February 04, 2022 | EXPLAINER
Recently, media organizations have begun publishing “explainer” pieces in addition to news stories and opinion pieces. Our research and reporting on the apprehensions by authorities of Qualicum Beach residents, Eileen and Trevor Wicks, and the intense reader/public interest in their plight, prompted Second Opinion QB to publish this, our first Explainer. — Editor
Canada, as we often hear, is governed by the rule of law, with protected rights that define us as a liberal democracy. At least that’s the theory.
In this Explainer, we provide a brief introduction to some of the laws that exist supposedly to protect the rights of law-abiding individuals from arbitrary, unwanted or unwarranted intrusion into their lives, particularly by agents of the state who are entrusted by us to deliver health care and law enforcement services, as depicted in the stories we publish about Qualicum Beach, B.C. residents, Eileen and Trevor Wicks.
Specifically, we examine those laws that govern the actions that we can take as we plan for a potential decline in our capacity to look after ourselves before we die. We start by focussing on some practical questions, how to protect our assets and how to protect our “person.” We end with a frank discussion of what can go wrong, even with the best laid plans, and even if a lawyer has drawn up your legal documents.
Caveats: None of the information in this or related articles is to be construed as legal advice to the reader. Simply put, we do our best to explain the intentions, as we understand them, of the laws expressed in statutes and regulations, as well as how they can actually play out in real life.
Protecting your assets
Who will help look after my money and property if I am away temporarily, or suffer a debilitating injury, or even mild cognitive decline where I sometimes can’t remember if I have received and paid my Hydro bill?
You can enter into a written legal agreement with a person(s) of your choice called a “Power of Attorney.” In British Columbia, two types of powers of attorney deal with finances and property: general power of attorney (POA), and enduring power of attorney (EPOA). Both types of power of attorney must be entered into while you are capable of making decisions. The authority for your designated attorney to act on your behalf ends if you become bankrupt, and immediately upon your death.
An important distinction: A general power of attorney will also end if you become mentally incapable and can no longer make decisions. However, an enduring power of attorney, properly worded, remains in effect even if you become mentally incapable.
The person you designate to be your legal EPOA, as well as the alternate EPOA if you choose that option, obviously needs to be someone you trust completely and unconditionally.
These agreements are established and governed under the BC Power of Attorney Act. This legislation was overhauled and significantly amended September 1, 2011. If your POA or EPOA was created prior to that date, it’s a good idea to make sure it remains in compliance with B.C.’s current legislation.
The obligations of a POA are spelled out in Part 2 of the legislation. For example, “When managing and making decisions about the adult’s financial affairs, an attorney must act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.”
Another important distinction: A POA is limited to decision making related to financial and legal matters. A POA or EPOA cannot make medical, health or personal care decisions for you.
Who will make these medical and health decisions for me when I am unable to?
If you want to plan ahead and choose who will make health care, treatment and personal care decisions for you if or when you no longer can, you can draw up what is called a “Representation Agreement,” naming whomever you wish to make those decisions on your behalf.
The person you appoint is called your Representative. Another term you might hear to describe a Representative is Substitute Decision Maker (SDM). This is the person who will be making decisions on your behalf when you are unable to give consent or directions yourself. For example, you are injured in a car accident or suffer a cerebral stroke and are temporarily unable to speak, or are certified as incapable of making personal decisions about where to live or what kind of health interventions you consent to, and, just as importantly, what health interventions you do not consent to.
Your appointment of a person to be your legal Representative and substitute decision-maker is governed in BC through the Representation Agreement Act, first enacted in 2000 but, like the B.C. Power of Attorney Act, also amended in 2011.
There are two types of Representation Agreements (RA). You can choose either a section 7 RA or a section 9 RA. The main difference between a Section 7 and a Section 9 Representation Agreement is that if the RA is drawn up under Section 9, your chosen Representative is authorized to make end-of-life decisions on your behalf — but if your RA is drawn up under Section 7, your Representative does not have the authority to make end-of-life decisions.
If you have specific end-of-life instructions or directives that you want to be clearly on the record and communicated to all, and followed, you can and should spell them out in the section 9 RA legal document. Your Representative is thereafter required to comply with any instructions you expressed.
To ensure compliance with the terms of your Representation Agreement, you can also appoint another person as a Monitor to oversee the activities and decisions of your Representative(s).
Will my personal care, health intervention, and end-of-life directives be respected and followed?
The answer to that question is, unfortunately … not always – even when you have a rock-solid section 9 RA and a Representative who is fully aware of the directions you have given in advance. An example of how hard reality can hit is the case of Eileen and Trevor Wicks of Qualicum Beach, B.C. whose story RCMP squad enters BC condo without legal authority, apprehends couple in their 70s, was recently published in Second Opinion QB.
In the remainder of this article, we will describe three of the potential pitfalls that enable people, who do not have your best interests guiding their actions, to wrong you and your chosen Representative.
Pitfall #1: Murky rules and hidden exceptions about Consent
There is another piece of legislation that can muddy the waters if a health care provider doesn’t want to comply with your very clearly expressed directives. It’s the B.C. Health Care (Consent) and Care Facility (Admission) Act. For example, this legislation (Section 16) does not even acknowledge that your Representative is and will be your principal permanent substitute decision maker, ahead of, in order of standing, your spouse, child, parent, sibling, grandparent, grandchild, etc.
The B.C. Health Care (Consent) and Care Facility (Admission) Act also states (section 18) that a “temporary” SDM “has authority to refuse consent to health care necessary to preserve life, but only if there is substantial agreement among the health care providers caring for the adult that the decision to refuse substitute consent is medically appropriate.” [emphasis ours] This completely ignores and contradicts the authority granted by a person to their chosen Representative under section 9 of the B.C. Representation Agreement Act which states unequivocally that the Representative, in refusing consent, does NOT require the agreement of any health care providers, whether the health care providers consider the decision medically appropriate or not.
In other words, your chosen Representative’s authority could be rendered null and void should someone in British Columbia’s health care system — arbitrarily and without notice — “appoint” a different “temporary” SDM to make important medical and care decisions for you.
The authors of this legislation (lawyers) appear to have inadvertently (incompetence) or intentionally (duplicity) built-in multiple loop-holes to enable health care providers, without notice, to ignore your directives and the decision-making authority of your designated Representative.
Pitfall #2: Perceived Emergencies – ignoring the Representative’s rights
Equally problematic is the “emergency admission” power, granted to health care providers under section 24 of the Health Care (Consent) and Care Facility (Admission) Act, to haul a person off to the hospital, without consent, if “immediate admission of the adult is necessary to preserve the adult’s life, or prevent serious physical or mental harm to the adult.” In that case health care providers don’t even have to inform the person’s legal Representative, let alone get their consent to the “emergency” intervention.
“Necessary” according to whom, you might well ask. Very good question; there appear to be no safeguards in the Act to prevent abuse of these draconian powers, nor any accountability if egregious mistreatment of the person was, in fact, unnecessary.
In the event of a so-called “emergency” forced admission to hospital, the health care provider is obliged to obtain substitute consent within 72 hours for “continued admission.”
The very same provision for arbitrary, involuntary emergency apprehension and confinement to hospital — against a person’s will and expressed wishes — shows up in section 59 of the Adult Guardianship Act (AGA). A cautionary tale about Health Authority abuse of that statute is provided later in this article.
Pitfall #3: Elbowing the POA or Representative out of the picture completely
When designating a specific person to be your legal Representative, you can also identify an Alternate Representative, a person whom you would trust to assume all of the authority of your designated Representative — if, and only if, your Representative dies, becomes incapable, or resigns (in accordance with the RA Act.)
Here’s the kicker. Without even telling your Representative or you, your designated Alternate Representative can simply sign a Statutory Declaration stating that one of the above conditions has occurred and bingo, s/he is now your new Representative. This is, quite simply, unbelievable negligence (or intentional duplicity) by the lawyers who created this monstrous provision in the law, just waiting to be abused, and which, one could argue, encourages abuse. A complicit health care provider can simply accept this declaration, bogus or not, and use it as their authority going forward. There appear to be no consequences for not informing the patient’s/person’s duly and legally appointed Representative that their authority has been eclipsed and assumed by another person.
By the way… this same loophole applies to B.C.’s Power of Attorney legislation.
You and your designated Representative and/or Power of Attorney are not only vulnerable to betrayal by an Alternate, but also to blind snitching by someone wanting to cause harm.
The snitch (who could be a health care worker, a family member or someone else with a grudge) simply has to alert the B.C. Public Guardian and Trustee (PGT) — a quasi-governmental organization with vast resources and financial assets, and immense power — not known for accountability or transparency. For example, someone could tell the PGT that a person’s legal POA “is abusing or neglecting the person for whom the attorney is acting, or is incapable of acting as an attorney, or otherwise failing to comply with an enduring power of attorney or with the duties of an attorney.”
That’s all it takes. Little or no hard evidence is required. Thus engaged, the PGT can arbitrarily decide to ask the Court to assign somebody else, or even take on the job themselves.
Can the Courts help?
Sometimes. Sort of, as we explain below. But the reality is that at least two-thirds of us are prevented from access to legal help to seek redress and justice, simply by the large dollar sign barring the courtroom door.
Occasionally a breakthrough case occurs. Here’s an example directly related to misuse of section 59 of the Adult Guardianship Act (AGA). The Fraser Health Authority (FHA), responsible for health care delivery for a large swath of Greater Vancouver (aka Lower Mainland), were handed their ass by Madame Justice Warren in the BC Supreme Court when FHA involuntarily detained AH [name withheld] without judicial authorization or any independent oversight, under the purported authority of section 59 of the Adult Guardianship Act.
In her ruling (2019 BCSC 227), Justice Warren found that “FHA’s conduct in detaining AH for nearly a year without judicial authorization was a flagrant overstepping of its authority under the AGA. … There is no reasonable interpretation of the AGA that would authorize a designated agency, [e.g. a hospital] to detain someone, without judicial authorization, for nearly a year. …FHA’s conduct in detaining AH was not only procedurally unfair, it also was such as to justify findings of very serious Charter violations.”
And, Justice Warren was just getting started.
“AH’s right to be free from arbitrary detention under s. 9 of the Charter was violated by FHA because FHA did not have the authority to detain her. …AH’s rights to be promptly provided with reasons for her detention under ss. 7 and 10(a) of the Charter were violated by FHA. …AH’s rights to retain and instruct counsel without delay and to be informed of that right under s. 10(b) of the Charter were violated by FHA.”
You get the picture. This is a small but welcome piece of justice and, at very least, a black eye for Fraser Health Authority for its egregious, deceitful and disrespectful behaviour. But, will this make any difference, are there any meaningful consequences or deterrent to prevent this happening again to other people? Obviously not, given the similar tactics used by Island Health regarding Eileen and Trevor Wicks of Qualicum Beach, B.C. on January 12, 2022.
As Justice Warren commented in her ruling, “There is an immense power imbalance between an AGA-designated agency [like Island Health which operates hospitals and other health services on Vancouver Island] and the vulnerable adults who are subject to its authority. The serious consequences of their view of the scope of that authority for future cases cannot be overstated.”
Did you hear about this Fraser Health Authority court decision in the mainstream media? Anything at all from the justice or health beat reporters, or the many skilled investigative reporters plying their trade in Canada? No, we didn’t either. Frankly, to prevent the depth and breadth of health authority abuse of power that is happening today, a lot more sunlight needs to be shone on what is going on beyond the public’s gaze, and the consequences for wrong-doing need to be substantial.
Second Opinion QB will be addressing this bigger picture in a future article.