Legislative Changes Impact Incapacity Planning


In 2007, the provincial government introduced the Adult Guardianship and Planning Statutes Amendment Act which has subsequently been amended several times. Parts of that Act were brought into force on September 1, 2011 resulting in amendments to the following Acts:

  • Power of Attorney Act;
  • Representation Agreement Act;
  • Health Care (Consent) and Care Facility (Admission) Act; and
  • Adult Guardianship Act.

The amendments to the Power of Attorney Act include extensive new provisions concerning enduring powers of attorney. The following are some of the significant changes relating to enduring powers of attorney:

  • The test for capacity of an adult to make an enduring power of attorney is now set out in the legislation (s. 12).
  • The enduring power of attorney must be signed in the presence of two witnesses, or a lawyer (s. 16).
  • The enduring power of attorney must be signed by the attorney before it is valid (s. 17).
  • There is a list of who may be named as an attorney, which excludes certain paid health care providers (s. 18).
  • The common law duties of an attorney are now codified and include the requirement of honesty and good faith. The attorney must make investments in accordance with the Trustee Act, unless specified in the enduring power of attorney (s. 19).
  • If the attorney is aware of property that is subject to a specific testamentary gift, the attorney is not allowed to dispose of that property unless it is necessary (s. 19(3)(d) and s. 67.2 of the Estate Administration Act).
  • An attorney is not allowed any compensation unless the enduring power of attorney expressly authorizes compensation and sets the amount or rate; however they may be reimbursed for reasonable expenses (s. 24).
  • Springing powers of attorney are now permitted (s. 26).
  • Enduring powers of attorney from some other jurisdictions may be recognized in BC provided certain criteria are met (s. 38).
  • Enduring powers of attorney made before September 1, 2011 under the former legislation remain valid (s. 42).

New provisions of the Representation Agreement Act include:

  • A list of who may be named as a representative, which excludes certain paid health care providers (s.5(1)(a)).
  • Changes concerning the Representative’s right to access information and records related to the scope of their authority (s.18).
  • The recognition in BC of Representation Agreements from several other jurisdictions provided certain criteria are met (s. 41).
  • Requirements concerning the Representative’s obligation to keep records (s.42(a.2)).
  • The transitional provisions that apply to existing Representation Agreements (s.44.3(2)).

Pursuant to changes to the Health Care (Consent) and Care Facility (Admission) Act, individuals can now make advance directive (formerly “living wills”) where they can refuse specific health care described in the document (Part 2.1).

The Adult Guardianship Act includes new provisions concerning the abuse and neglect of vulnerable adults, specifically:

  • It protects the identity of the person reporting abuse and neglect to a designated agency, despite the Freedom of Information and Protection of Privacy Act (s.46(2)); and
  • It increases the length of an interim restraining order from 30 to 90 days (s.51(1)(e)).

The above are only some of the changes to estate planning legislation. For a more detailed analysis of the implications of the new amendments, please stay tuned to Your Estate Matters.