1) What can you do to plan for mental incapability?

• used by business persons so that they don’t actually have to be there
• form of agency - agent is given "power of attorney" document and is then able to do what is stated in the document
• restricted to financial matters and property
• can restrict activities or give broad based powers

• if you give power of attorney to an agent and then become incapable, the document is "null and void" because you are then unable to check up on the agent
• the PUBLIC TRUSTEE can investigate potential (alleged) misuse under Patient’s Property Act and can declare person incompetent and get property back

• planning tool
• authority under Power of Attorney to continue even under mental incompetence (uses language like "notwithstanding my subsequent infirmary")
• can make Power of Attorney active only in future (this is NOT available under the BC Act) US has "springing Power of Attorney" allowing documents to take effect if a certain even happens.
• can give lawyer written instructions to only release document if a specified event happens in the future (same effect as US "springing Power of Attorney")

1. mental health official can declare incompetence

• Director of provincial facility or officer in charge of psychiatric unit can sign certificate of incompetence
• cheap
• quick
• person (patient) has no rights at all - section 1
• has effect of making patient incapable of handling their finances
• financial responsibilities is transferred to the Public Trustee (appointed by Attorney General)
• Public Trustee becomes "committee of estate" - right to make financial decisions is committed to the Public Trustee
• no review, no appeal
• banks will tip off Public Trustee to investigate if large amounts of money are being withdrawn
• anyone can refer to Public Trustee for investigation
• Public Trustee has limited powers
• can get person evaluated to see if they are incompetent

1. Family members or Public Trustee can go to court with 2 medical affidavits (2 MDs) that the person is incompetent

• duty under the act to notify the person being declared incompetent
• when family goes to court they usually are seeking to be committee
• court can ask for fuller and better evidence
• if person refuses then can’t do anything
• court can declare person incapable of handling estate (assign committee of estate) and incapable of making personal decisions (assign committee of person)
• section 20 allows anyone (usually Public Trustee) to go to court to have order of incapability reversed ("set aside") and all effects under the order reversed (reverse all decisions made by committee)

7) Health Act Section 69 - grants powers to Medical Health Officer

• where a person is a serious risk to themselves or to someone else MHO can get court order to enter a home
• must give 4 days notice
• can clean up house and/or put person in hospital

8) Adult Guardianship Act - legislation not in effect yet

• if you are capable, you can appoint someone to be your representative in financial, personal and/or health care matters
• must specify what to do if you have more than 1 representative and they disagree (need to specify another person to break the tie)
• must appoint a monitor - who has authority to check on decisions made by representatives
• if no monitor is appointed, the Public Trustee becomes the monitor
• monitor can only inform Public Trustee if there is a problem
• triggering the agreement - when a certain event happens then the Representation Agreement takes effect (similar to "Springing Powers of Attorney")
• allows person to give directives to representative(s)
• need to have some sort of registry system (so that hospitals can check if there is a representative named for a person and contact them) - this is NOT going to happen
• any dispute or conflict goes to the Public Trustee to investigate
• representatives can quit being the representative, then the Public Trustee becomes the rep.

Consent to Treatment

10) Health Care (consent) and Care Facility (admission) Act - not in effect yet

• Representative (substitute decision maker) is:

1. person-appointed representative
2. court-appointed guardian
3. spouse - married/ common law/ partner
4. child or parent
5. sibling
6. any other relative by blood or adoption
7. public trustee can appoint a friend

• representative can consent to treatment, removal of life support, etc. if in agreement with health care providers
• similar with respect to care facility admission
• decisions are reviewable

Mental Incapacity

8) Adult Guardianship Act

• first part repeals Patient Property Act
• court would appoint guardian/decision-maker in certain or all or combination of areas of person’s life (finances, health care, accommodation, etc.)
• allows form of adult protection
• situation where someone is victimized, protects where the criminal code can not
• situations of abuse or self abuse can be investigated by an agency
• could not take action until the investigation is completed and the report given to provincial court
• only for mentally incompetent
• allows for "stay away" order
• situations of danger to self, police can take to hospital
• can certify under section 20 of Mental Health Act
• family can recommend or GP

Mental Health Act - purpose: to ensure that mentally ill persons get treatment

• section 1
• mentally ill persons - suffering from disorder of the mind and must not be able to function in environment (because of disorder of the mind) in addition disorder must require medical treatment and person must require care, supervision, and control for their own protection or protection of others.
• definition of "protection" is broad
• McCorkle v. Riverview Hospital
• advocacy group asked court to find the protection part unconstitutional under section 7 of the Charter.
• court said that protection means protection from harm (financial, vocational, family and social harm)
• must be treatment available under the Mental Health Act (treatment available in an acute care facility)
• committal criteria - mentally ill person

1) Voluntary Patient

• section 19 (Mental Health Act)
• persons under 16 years of age are deemed incapable - only parents can make decisions
• over 16, persons are deemed capable
• under 16 has right to review
• mature minor rule (section 16, Infant’s Act) does NOT apply
• section 20 (Mental Health Act) - certified involuntary patients
• 2 certificates are needed to be admitted
• once admitted
• patient can be kept up to 1 month
• before the 1 month expires, can renew for another month
• before that expires, can renew for 3 months, etc...
• persons made involuntary patient
• must be told on arrival or as soon after as they can understand

1. right to call a lawyer
2. right to go to court
3. right to complete application for review

• review process
• after review panel receives the application for review responds within 14 days
• panel made up of 3 people

• review panel decides if the person is in or out of the facility
• in B.C. if certified then MUST get treatment, capable or not
• section 25.2 - involuntary inpatient
• if director of facility authorizes treatment, then deemed that patient has given consent
• Fleming v. Reid
• 2 schizophrenic people, when competent, refused further treatment, advance directive NOT to consent to treatment
• court held that because they were capable at the time, the advance directives stand
• section 24
• possibility for police apprehension if apparently mentally disordered and potential to hurt themselves or someone else to take to hospital for evaluation
• can hold up to 72 hours
• can certify incapable if 2 certificates by 2 different physicians state incapable
• section 24.2
• Mental Health Officer or family member can get warrant to have patient assessed
• only in emergency - likely to harm
• section 31
• hospital can place patient "on leave" under certain conditions
• examples of conditions
• defined living conditions (group home, etc.)
• take medications
• see physician
• hospital keeps some control