This article looks at the general legal and regulatory environment relating to Elder Abuse in British Columbia, and specifically that abuse arising from the improper use of a Power of Attorney. Most Canadian jurisdictions have various laws and regulations in place, to protect vulnerable and elderly people from abuse and neglect. The overall options and obligations to respond to or report elder abuse and neglect depend on the relationship between the various laws and the specific circumstances of abuse or neglect involved in each case. Beyond the issues of reporting neglect and abuse, we shall look at some of the sanctions that exist, where neglect and abuse arise.
In British Columbia, those laws and regulations include:
• Adult Guardianship Act, R.S.B.C. 1996, c. 6
• Adult Guardianship Act, Designated Agencies Regulation, B.C. Reg. 19/2002
• Community Care and Assisted Living Act, R.S.B.C. 2002, c. 75 [CCALA]
• CCALA Residential Care Regulation, B.C. Reg 96/2009, Schedule D
• Health Professions Act, R.S.B.C. 1996, c.183
• Personal Information Protection Act, R.S.B.C. 2003, c. 63 [PIPA]
• Freedom of Information and Protection of Privacy Act, R.S.B.C. 2003, c. 165
By way of background, there is no general public duty to report abuse in the province. According to the Adult Guardianship Act (s. 46), any person may notify a designated agency when an older adult is being abused or neglected and is unable to seek support and assistance. An inability to seek assistance could be caused by physical restraint, physical disability or any condition that affects the ability to make decisions about abuse or neglect (s. 44).
The designated agencies include:
• Community Living BC
• Fraser Health Authority
• Interior Health Authority
• Northern Health Authority
• Vancouver Coastal Authority
• Vancouver Island Health Authority
• Providence Health Care Society.
Powers of Attorney
A Power of Attorney (“POA”) is a legal document whereby a “donor”, authorizes a second person, the “attorney”, to act on their behalf. The document grants power to the attorney to step into the donor’s shoes and to act on their behalf relative to legal and financial matters.
It is important to note, that an attorney acting under a POA is accountable to the donor and may only make decisions that are authorized and that are for the donor’s benefit. The attorney cannot use the donor’s money for other purposes or for the attorney’s benefit. POAs terminate on the adult’s death or when the adult revokes it. A POA also terminates on the adult’s incapability. Since 1978 however, BC law has permitted adults to make an enduring power of attorney (an “EPOA”). An EPOA states that the attorney’s authority continues in the event of the that the adult becomes mentally incapable.
Since 2011, Part 2 of the Power of Attorney Act sets out the attorney’s duties, responsibilities and rights. Similar rules apply when a representative has been appointed under a representation agreement (RA) for routine financial affairs prepared in accordance with s. 7 of the Representation Agreement Act, which came into force in 2000.
While the rules that apply to each type of decision maker are sometimes expressed slightly differently, and/or there may be some distinctions, subject to any instructions in the document, attorneys and representatives (decision makers) are bound by a similar set of responsibilities and duties. Generally, they must:
• not act outside the scope of their authority. This requires being aware of relevant statutory rules and any limits in the document appointing the decision maker;
• act in the adult’s best interests; follow pre-expressed wishes if known; and if there are no known wishes, follow the adult’s known beliefs and values;
• involve the adult in decision making where possible;
• give priority to the adult’s personal care and health care needs;
• invest in accordance with the Trustee Act;
• keep the adult’s property separate from the attorney/representative’s property (e.g. cannot make assets joint with right of survivorship);
• not make gifts, donations or loans except in accordance with the guidelines set in the legislation (see Appendix A and Appendix B);
• not make gifts or loans to him or herself, or pay him or herself unless authorized;
• not make a will or a new beneficiary designation; but see rules for renewing and replacing registered plans already in existence; and,
• keep records of decisions and transactions.
It is also worth noting that the BC legislation defines “financial affairs” and “personal care”.
Decisions as to where someone lives (shelter), dress and social activities fall under “personal care”. While the attorney or representative has authority for paying for the related costs, where the availability of funds is not in issue, the attorney or representative for routine financial affairs does not have authority to make these decisions. Similarly, they do not have authority over health care decisions, a common misunderstanding in the general population. Personal and health care decisions must be made by representatives named in a representation agreement.
Beyond the civil and regulatory sanctions that exist in British Columbia, it is significant to note that section 331 of the Criminal Code of Canada, provides:
“Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted the power of attorney”.
Conclusion
It is important to remember, that the obligations imposed on an attorney under a POA or an EPOA, are clear and absolute. The decision maker, either under the Power of Attorney Act or the Representation Agreement Act, must act with the utmost care and diligence. If there is a breach of the applicable duties, civil and criminal sanctions may result.
For more information of Estate Planning generally, please see our earlier blog post, entitled: Estate Planning – A Primer (British Columbia).
Our lawyers regularly deal with the issues set out in this article, and many other issues related to or arising from wills, estates, POA / EPOA, representation agreements, and probate matters.
If you have any questions or would like advice related to your Will and estate planning needs, please contact us at 604-688-4900 or by email at morgan@barbeau.co or paul@barbeau.co.