but despite numerous subsequent revisions, most of its provisions have never been brought into force.

The report makes fourteen recommendations to the Minstry of Justice for legislative or regulatory change. The Ministry has committed to implementing eleven of these recommendations by July 1, 2014. This means that by the middle of next year, the Adult Guardianship Act will finally replace the Patients Property Act as the law in B.C.

The report also makes numerous recommendations to the PGT and to health authorities to improve their practices. The PGT and health authorities have been responsive and have already accepted and begun implementing many of these recommendations, while they wait for the legislative changes that will allow them to adopt more modern and patient-centered processes.