Bill 19, Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996

Harnick, Hon. Charles Attorney General

View bill

Status

Versions

Original

Advocacy, Consent and Substitute Decisions

Statute Law Amendment Act, 1995

EXPLANATORY NOTE

Part I: Advocacy Act, 1992

Part I of the Bill repeals the Advocacy Act, 1992.

Part II: Health Care Consent Act, 1995

Part II of the Bill repeals the Consent to Treatment Act, 1992 and replaces it with the Health Care Consent Act, 1995, which is set out in Schedule A. The following are some of the ways in which the new Act differs from the existing Act:

1. The new Act provides a list of things that do not constitute treatment for the purpose of the Act. The list includes assessments of capacity, examinations to determine the general nature of a person's condition and treatment that in the circumstances poses little or no risk of harm to the person. (See section 7 of the new Act and the definition of "treatment" in subsection 2 (1) of the new Act.)

2. The new Act provides definitions of "course of treatment" and "plan of treatment". (See subsection 2 (1) of the new Act.)

3. The new Act updates the definition of "health practitioner" to reflect the terminology of the Regulated Health Professions Act, 1991. (See subsection 2 (1) of the new Act.)

4. The new Act creates a presumption of capacity for all persons. (See subsections 3 (2) and (3) of the new Act.)

5. The new Act removes all references to rights advisers and eliminates all requirements that rights advice or notices respecting rights advice be provided to a person who is found by a health practitioner to be incapable with respect to a treatment.

6. The new Act clarifies the test for informed consent. (See subsections 10 (2) and (3) of the new Act.)

7. Under the new Act, a health practitioner is entitled to presume that consent to a treatment includes consent to a variation or adjustment in the treatment or to continuation of the treatment in a different setting, if the risks and benefits are not significantly different as a result of the variation, adjustment or change of setting. (See section 11 of the new Act.)

8. Under the new Act, if a plan of treatment is developed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan, propose the plan to the person, determine the person's capacity with respect to the plan and ensure that consent is obtained to the plan. (See section 12 of the new Act.)

9. Under the existing Act, if an application is made to the Board for review of a finding of incapacity or for appointment of a representative for an incapable person and the Board renders a decision in the matter, the health practitioner is prohibited from administering the treatment during the seven-day period for commencing an appeal from the Board's decision. Under the new Act, the health practitioner is not prohibited from administering the treatment during this period, unless one of the parties indicates to the health practitioner that he or she intends to appeal. (See section 16 of the new Act.)

10. With respect to the scheme for determining who is authorized to give or refuse consent to a treatment on an incapable person's behalf, the new Act still provides a list of possible substitute decision-makers and ranks the persons on the list. However, parents and children are ranked equally and statements by family members are no longer required. (See subsections 18 (1) and (3) of the new Act.)

Under the existing Act, an attorney for personal care is prohibited from giving or refusing consent if the power of attorney was made after the health practitioner found the grantor to be incapable with respect to the treatment. The new Act removes this prohibition on the basis that a person may be capable of giving a power of attorney for personal care even if he or she is incapable with respect to a treatment.

The new Act specifies that a custodial parent ranks before an access parent and that a person who isprohibited by court order or separation agreement from having access to the incapable person is prohibited from giving or refusing consent on the incapable person's behalf. In addition, the new Act specifies that if a children's aid society or other person is entitled to give or refuse consent in the place of the parent, the parent may not give or refuse consent. (See paragraph 5 of subsection 18 (1) and clause 18 (2) (c) of the new Act.)

The new Act clarifies that two persons are not spouses if they are living separate and apart within the meaning of the Divorce Act (Canada) and that relatives are persons who are related by blood, marriage or adoption. (See subsections 18 (8) and (10) of the new Act.)

Under the new Act, a person may give or refuse consent if he or she believes that no person of higher or equal rank exists, or that although a person of higher or equal rank exists, the person is not a guardian of the person, an attorney for personal care or a Board-appointed representative and would not object to him or her making the decision. This scheme applies whether the person giving or refusing consent is present when the treatment is proposed or has been contacted in some other way. This scheme applies whether the person giving or refusing consent is a guardian of the person, an attorney for personal care, a Board-appointed representative or any other person on the list. The equivalent scheme in the existing Act applies only if the person giving or refusing consent is present when the treatment is proposed and only if he or she is a person other than a guardian of the person, an attorney for personal care or a Board-appointed representative. (See subsection 18 (4) of the new Act.)

The Public Guardian and Trustee is still the decision-maker of last resort if there is no one else on the list to make the decision or if two or more persons of equal rank disagree. (See subsections 18 (5) and (6) of the new Act.)

11. Although statements by family members are not required by the new Act, health practitioners are permitted to rely on assertions made voluntarily by anyone who gives or refuses consent to a treatment on an incapable person's behalf. (See subsection 27 (6) of the new Act.)

12. When a substitute decision-maker is deciding what the incapable person's best interests are, the new Actrequires him or her to consider not only whether the treatment is likely to improve the incapable person's condition or well-being but also whether the treatment is likely to prevent the person's condition or well-being from deteriorating or is likely to reduce the extent or the rate of the deterioration. (See paragraph 1 of clause 19 (2) (c) of the new Act.)

13. Under the new Act, a substitute decision-maker is no longer prohibited from consenting on the incapable person's behalf to a treatment involving the use of electric shock as aversive conditioning.

14. In addition to permitting emergency treatment without consent of an incapable person, the new Act permits emergency treatment without consent of an apparently capable person if the communication required in order for the person to give or refuse consent cannot take place because of a language barrier or because the person has a disability that prevents the communication from taking place. However, reasonable steps must first have been taken to find a practical means of enabling the communication to take place and there must be no reason to believe that the person does not want the treatment. (See section 23 of the new Act.)

15. Under the existing Act, if consent to a treatment is refused on an incapable person's behalf in an emergency, the health practitioner may treat despite the refusal if he or she is of the opinion that the substitute decision-maker did not comply with the decision-making principles set out in the Act, unless the substitute decision-maker is a guardian of the person, an attorney for personal care or a Board-appointed representative. Under the new Act, the health practitioner may treat despite the refusal even if the substitute decision-maker is a guardian of the person, an attorney for personal care or a Board-appointed representative. (See section 25 of the new Act.)

16. In addition to providing health practitioners with protection from liability in respect of the administration of a treatment if it is done with an apparently valid consent, the new Act provides health practitioners with protection from liability in respect of the withholding or withdrawing of a treatment if it is done in accordance with a plan of treatment and with an apparently valid consent. (See section 27 of the new Act.)

17. The new Act provides health practitioners and substitute decision-makers with protection from liability not only in respect of decisions concerning treatment of an incapable person but also in respect of decisions concerning admission of an incapable person to a facility for the purpose of treatment. (See section 29 of the new Act.)

18. The new Act gives the Board broader powers with respect to applications for appointment of a representative for an incapable person. The Board may authorize the representative to give or refuse consent to a particular treatment that has been proposed for the incapable person or may authorize the representative to give or refuse consent to specified treatments or kinds of treatment whenever a health practitioner finds the person incapable with respect to the treatment. (See subsection 31 (5) of the new Act.)

19. The new Act clarifies that applications to the Board for review of a decision to admit a person to a psychiatric facility for the purpose of treatment are not to be made by informal patients, as defined in the Mental Health Act, who are between the ages of 12 and 15, as such persons are provided with a right of application under section 13 of the Mental Health Act. (See subsection 32 (2) of the new Act.)

20. The new Act permits a health practitioner to apply to the Board if he or she is of the opinion that a substitute decision-maker who gave or refused consent to a treatment on an incapable person's behalf did not comply with the decision-making principles set out in the Act. If the Board determines that the substitute decision-maker did not comply with the principles, it may give him or her directions. If the substitute decision-maker does not comply with the directions, he or she is deemed not to be authorized to give or refuse consent to the treatment on the incapable person's behalf. (See section 35 of the new Act.)

21. In addition to providing a scheme for obtaining consent to treatment on behalf of incapable persons, the new Act provides a scheme for obtaining consent on behalf of incapable persons to their admission to certain care facilities and a scheme for obtaining decisions on behalf of incapable residents of those facilities concerning the personal assistance services provided to them under personal assistance plans. The consent to treatment scheme is used as a model for the other two schemes. Definitions of "care facility", "personal assistance service", "personal assistance plan" and"resident" are provided. (See Parts III and IV of the new Act and the definitions in subsection 2 (1) of the new Act.)

22. The name "Consent and Capacity Review Board" is changed to "Consent and Capacity Board". (See section 68 of the new Act.)

23. Under the new Act, the Board is no longer required to sit in panels of three or five members for every application. The chair of the Board may assign a member of the Board to sit alone with respect to a particular application if he or she meets the qualifications specified in the Act and the qualifications specified by the chair. (See section 71 of the new Act.)

24. The new Act eliminates the requirement that at least one of the members of a panel assigned to deal with an application involving capacity must be a person with expertise in evaluating capacity.

25. Under the existing Act, a member of the Board must not take part in the hearing of a matter that concerns a person who was at any time the member's patient or client. Under the new Act, the prohibition applies only if the person was the member's patient or client within the past five years. (See subsection 72 (1) of the new Act.)

26. Under the existing Act, a member of the Board who is an officer or employee of a hospital or other facility or who has a direct financial interest in such a facility must not take part in the hearing of a matter that concerns a person who was at any time a patient or resident of the facility. Under the new Act, the prohibition applies only if the person is currently a patient or resident of the facility. (See subsection 72 (2) of the new Act.)

27. Under the existing Act, the Board must issue written reasons with respect to every application and must provide the reasons to the parties within two days after rendering its decision. Under the new Act, the Board must issue written reasons only if one of the parties so requests, and in that case, must provide the reasons to the parties within two business days after the Board receives the request. (See subsections 73 (4) and (8) of the new Act.)

28. The new Act makes it an offence for a person who makes a decision on an incapable person's behalf concerning atreatment, admission to a care facility or a personal assistance plan to knowingly make a false assertion respecting certain matters or to knowingly contravene wishes that the incapable person expressed while capable and after attaining the age of 16 years. (See sections 80 and 82 of the new Act.)

Part III: Substitute Decisions Act, 1992

Part III of the Bill amends the Substitute Decisions Act, 1992. The proposed amendments include the following changes:

1. With respect to the formalities of executing a power of attorney, the Bill would remove the requirement that a witness have no reason to believe the grantor to be incapable of giving the power of attorney. (See subsections 6 (3) and 31 (2) of the Bill.)

2. Appointment of the Public Guardian and Trustee as statutory guardian of someone's property would no longer terminate a continuing power of attorney. In addition, section 16 of the Act could not be used by a person to make the Public Guardian and Trustee someone else's statutory guardian unless the person has made reasonable inquiries and has no knowledge of the existence of any spouse, partner or relative who intends to apply to court for guardianship or of any attorney under a continuing power of attorney that covers all of the property. If the Public Guardian and Trustee does become a person's statutory guardian, the statutory guardianship may be terminated by an attorney under a continuing power of attorney that covers all of the property. (See subsection 8 (2) and section 10 of the Bill; proposed subsection 16 (2) and section 16.1 of the Act).

3. The existing Act requires that a person seeking to replace the Public Guardian and Trustee as someone's statutory guardian of property be able to post security for the value of the property, unless the requirement is dispensed with by the court or, in cases where the value of property is less than $50,000, by the Public Guardian and Trustee. Under the proposed amendments, security would not be necessary, regardless of the value of the property, unless the Public Guardian and Trustee specifically requires it. The court would retain the power to dispense with security. (See section 11 of the Bill; proposed subsections 17 (6) and (7) of the Act.)

4. In the case of a statutory guardianship of property for a patient in a psychiatric facility who has been discharged with a notice of continuance under the Mental Health Act, the statutory guardianship would no longer terminate automatically six months after the discharge. In the case of a statutory guardianship created under section 16 of the Act, the person subject to the guardianship would no longer be able to terminate it by notice to the guardian. In both these cases, the guardianship would terminate if an assessment determined the person to be capable of managing property. The person could apply to the Consent and Capacity Board to review a finding of incapacity. The court would also be authorized to terminate a statutory guardianship. (See section 13 of the Bill; proposed sections 20, 20.1, 20.2 and 20.3 of the Act.)

5. The court could not appoint the Public Guardian and Trustee as a guardian of property or guardian of the person unless there is no other suitable person who is available and willing to be appointed. (See subsections 14 (3) and 36 (3) of the Bill; proposed subsections 24 (2.2) and 57 (2.2) of the Act.)

6. A guardian of property or attorney under a continuing power of attorney would be prohibited from disposing of property that the guardian or attorney knows is specifically given by the incapable person's will, subject to certain exceptions. (See section 22 of the Bill; proposed section 35.1 of the Act.)

7. An attorney under a power of attorney for personal care would be able to act if the attorney is authorized to act under the Health Care Consent Act, 1995 or, unless the power of attorney specifically requires confirmation of incapacity, if the attorney has reasonable grounds to believe that the grantor is incapable of personal care. A power of attorney for personal care could contain special provisions (e.g. a provision permitting the use of force to obtain a confirmation of incapacity or waiving the right to revoke the power of attorney without a finding of capacity), but these special provisions would not be effective unless, within 30 days after the power of attorney is executed, an assessor finds that the grantor is capable of personal care. (See subsection 30 (6) and section 32 of the Bill; proposed sections 49 and 50 of the Act.)

8. Additional regulation-making authority would permit regulations respecting the compensation of guardians ofthe person and attorneys under powers of attorney for personal care, regulating assessors and assessments, and authorizing health practitioners and other service providers to disclose personal information for the purpose of assessments, guardianship applications and Public Guardian and Trustee investigations. (See section 60 of the Bill; proposed clauses 90 (1) (c.1), (e.1), (e.2), (e.4) and (e.5) of the Act.)

9. References to functions performed by advocates (persons authorized under the Advocacy Act, 1992 to provide advocacy services on behalf of the Advocacy Commission) would be removed from the Act. (See, for example, section 10, subsection 16 (2) and sections 32 and 52 of the Bill, repealing subsections 16 (5), 27 (5), 49 (4), 50 (8) and 76 (1) of the existing Act.)

10. If a guardian has been appointed by the court, further orders could be obtained from the court by way of motion, instead of by application. (See, for example, sections 17, 26, 41, 45 and 53 of the Bill; proposed sections 28, 29, 39, 63, 64, 69 and 77 of the Act.)

Part IV: Amendments to Other Acts

Part IV of the Bill amends other statutes. The Public Guardian and Trustee Act is amended to authorize delegation of the Public Guardian and Trustee's powers and duties to employees in his or her office, to clarify that the Public Guardian and Trustee may be appointed as a trustee under any Act and to allow the Public Guardian and Trustee to charge fees for his or her services. The other amendments in Part IV of the Bill are ancillary to Parts I, II and III.

Part V: Transition, Commencement and Short Title

Part V of the Bill contains transitional provisions preserving the validity of powers of attorney given under earlier legislation and making the Public Guardian and Trustee the guardian of property for certain individuals on behalf of whom he or she acted under earlier legislation. Part V also provides that the Bill comes into force on proclamation.

Bill1995

An Act to repeal the Advocacy Act, 1992,

revise the Consent to Treatment Act, 1992,

amend the Substitute Decisions Act, 1992

and amend other Acts in respect of related matters

CONTENTS


Part		Section(s)
I	Advocacy Act, 1992	1
II	Health Care Consent Act, 1995	2
III	Substitute Decisions Act, 1992	3-60
IV	Amendments to other Acts	61-75
	Charitable Institutions Act	61
	Child and Family Services Act	62
	Children's Law Reform Act	63
	Consent and Capacity Statute Law Amendment Act, 1992	64
	Education Act	65
	Freedom of Information and Protection of Privacy Act	66
	Health Protection and Promotion Act	67
	Homes for the Aged and Rest Homes Act	68
	Liquor Licence Act	69
	Loan and Trust Corporations Act	70
	Long-Term Care Act, 1994	71
	Mental Health Act	72
	Municipal Freedom of Information and Protection of Privacy Act	73
	Nursing Homes Act	74
	Public Guardian and Trustee Act	75
V	Transition, Commencement and Short Title	76-79
Schedule A - Health Care Consent Act, 1995

_________________________

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PART I

ADVOCACY ACT, 1992

1. The Advocacy Act, 1992 is repealed.

PART II

HEALTH CARE CONSENT ACT, 1995

2. (1) The Health Care Consent Act, 1995, as set out in Schedule A to this Act, is hereby enacted and comes into force on the day this section comes into force.

(2) The Consent to Treatment Act, 1992, as amended by the Statutes of Ontario, 1994, chapter 27, section 43, is repealed.

PART III

SUBSTITUTE DECISIONS ACT, 1992

3. (1) The definition of "advocate" in subsection 1 (1) of the Substitute Decisions Act, 1992 is repealed.

(2) The definition of "prescribed" in subsection 1 (1) of the Act is repealed and the following substituted:

"prescribed" means prescribed by the regulations. ("prescrit")

(3) Subsection 1 (1) of the Act is amended by adding the following definition:

"psychiatric facility" has the same meaning as in the Mental Health Act. ("établissement psychiatrique")

(4) Subsection 1 (1) of the Act is amended by adding the following definition:

"regulations" means the regulations made under this Act. ("règlements")

(5) Section 1 of the Act is amended by adding the following subsection:

Relatives

(2.1) Two persons are relatives for the purpose of this Act if they are related by blood, marriage or adoption.

(6) Subsection 1 (3) of the Act is amended by striking out "An advocate or other person" in the first line and substituting "A person".

4. (1) Subsection 7 (1) of the Act is repealed and the following substituted:

Continuing power of attorney for property

(1) A power of attorney for property is a continuing power of attorney if,

(a) it states that it is a continuing power of attorney; or

(b) it expresses the intention that the authority given may be exercised during the grantor's incapacity to manage property.

(2) Subsection 7 (3) of the Act is repealed and the following substituted:

P.G.T. may be attorney

(3) The continuing power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is executed.

(3) Subsection 7 (5) of the Act is amended by inserting "of managing property" after "incapable" in the third line.

(4) Section 7 of the Act is amended by adding the following subsection:

Form

(7.1) The continuing power of attorney need not be in any particular form.

(5) Subsection 7 (1) of the Act, as re-enacted by subsection (1) of this section, applies to powers of attorney given before or after this section comes into force.

5. Subsection 9 (3) of the Act is repealed and the following substituted:

Determining incapacity

(3) If the continuing power of attorney provides that it comes into effect when the grantor becomes incapable of managing property but does not provide a method for determining whether that situation has arisen, the power of attorney comes into effect when,

(a) the attorney is notified in the prescribed form by an assessor that the assessor has performed an assessmentof the grantor's capacity and has found that the grantor is incapable of managing property; or

(b) the attorney is notified that a certificate of incapacity has been issued in respect of the grantor under the Mental Health Act.

6. (1) Subsection 10 (1) of the Act is repealed and the following substituted:

Execution

(1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness.

(2) Paragraph 3 of subsection 10 (2) of the Act is repealed.

(3) Subsection 10 (3) of the Act is repealed.

(4) Subsection 10 (4) of the Act is amended by striking out "subsections (1) to (3)" in the second line and substituting "subsections (1) and (2)".

7. (1) Clause 11 (d) of the Act is repealed and the following substituted:

(d) the grantor's spouse or partner and the relatives of the grantor who are known to the attorney, if,

(i) the attorney is of the opinion that the grantor is incapable of managing property, and

(ii) the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

(2) Section 11 of the Act is amended by adding the following subsection:

Notice to other persons

(2) An attorney who resigns shall make reasonable efforts to give notice of the resignation to persons with whom the attorney previously dealt on behalf of the grantor and with whom further dealings are likely to be required on behalf of the grantor.

8. (1) Clause 12 (1) (a) of the Act is amended by inserting "of managing property" after "incapable" in the first and second lines.

(2) Clause 12 (1) (b) of the Act is repealed.

9. Section 15 of the Act is amended by striking out "as defined in that Act" in the third and fourth lines.

10. Section 16 of the Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 62, is repealed and the following substituted:

Assessment of capacity for statutory guardianship

16. (1) A person may request an assessor to perform an assessment of another person's capacity or of the person's own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section.

Form of request

(2) A request under subsection (1) shall be in the prescribed form and, if the request is made in respect of another person, shall state that,

(a) the person requesting the assessment has reason to believe that the other person may be incapable of managing property;

(b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the existence of any attorney under a continuing power of attorney that gives the attorney authority over all of the other person's property; and

(c) the person requesting the assessment has made reasonable inquiries and has no knowledge of any spouse, partner or relative of the other person who intends to make an application under section 22 for the appointment of a guardian of property for the other person.

Certificate of incapacity

(3) The assessor may issue a certificate of incapacity in the prescribed form if he or she finds that the person is incapable of managing property.

Copies

(4) The assessor shall ensure that copies of the certificate of incapacity are promptly given to the incapable person and to the Public Guardian and Trustee.

Statutory guardianship

(5) As soon as he or she receives the copy of the certificate, the Public Guardian and Trustee is the person's statutory guardian of property.

Information to be given

(6) After becoming a person's statutory guardian of property under subsection (5), the Public Guardian and Trustee shall ensure that the person is informed, in a manner that the Public Guardian and Trustee considers appropriate, that,

(a) the Public Guardian and Trustee has become the person's statutory guardian of property; and

(b) the person is entitled to apply to the Consent and Capacity Board for a review of the assessor's finding that the person is incapable of managing property.

Termination by attorney

16.1 A statutory guardianship of property is terminated if,

(a) the incapable person gave a continuing power of attorney before the certificate of incapacity was issued;

(b) the power of attorney gives the attorney authority over all of the incapable person's property;

(c) the Public Guardian and Trustee receives a copy of the power of attorney and a written undertaking signed by the attorney to act in accordance with the power of attorney; and

(d) if someone has replaced the Public Guardian and Trustee as the statutory guardian under section 17, the statutory guardian receives a copy of the power of attorney and a written undertaking signed by the attorney to act in accordance with the power of attorney.

11. Section 17 of the Act is repealed and the following substituted:

Application to replace P.G.T.

17. (1) Any of the following persons may apply to the Public Guardian and Trustee to replace the Public Guardian and Trustee as an incapable person's statutory guardian of property:

1. The incapable person's spouse or partner.

2. A relative of the incapable person.

3. The incapable person's attorney under a continuing power of attorney, if the power of attorney was made before the certificate of incapacity was issued and does not give the attorney authority over all of the incapable person's property.

4. A trust corporation within the meaning of the Loan and Trust Corporations Act, if the incapable person's spouse or partner consents in writing to the application.

Form of application

(2) The application shall be in the prescribed form.

Management plan

(3) The application shall be accompanied by a management plan for the property in the prescribed form.

Appointment

(4) Subject to subsection (6), the Public Guardian and Trustee shall appoint the applicant as the incapable person's statutory guardian of property if the Public Guardian and Trustee is satisfied that the applicant is suitable to manage the property and that the management plan is appropriate.

Considerations

(5) The Public Guardian and Trustee shall consider the incapable person's current wishes, if they can be ascertained, and the closeness of the applicant's relationship to the person.

Security

(6) The Public Guardian and Trustee may refuse to appoint the applicant unless the applicant provides security, in a manner approved by the Public Guardian and Trustee, for an amount fixed by the Public Guardian and Trustee.

Same

(7) If security is required under subsection (6), the court may, on application, order that security be dispensed with, that security be provided in a manner not approved by the Public Guardian and Trustee, or that the amount of security be reduced, and may make its order subject to conditions.

Certificate

(8) The Public Guardian and Trustee shall give the person appointed as statutory guardian of property a certificate certifying the appointment.

Effect of certificate

(9) The certificate is proof of the guardian's authority.

Conditions

(10) The Public Guardian and Trustee may make an appointment under this section subject to conditions specified in the certificate.

Two or more guardians

(11) The Public Guardian and Trustee may certify that two or more applicants are joint statutory guardians of property, or that each of them is guardian for a specified part of the property.

Duty of guardian

(12) A person who replaces the Public Guardian and Trustee as statutory guardian of property shall, subject to any conditions imposed by the Public Guardian and Trustee or the court, manage the property in accordance with the management plan.

12. (1) Subsection 18 (1) of the Act is amended by striking out "subsection 17 (10)" in the third and fourth lines and substituting "section 17".

(2) The French version of subsection 18 (1) of the Act is amended by striking out "au requérant" in the last line and substituting "à l'auteur de la demande".

(3) The French version of subsection 18 (2) of the Act is amended by striking out "le requérant" in the first line and substituting "l'auteur de la demande".

(4) The French version of subsection 18 (3) of the Act is amended by striking out "le requérant" in the second line and substituting "l'auteur de la demande".

(5) Subsection 18 (4) of the Act is repealed and the following substituted:

Criteria

(4) The court shall take into consideration the incapable person's current wishes, if they can be ascertained, and the closeness of the applicant's relationship to the person.

13. Sections 19 and 20 of the Act are repealed and the following substituted:

Death, etc., of statutory guardian

19. (1) If a statutory guardian of property dies, becomes incapable of managing property or gives notice to the Public Guardian and Trustee of his or her resignation, the Public Guardian and Trustee may elect to become the incapable person's statutory guardian until another person is appointed as guardian of property under section 17 or 22.

Delivery of accounts, etc.

(2) If a statutory guardian of property gives notice to the Public Guardian and Trustee of his or her resignation, the Public Guardian and Trustee may require the guardian to provide the Public Guardian and Trustee with his or her accounts in respectof the guardianship, any property in his or her possession or control that is subject to the guardianship and any information requested by the Public Guardian and Trustee in respect of the guardianship.

Same

(3) Subsection (2) applies with necessary modifications to the personal representative of a statutory guardian of property who dies.

Termination of statutory guardianship

20. A statutory guardianship of property for a person is terminated if any of the following events occurs:

1. A guardian is appointed for the person by the court under section 22.

2. Notice of the guardian's resignation is given by the guardian to,

i. the person, and

ii. the Public Guardian and Trustee, if the Public Guardian and Trustee is not the guardian.

3. In the case of a statutory guardianship created under section 15,

i. notice is given to the guardian that the certificate of incapacity has been cancelled under section 56 of the Mental Health Act,

ii. notice is given to the guardian that the person has been discharged, unless the guardian has also received a notice of continuance issued under subsection 57 (2) of the Mental Health Act,

iii. notice is given to the guardian from an assessor or from a physician who has authority to issue certificates of incapacity under the Mental Health Act stating that the assessor or physician has performed an assessment of the person's capacity and is of the opinion that the person is capable of managing property, if the person has been discharged and a notice of continuance was issued under subsection 57 (2) of the Mental Health Act,

iv. the time for appeal from a decision of the Consent and Capacity Board on an application under section 20.2 of this Act or section 60 of the Mental Health Act has expired, if the Boarddetermines that the person is capable of managing property and no appeal is taken, or

v. an appeal from a decision of the Consent and Capacity Board on an application under section 20.2 of this Act or section 60 of the Mental Health Act is finally disposed of, if an appeal is taken and it is finally determined that the person is capable of managing property.

4. In the case of a statutory guardianship created under section 16,

i. notice is given to the guardian from an assessor stating that the assessor has performed an assessment of the person's capacity and is of the opinion that the person is capable of managing property,

ii. the time for appeal from a decision of the Consent and Capacity Board on an application under section 20.2 has expired, if the Board determines that the person is capable of managing property and no appeal is taken, or

iii. an appeal from a decision of the Consent and Capacity Board on an application under section 20.2 is finally disposed of, if an appeal is taken and it is finally determined that the person is capable of managing property.

Assessment

20.1 (1) A statutory guardian of property shall, on behalf of the incapable person, assist in arranging an assessment of the person's capacity by an assessor if the assessment is requested by the incapable person and,

(a) in the case of a statutory guardianship created under section 15, the person has been discharged from the psychiatric facility, a notice of continuance was issued under subsection 57 (2) of the Mental Health Act, and six months have elapsed since the notice of continuance was issued; or

(b) in the case of a statutory guardianship created under section 16, six months have elapsed since the guardianship was created.

Limit

(2) Subsection (1) does not require a statutory guardian of property to assist in arranging an assessment if an assessment has been performed in the six months before the request.

Application for review of finding of incapacity

20.2 (1) A person who has a statutory guardian of property may apply to the Consent and Capacity Board for a review of a finding that the person is incapable of managing property,

(a) in the case of a statutory guardianship created under section 15, if the finding was made by an assessor, or by a physician who has authority to issue certificates of incapacity under the Mental Health Act, following an assessment of capacity that was performed after a notice of continuance was issued in respect of the person under subsection 57 (2) of the Mental Health Act; or

(b) in the case of a statutory guardianship created under section 16, if the finding,

(i) resulted in the issuance of the certificate of incapacity under subsection 16 (3), or

(ii) was made by an assessor following an assessment of capacity that was performed after the creation of the statutory guardianship.

Limit

(2) A person may not make an application under this section if he or she made an application under this section in the previous six months.

Time for application

(3) An application under this section must be made within six months after the finding of incapacity was made.

Parties

(4) The parties to the application are:

1. The applicant.

2. The assessor or physician who made the finding of incapacity.

3. Any other person whom the Board specifies.

Power of Board

(5) The Board may confirm the finding of incapacity or may determine that the person is capable of managing property, and in doing so may substitute its opinion for that of the assessor or physician.

Procedure

(6) Sections 71 to 78 of the Health Care Consent Act, 1995 apply with necessary modifications to an application under this section.

Termination by court

20.3 (1) The court may, on application by a person who is subject to a statutory guardianship of property, terminate the statutory guardianship.

Suspension

(2) In an application under this section, the court may suspend the powers of the statutory guardian.

Procedure

(3) Subsections 69 (0.1), (8) and (9) apply to an application under this section and, except for the purpose of subsection 69 (9), subsection 69 (6) does not apply.

14. (1) The French version of subsection 24 (1) of the Act is amended by striking out "médicaux" in the second line and substituting "de santé".

(2) Subsection 24 (1) of the Act is amended by inserting "under section 22" after "appointed" in the fourth line.

(3) Section 24 of the Act is amended by adding the following subsections:

Same

(2.1) Subsection (1) does not apply to a person if the court is satisfied that there is no other suitable person who is available and willing to be appointed.

P.G.T.

(2.2) The court shall not appoint the Public Guardian and Trustee as a guardian under section 22 unless the application proposes the Public Guardian and Trustee as guardian and there is no other suitable person who is available and willing to be appointed.

(4) Subsection 24 (3) of the Act is amended by striking out "form" in the fourth line and substituting "manner".

(5) Clause 24 (5) (c) of the Act is repealed and the following substituted:

15. Section 26 of the Act is repealed and the following substituted:

Variation or substitution

26. (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed.

Who may make motion

(2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under section 69 to be served with notice of that proceeding.

Motion to vary

(3) Subsection 69 (2), subsections 69 (5) to (9) and section 77 apply, with necessary modifications, to a motion to vary an order.

Motion to substitute

(4) Subsection 69 (1), subsections 69 (5) to (9), subsection 70 (1) and section 77 apply, with necessary modifications, to a motion to substitute another person as guardian.

16. (1) Subsection 27 (3) of the Act is repealed and the following substituted:

Extent of investigation

(3) In conducting an investigation under subsection (2), the Public Guardian and Trustee is not required to take any steps that, in his or her opinion, are unnecessary for the purpose of determining whether an application to the court is required under subsection (3.1).

Application for temporary guardianship

(3.1) If, as a result of the investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of managing property and that the prompt appointment of a temporary guardian of property is required to prevent serious adverse effects, the Public Guardian and Trustee shall apply to the court for an order appointing him or her as temporary guardian of property.

(2) Subsection 27 (5) of the Act is repealed.

(3) Subsections 27 (8) and (9) of the Act are repealed and the following substituted:

Power of attorney

(8) The order may suspend the powers of any attorney under a continuing power of attorney during the term of the temporary guardianship.

Service of order

(9) If the order was made without notice, it shall be served on the person as soon as possible.

Termination, variation

(9.1) On motion by the Public Guardian and Trustee or by the person whose property is under guardianship, the court may terminate the guardianship, reduce or extend its term, or otherwise vary the order.

(4) Subsection 27 (10) of the Act is repealed and the following substituted:

Duty if no application made

(10) If the Public Guardian and Trustee conducts an investigation under this section and decides not to make an application under subsection (3.1), the Public Guardian and Trustee shall, within three years,

(a) destroy all information collected during the investigation and during any previous investigations in respect of the person under this section; and

(b) notify the person who was alleged to be incapable that,

(i) an allegation was made that the person was incapable of managing property and that serious adverse effects were occurring or might occur as a result,

(ii) the Public Guardian and Trustee investigated the allegation as required by this Act and decided not to make an application for temporary guardianship, and

(iii) the Public Guardian and Trustee has destroyed all information collected during the investigation.

Exception

(11) Subsection (10) does not apply if, within three years after the decision is made not to make an application under subsection (3.1),

(a) another investigation is commenced in respect of the person under this section or section 62; or

(b) the Public Guardian and Trustee becomes the person's guardian of property or guardian of the person.

(5) Subsection 27 (10) of the Act, as re-enacted by subsection (4) of this section, and subsection 27 (11) of the Act, as enacted by subsection (4) of this section, apply in respect ofinvestigations commenced under section 27 of the Act before or after this section comes into force.

17. Sections 28 and 29 of the Act are repealed and the following substituted:

Termination

28. (1) The court may terminate a guardianship created under section 22, on motion in the proceeding in which the guardian was appointed.

Who may make motion

Suspension

29. In a motion to terminate a guardianship or temporary guardianship, the court may suspend the powers of the guardian or temporary guardian.

18. Section 30 of the Act is amended by striking out "applications" in the first and second lines and substituting "motions".

19. Subsection 31 (2) of the Act is repealed.

20. Subsection 32 (6) of the Act is repealed and the following substituted:

Accounts

(6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.

21. The Act is amended by adding the following sections:

Will

33.1 A guardian of property shall make reasonable efforts to determine,

(a) whether the incapable person has a will; and

(b) if the incapable person has a will, what the provisions of the will are.

Property in another person's control

33.2 (1) A person who has custody or control of property belonging to an incapable person shall,

(a) provide the incapable person's guardian of property with any information requested by the guardian thatconcerns the property and that is known to the person who has custody or control of the property; and

(b) deliver the property to the incapable person's guardian of property when required by the guardian.

Property includes will

(2) For the purposes of subsection (1), the property belonging to a person includes the person's will.

22. The Act is amended by adding the following section:

Disposition of property given by will

35.1 (1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person's will.

Application

(2) Subsection (1) does not apply in respect of a specific testamentary gift of money.

Permitted dispositions

(3) Despite subsection (1),

(a) the guardian may dispose of the property if the disposition of that property is necessary to comply with the guardian's duties; or

(b) the guardian may make a gift of the property to the person who would be entitled to it under the will, if the gift is authorized by section 37.

23. Section 36 of the Act is repealed and the following substituted:

Proceeds of disposition

36. (1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest.

If residue insufficient

(2) If the residue of the incapable person's estate is not sufficient to pay all entitlements under subsection (1) in full, the persons entitled under subsection (1) shall share the residue in amounts proportional to the amounts to which they would otherwise have been entitled.

Will prevails

(3) Subsections (1) and (2) are subject to a contrary intention in the incapable person's will.

24. Subsection 37 (5) of the Act is repealed and the following substituted:

Increase, charitable gifts

(5) The court may authorize the guardian to make a charitable gift that does not comply with paragraph 6 of subsection (4),

(a) on motion by the guardian in the proceeding in which the guardian was appointed, if the guardian was appointed under section 22 or 27; or

(b) on application, if the guardian is the statutory guardian of property.

25. (1) Section 38 of the Act is amended by striking out "sections 33 to 37" in the second line and substituting " sections 33, 33.1, 33.2, 34, 35.1, 36 and 37".

(2) Section 38 of the Act is amended by adding the following subsection:

Authority under subs. 37 (5)

(2) An attorney under a continuing power of attorney shall make an application to the court to obtain the authority referred to in subsection 37 (5).

26. Section 39 of the Act is repealed and the following substituted:

Directions from court

39. (1) If an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give directions on any question arising in the management of the property.

Form of request

(2) A request for directions shall be made,

(a) on application, if no guardian of property has been appointed under section 22 or 27; or

(b) on motion in the proceeding in which the guardian was appointed, if a guardian of property has been appointed under section 22 or 27.

Applicant; moving party

(3) An application or motion under this section may be made by the incapable person's guardian of property, attorney under acontinuing power of attorney, dependant, guardian of the person or attorney under a power of attorney for personal care, by the Public Guardian and Trustee, or by any other person with leave of the court.

Order

(4) The court may by order give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with this Act.

Variation of order

(5) The court may, on motion by a person referred to in subsection (3), vary the order.

27. Subsection 40 (3) of the Act is repealed and the following substituted:

Same

(3) The guardian or attorney may take an amount of compensation greater than the prescribed fee scale allows,

(a) in the case where the Public Guardian and Trustee is not the guardian or attorney, if consent in writing is given by the Public Guardian and Trustee and by the incapable person's guardian of the person or attorney under a power of attorney for personal care, if any; or

(b) in the case where the Public Guardian and Trustee is the guardian or attorney, if the court approves.

28. Section 41 of the Act is repealed.

29. The French version of section 45 of the Act is amended by striking out "médicaux" in the fifth line and substituting "de santé".

30. (1) Subsection 46 (2) of the Act is repealed and the following substituted:

P.G.T. may be attorney

(2) The power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is executed.

(2) The French version of clause 46 (3) (a) of the Act is amended by striking out "médicaux" in the first line and substituting "de santé".

(3) Clause 46 (3) (b) of the Act is amended by striking out "training, advocacy or support" in the first and second lines and substituting "training or support".

(4) Subsection 46 (5) of the Act is amended by inserting "of personal care" after "incapable" in the third line.

(5) Subsection 46 (8) of the Act is repealed and the following substituted:

Form

(8) The power of attorney need not be in any particular form.

(6) Subsections 46 (10), (11) and (12) of the Act are repealed.

31. (1) Subsection 48 (1) of the Act is repealed and the following substituted:

Execution

(1) A power of attorney for personal care shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness.

(2) Subsection 48 (3) of the Act is repealed.

(3) Subsection 48 (4) of the Act is amended by striking out "subsections (1) to (3)" in the second and third lines and substituting "subsections (1) and (2)".

32. (1) Sections 49, 50 and 51 of the Act are repealed and the following substituted:

When power of attorney effective

49. (1) A provision in a power of attorney for personal care that confers authority to make a decision concerning the grantor's personal care is effective to authorize the attorney to make the decision if,

(a) the Health Care Consent Act, 1995 applies to the decision and that Act authorizes the attorney to make the decision; or

(b) the Health Care Consent Act, 1995 does not apply to the decision and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed.

Method for confirmation

(2) A power of attorney that contains a condition described in clause (1) (b) may specify the method for confirming whether the grantor is incapable of personal care and, if no method is specified, that fact may be confirmed by notice to the attorneyin the prescribed form from an assessor stating that the assessor has performed an assessment of the grantor's capacity and has found that the grantor is incapable of personal care.

Instructions to assessor

(3) A power of attorney that contains a condition described in clause (1) (b) may require an assessor who performs an assessment of the grantor's capacity to consider factors described in the power of attorney.

Application

(4) This section applies to powers of attorney given before or after the coming into force of section 32 of the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995.

Special provisions

50. (1) A power of attorney for personal care may contain the provisions described in subsection (2), but none of the provisions is effective unless all of the following circumstances exist:

1. The power of attorney contains all the provisions described in subsection (2) and they are all in the prescribed form.

2. At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provisions described in subsection (2).

3. Within 30 days after the power of attorney was executed, an assessor made a statement in the prescribed form,

i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor's capacity,

ii. stating the assessor's opinion that, at the time of the assessment, the grantor was capable of personal care, and

iii. setting out the facts on which the opinion is based.

List of provisions

(2) The provisions referred to in subsection (1) are:

1. A provision that authorizes the attorney and other persons under the direction of the attorney to useforce that is necessary and reasonable in the circumstances,

i. to determine whether the grantor is incapable of making a decision to which the Health Care Consent Act, 1995 applies,

ii. to confirm, in accordance with subsection 49 (2), whether the grantor is incapable of personal care, if the power of attorney contains a condition described in clause 49 (1) (b), or

iii. to obtain an assessment of the grantor's capacity by an assessor in any other circumstances described in the power of attorney.

2. A provision that waives the grantor's right to revoke the power of attorney except in accordance with subsection (3).

3. A provision that authorizes the attorney and other persons under the direction of the attorney to use force that is necessary and reasonable in the circumstances to take the grantor to any place for care or treatment, except a place specified in the power of attorney, to admit the grantor to that place and to detain and restrain the grantor in that place during the care or treatment.

4. A provision that waives the grantor's right to apply to the Consent and Capacity Board under sections 30, 48 and 63 of the Health Care Consent Act, 1995 for a review of a finding of incapacity that applies to a decision to which that Act applies.

Revocation

(3) If a provision described in paragraph 2 of subsection (2) is contained in a power of attorney for personal care and all of the circumstances described in subsection (1) exist, the power of attorney may be revoked only if, within 30 days before the revocation is executed, an assessor performed an assessment of the grantor's capacity and made a statement in the prescribed form,

(a) indicating that, on a date specified in the statement, the assessor performed an assessment of the grantor's capacity;

(b) stating the assessor's opinion that, at the time of the assessment, the grantor was capable of personal care; and

Use of force

(4) No action lies against an attorney, a police services board, a police officer or any other person arising from the use of force that is authorized by a provision described in subsection (2) that is effective under subsection (1).

Assessment

51. (1) The attorney under a power of attorney for personal care shall, on the request of and on behalf of the grantor, assist in arranging an assessment of the grantor's capacity by an assessor.

Limit

(2) Subsection (1) does not require an attorney to assist in arranging an assessment if an assessment has been performed in the six months before the request.

Transition

(2) If a power of attorney for personal care was accepted for registration under section 50 of the Act before this section comes into force,

(a) the power of attorney shall be deemed to contain all the provisions described in subsection 50 (2) of the Act, as re-enacted by subsection (1); and

(b) all the circumstances described in subsection 50 (1) of the Act, as re-enacted by subsection (1), shall be deemed to exist.

33. (1) Clause 52 (d) of the Act is repealed and the following substituted:

(d) the grantor's spouse or partner and the relatives of the grantor who are known to the attorney, if the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

(2) Section 52 of the Act is amended by adding the following subsection:

Notice to other persons

34. (1) Clause 53 (1) (a) of the Act is amended by inserting "of personal care" after "incapable" in the first and second lines.

(2) Clause 53 (1) (c) of the Act is amended by striking out "unless the previous power of attorney has been validated" in the last two lines.

(3) Subsection 53 (3) of the Act is repealed.

35. Section 54 of the Act is repealed.

36. (1) The French version of subsection 57 (1) of the Act is amended by striking out "médicaux" in the second line and substituting "de santé".

(2) Subsection 57 (1) of the Act is amended by inserting "under section 55 as" after "appointed" in the fourth line.

(3) Section 57 of the Act is amended by adding the following subsections:

Exception

(2.1) Subsection (1) does not apply to a person if the court is satisfied that there is no other suitable person who is available and willing to be appointed.

P.G.T.

(2.2) The court shall not appoint the Public Guardian and Trustee as a guardian under section 55 unless the application proposes the Public Guardian and Trustee as guardian and there is no other suitable person who is available and willing to be appointed.

(4) The French version of clause 57 (3) (c) of the Act is amended by striking out "l'étroitesse" in the first line and substituting "le caractère étroit".

37. (1) Clauses 59 (2) (d) and (e) of the Act are repealed and the following substituted:

(d) have access to personal information, including health information and records, to which the person could have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person's property or to the guardian's status or powers;

(e) on behalf of the person, make any decision to which the Health Care Consent Act, 1995 applies;

(e.1) make decisions about the person's health care, nutrition and hygiene.

(2) Clause 59 (4) (a) of the Act is repealed.

(3) Subsection 59 (5) of the Act is amended by striking out "clause (4) (a) or (b)" in the second and third lines and substituting "subsection (4)".

38. Subsection 60 (3) of the Act is repealed and the following substituted:

Powers of guardian

(3) Under an order for partial guardianship, the guardian may exercise those of the powers set out in subsections 59 (2), (3), (4) and (5) that are specified in the order.

39. Section 61 of the Act is repealed and the following substituted:

Variation or substitution

61. (1) The court may vary an order appointing a guardian of the person under section 55 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed.

Who may make motion

Motion to vary

(3) Subsections 69 (4) to (9) and section 77 apply, with necessary modifications, to a motion to vary an order.

Motion to substitute

(4) Subsection 69 (3), subsections 69 (5) to (9), subsection 70 (2) and section 77 apply, with necessary modifications, to a motion to substitute another person as guardian.

40. (1) Subsection 62 (3) of the Act is repealed and the following substituted:

Extent of investigation

Application for temporary guardianship

(3.1) If, as a result of the investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of personal care and that the prompt appointment of a temporary guardian of the person is required to prevent serious adverse effects, the Public Guardian and Trusteeshall apply to the court for an order appointing him or her as the incapable person's temporary guardian of the person.

(2) The English version of subsection 62 (4) of the Act is amended by striking out "his" in the third line and substituting "his or her".

(3) Subsection 62 (5) of the Act is repealed.

(4) Subsection 62 (7) of the Act is repealed and the following substituted:

Duration of appointment

(7) The appointment is valid for a period fixed by the court that does not exceed 90 days.

(5) Subsection 62 (9) of the Act is repealed and the following substituted:

Power of attorney

(9) The order may suspend the powers of any attorney under a power of attorney for personal care during the term of the temporary guardianship.

Service of order

(9.1) If the order was made without notice, it shall be served on the person as soon as possible.

(6) Subsections 62 (11) and (12) of the Act are repealed and the following substituted:

Termination, variation

(11) On motion by the Public Guardian and Trustee or by the person under guardianship, the court may terminate the guardianship, reduce or extend its term, or otherwise vary the order.

Duty if no application made

(12) If the Public Guardian and Trustee conducts an investigation under this section and decides not to make an application under subsection (3.1), the Public Guardian and Trustee shall, within three years,

(a) destroy all information collected during the investigation and during any previous investigations in respect of the person under this section; and

(b) notify the person who was alleged to be incapable that,

(i) an allegation was made that the person was incapable of personal care and that seriousadverse effects were occurring or might occur as a result,

(ii) the Public Guardian and Trustee investigated the allegation as required by this Act and decided not to make an application for temporary guardianship, and

(iii) the Public Guardian and Trustee has destroyed all information collected during the investigation.

Exception

(13) Subsection (12) does not apply if, within three years after the decision is made not to make an application under subsection (3.1),

(a) another investigation is commenced in respect of the person under this section or section 27; or

(b) the Public Guardian and Trustee becomes the person's guardian of property or guardian of the person.

(7) Subsection 62 (12) of the Act, as re-enacted by subsection (6) of this section, and subsection 62 (13) of the Act, as enacted by subsection (6) of this section, apply in respect of investigations commenced under section 62 of the Act before or after this section comes into force.

41. Sections 63 and 64 of the Act are repealed and the following substituted:

Termination

63. (1) The court may terminate a guardianship created under section 55, on motion in the proceeding in which the guardian was appointed.

Who may make motion

Suspension

64. In a motion to terminate a guardianship or temporary guardianship, the court may suspend the powers of the guardian or temporary guardian.

42. Section 65 of the Act is amended by striking out "applications" in the first and second lines and substituting "motions".

43. (1) Section 66 of the Act is amended by adding the following subsection:

Decisions under Health Care Consent Act, 1995

(2.1) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1995 applies in accordance with that Act.

(2) Subsection 66 (3) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Other decisions

(3) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1995 does not apply in accordance with the following principles:

. . . . .

(3) Subsection 66 (4) of the Act is repealed and the following substituted:

Best interests

(4) In deciding what the person's best interests are for the purpose of subsection (3), the guardian shall take into consideration,

(a) the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;

(b) the person's current wishes, if they can be ascertained; and

1. Whether the guardian's decision is likely to,

i. improve the quality of the person's life,

ii. prevent the quality of the person's life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the person's life is likely to deteriorate.

2. Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.

Records of decisions

(4.1) The guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person's behalf.

(4) Subsection 66 (10) of the Act is amended by striking out "and" at the end of clause (a) and by striking out clause (b).

(5) Subsection 66 (12) of the Act is repealed and the following substituted:

Electric shock as aversive conditioning

(12) The guardian shall not use electric shock as aversive conditioning and shall not give consent on the person's behalf to the use of electric shock as aversive conditioning unless the consent is given to a treatment in accordance with the Health Care Consent Act, 1995.

(6) Subsections 66 (17) and (18) of the Act are repealed.

44. Sections 67 and 68 of the Act are repealed and the following substituted:

Duties of attorney

67. Section 66, except subsections 66 (15) and (16), applies with necessary modifications to an attorney who acts under a power of attorney for personal care.

Directions from court

68. (1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.

Form of request

(2) A request for directions shall be made,

(a) on application, if no guardian of the person has been appointed under section 55 or 62; or

(b) on motion in the proceeding in which the guardian was appointed, if a guardian of the person has been appointed under section 55 or 62.

Applicant; moving party

(3) An application or motion under this section may be made by the incapable person's guardian of the person, attorney under a power of attorney for personal care, dependant, guardian of property or attorney under a continuing power of attorney, by the Public Guardian and Trustee, or by any other person with leave of the court.

Order

(4) The court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.

Variation of order

(5) The court may, on motion by a person referred to in subsection (3), vary the order.

45. (1) Section 69 of the Act is amended by adding the following subsection:

Service of notice, application to terminate statutory guardianship of property

(0.1) Notice of an application to terminate a statutory guardianship of property shall be served on the following persons:

1. The statutory guardian of property.

2. The applicant's guardian of the person, if known.

3. The applicant's attorney for personal care, if known.

4. The Public Guardian and Trustee, if he or she is not the statutory guardian.

(2) Subsection 69 (2) of the Act is amended by striking out "an application" in the first line and substituting "a motion".

(3) Subsection 69 (4) of the Act is amended by striking out "an application" in the first line and substituting "a motion".

(4) Subsection 69 (5) of the Act is amended by adding at the end "or moving party".

(5) Paragraph 2 of subsection 69 (6) of the Act is repealed and the following substituted:

2. The person's children who are at least 18 years old, in the case of an application or motion under Part I, or at least 16 years old, in the case of an application or motion under Part II.

(6) Subsections 69 (8), (9), (10) and (11) of the Act are repealed and the following substituted:

Parties

(8) The parties to the application or motion are the applicant or moving party and the persons served under subsection (0.1), (1), (2), (3) or (4), as the case may be.

Adding parties

(9) Any of the following persons is entitled to be added as a party at any stage in the application or motion:

1. A person referred to in paragraph 2 or 3 of subsection (0.1), paragraph 2, 3 or 4 of subsection (1), paragraph 2 or 3 of subsection (2), paragraph 2, 3 or 4 of subsection (3) or paragraph 2 or 3 of subsection (4), as the case may be, who was not served with the notice of application or notice of motion.

2. A person referred to in subsection (6), whether or not served with the notice of application or notice of motion.

46. (1) Clause 70 (1) (c) of the Act is repealed and the following substituted:

(i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed, or

(ii) if it was not possible to give the person alleged to be incapable the information referred to in subclause (i), describing why it was not possible.

(2) Clause 70 (2) (c) of the Act is repealed and the following substituted:

(ii) if it was not possible to give the person alleged to be incapable the information referred to in subclause (i), describing why it was not possible.

47. Subsection 71 (2) of the Act is amended by,

(a) striking out "An application" in the first line and substituting "A motion"; and

(b) striking out "notice of application was issued" in the last two lines and substituting "notice of motion was filed with the court".

48. Subsection 72 (4) of the Act is repealed and the following substituted:

Assessment

(4) A statement made by an assessor may be used for the purpose of subsection (1) only if,

(a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(b) the assessment was performed during the six months before the notice of application was issued.

49. (1) Subsection 73 (1) of the Act is amended by,

(a) striking out "the applicant wishes an application" in the first two lines and substituting "the moving party wishes a motion"; and

(b) striking out "notice of application was issued" in the last two lines and substituting "notice of motion was filed with the court".

(2) Subsection 73 (3) of the Act is repealed and the following substituted:

Assessment

(3) A statement made by an assessor may be used for the purpose of subsection (1) only if,

(a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(b) the assessment was performed during the six months before the notice of motion was filed with the court.

50. (1) Clause 74 (4) (a) of the Act is repealed.

(2) Section 74 of the Act is amended by adding the following subsection:

Assessment

(5) A statement may be used for the purpose of subsection (1) only if,

(a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(b) the assessment was performed during the six months before the notice of application was issued.

51. (1) Subsection 75 (1) of the Act is amended by striking out "the applicant wishes an application" in the first two lines and substituting "the moving party wishes a motion", and by striking out "application" in the fourth line and substituting "motion".

(2) Subsection 75 (3) of the Act is repealed and the following substituted:

Assessment

(3) A statement may be used for the purpose of subsection (1) only if,

(a) the statement indicates that the assessor performed an assessment of the person's capacity and specifies the date on which the assessment was performed; and

(b) the assessment was performed during the six months before the notice of motion was filed with the court.

52. Section 76 of the Act is repealed.

53. Section 77 of the Act is repealed and the following substituted:

Summary disposition

77. (1) In an application to appoint a guardian of property or guardian of the person or a motion to terminate a guardianship of property or guardianship of the person, the court may, in the circumstances described in subsection (2), make an order without anyone appearing before it and without holding a hearing.

Same

(2) The registrar of the court shall submit the notice of application or notice of motion, and the accompanying documents, to a judge of the court if,

(a) in the case of an application, the applicant certifies in writing that,

(i) no person has delivered a notice of appearance,

(ii) the documents required by this Part accompany the application,

(iii) in the case of an application to appoint a guardian of property, at least one of the statements referred to in section 72 indicates that its maker is of the opinion that it is necessary for decisions to be made on the person's behalf by a person who is authorized to do so, and

(iv) in the case of an application to appoint a guardian of the person, at least one of the statements referred to in section 74 indicates that its maker is of the opinion that the person needs decisions to be made on his or her behalf by a person who is authorized to do so;

(b) in the case of a motion, the moving party certifies in writing that,

(i) the documents required by this Part accompany the motion, and

(ii) every person entitled to be served with the notice of motion has filed with the court a statement indicating that they do not intend to appear at the hearing of the motion.

Order

(3) On considering the application or motion, the judge may,

(a) grant the relief sought;

(b) require the parties or their counsel to adduce additional evidence or make representations; or

(c) order that the application or motion proceed to a hearing or order the trial of an issue, and give such directions as the judge considers just.

54. Section 78 of the Act is repealed and the following substituted:

Right to refuse assessment

78. (1) An assessor shall not perform an assessment of a person's capacity if the person refuses to be assessed.

Information to be provided

(2) Before performing an assessment of capacity, the assessor shall explain to the person to be assessed,

(a) the purpose of the assessment;

(b) the significance and effect of a finding of capacity or incapacity; and

Application

(3) Subsections (1) and (2) do not apply to an assessment if,

(a) the assessment was ordered by the court under section 79; or

(b) a power of attorney for personal care contains a provision that authorizes the use of force to permit the assessment and the provision is effective under subsection 50 (1).

Notice of findings

(4) An assessor who performs an assessment of a person's capacity shall give the person written notice of the assessor's findings.

55. Subsection 80 (2) of the Act is repealed.

56. Subsection 81 (2) of the Act is repealed.

57. Subsection 83 (1) of the Act is amended by striking out "or" at the end of clause (g), by adding "or" at the end of clause (h), and by adding the following clause:

(i) any other person or class of persons designated by the regulations.

58. Sections 87 and 88 of the Act are repealed and the following substituted:

Volunteers

87. (1) The Public Guardian and Trustee may appoint volunteers to provide advice and assistance under this Act.

Protection from liability

(2) No proceeding for damages shall be instituted against a volunteer appointed under this section for any act done in good faith in the execution or intended execution of the volunteer's powers and duties or for any alleged neglect or default in the execution in good faith of the volunteer's powers or duties.

Same

(3) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (2) does not relieve the Crown of any liability to which the Crown would otherwise be subject.

Mediation

88. The Public Guardian and Trustee may mediate,

(a) a dispute that arises between a person's guardian of property or attorney under a continuing power of attorney and the person's guardian of the person or attorney for personal care, if the dispute arises in the performance of their duties;

(b) a dispute that arises between joint attorneys under a person's continuing power of attorney or power of attorney for personal care, if the dispute arises in the performance of their duties; or

(c) a dispute that arises between joint guardians of property or joint guardians of the person, if the dispute arises in the performance of their duties.

59. (1) Clause 89 (1) (c) of the Act is repealed.

(2) Subsection 89 (3) of the Act is amended by adding "or" at the end of clause (a), by striking out "or" at the end of clause (b) and by striking out clause (c).

60. (1) Clause 90 (c) of the Act is repealed and the following substituted:

(c) prescribing a fee scale for the compensation of guardians of property and attorneys under continuing powers of attorney, including annual percentage charges on revenue and on capital;

(c.1) prescribing circumstances in which a person's guardian of the person or attorney under a power of attorney for personal care may be compensated from the person's property for services performed as guardian or attorney, and prescribing the amount of the compensation or a method for determining the amount of the compensation;

(c.2) governing the keeping of accounts and other records by attorneys under continuing powers of attorney, attorneys under powers of attorney for personal care, guardians of property and guardians of the person, and requiring them to provide information from the records to persons specified by the regulations;

(c.3) establishing a public record of information relating to guardians of property, guardians of the person, attorneys under continuing powers of attorney or attorneys under powers of attorney for personal care, prescribing the contents of the record, governing themaintenance of the record, requiring persons to provide information for the purpose of the record and governing the disclosure of information from the record.

(2) Clause 90 (d) of the Act is amended by adding at the end "or specific types of assessments of capacity".

(3) Section 90 of the Act is amended by adding the following clauses:

(e.1) prescribing standards for the performance of assessments of capacity by assessors;

(e.2) regulating the fees that may be charged by assessors;

(e.3) for the purpose of sections 38 and 39 of the Freedom of Information and Protection of Privacy Act, authorizing an institution as defined in that Act to collect personal information, directly or indirectly, for a purpose relating to this Act;

(e.4) authorizing a member of a College as defined in the Regulated Health Professions Act, 1991 or a person who provides health care or residential, social, training or support services, subject to the Mental Health Act and the Long-Term Care Act, 1994 but despite any other Act or the regulations under any other Act, to disclose personal information about a person,

(i) to an assessor, if the information is relevant to an assessment of capacity being performed by the assessor,

(ii) to a person who has made or has stated in writing an intention to make an application to appoint a guardian of property or guardian of the person, if the information is relevant to the application, or

(iii) to the Public Guardian and Trustee, if the information is relevant to the making of an allegation described in subsection 27 (2) or 62 (2) or to an investigation being conducted under section 27 or 62;

(e.5) governing the use and disclosure of personal information obtained under the authority of a regulation made under clause (e.4);

(e.6) designating persons or classes of persons from whom the Public Guardian and Trustee may obtain access to records under clause 83 (1) (i).

PART IV

AMENDMENTS TO OTHER ACTS

Charitable Institutions Act

61. (1) Section 1 of the Charitable Institutions Act, as amended by the Statutes of Ontario, 1993, chapter 2, section 1, and 1994, chapter 26, section 70, is further amended by adding the following definitions:

"mentally incapable" means unable to understand the information that is relevant to making a decision concerning the subject-matter or unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision;

("mentalement incapable")

"substitute decision-maker", in relation to a resident of an approved charitable home for the aged, means the person who would be authorized under the Health Care Consent Act, 1995 to make a decision on behalf of the resident concerning his or her personal assistance plan, if the resident were incapable with respect to the personal assistance plan under that Act. ("mandataire spécial")

(2) Clause 9.15 (d) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, is repealed and the following substituted:

(d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,

(i) the resident,

(ii) if the resident is mentally incapable, his or her substitute decision-maker, and

(iii) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct; and

. . . . .

(3) Subsection 9.17 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, is amended by striking out "to each resident of the home, to the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct" in the third, fourth, fifth, sixth, seventh and eighth lines and substituting "to the persons mentioned in subsection (1.1)".

(4) Clause 9.17 (1) (c) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, is repealed and the following substituted:

(c) stating that the persons mentioned in subsection (1.1) may request access to and an explanation of the resident's plan of care, and specifying the person to whom the request must be made.

(5) Section 9.17 of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, is amended by adding the following subsection:

Same

(1.1) The notice must be given to,

(a) each resident of the approved charitable home for the aged;

(b) if the resident is mentally incapable, his or her substitute decision-maker; and

(c) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct.

(6) Paragraph 2 of subsection 9.19 (2) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, is repealed and the following substituted:

2. If a resident of the home is mentally incapable, his or her substitute decision-maker.

(7) Paragraphs 2 and 3 of subsection 9.19 (3) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, are repealed and the following substituted:

2. If a resident of the home is mentally incapable, his or her substitute decision-maker.

3. A person selected by the resident or, if the resident is mentally incapable, by his or her substitute decision-maker.

(8) Subsection 9.20 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 6, is repealed and the following substituted:

Meeting

(1) Unless an approved charitable home for the aged has a residents' council, the approved corporation maintaining and operating the home shall, at least once in each year, convene ameeting of the following persons to advise them of their right to establish a residents' council:

1. The residents of the home.

2. In the case of residents who are mentally incapable, their substitute decision-makers.

(9) Subsection 12 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 2, section 10 and 1994, chapter 26, section 70, is further amended by adding the following clauses:

(b.8) prescribing and governing the obligations of placement co-ordinators and others in relation to ensuring that persons seeking admission to an approved charitable home for the aged are provided with information about their rights and assistance in exercising their rights, including prescribing,

(i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(v) the manner and time in which the information or assistance must be given;

(b.9) governing the transfer of information among those involved in the process of providing persons with information about their rights;

(b.10) regulating the timing of the authorization of a person's admission to an approved charitable home for the aged, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention to exercise, any of his or her rights.

Child and Family Services Act

62. The definition of "nearest relative" in subsection 4 (1) of the Child and Family Services Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 3, is repealed and the following substituted:

"nearest relative", when used in reference to a person who is less than 16 years old, means the person with lawful custody of him or her, and when used in reference to a person who is 16 years old or more, means the person who would be authorized to give or refuse consent to a treatment on his or her behalf under the Health Care Consent Act, 1995 if he or she were incapable with respect to the treatment under that Act. ("parent le plus proche")

Children's Law Reform Act

63. Subsection 10 (4) of the Children's Law Reform Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 4, is repealed and the following substituted:

Consent to procedure

(4) The Health Care Consent Act, 1995 applies to the blood test as if it were treatment under that Act.

Consent and Capacity Statute Law Amendment Act, 1992

64. (1) Subsections 7 (3) and (4) of the Consent and Capacity Statute Law Amendment Act, 1992 are repealed.

(2) Subsections 20 (59) and (60) of the Act are repealed.

(3) Section 21 of the Act is amended by adding the following subsections:

Motion to reinstate guardianship

(7) The Ontario Court (General Division) may reinstate a guardianship that has terminated under subsection (5) or (6), on motion by the guardian in the proceeding in which the guardian was appointed as committee.

Notice

(8) Notice of the motion shall be served on,

(a) the person who was subject to the guardianship that has terminated under subsection (5) or (6);

(b) any person appointed after April 2, 1995 as the guardian of property or guardian of the person for the person who was subject to the guardianship, if known; and

(c) the Public Guardian and Trustee.

Parties

(9) The parties to the motion are the moving party and the persons served under subsection (8).

Added parties

(10) A person referred to in clause (8) (b) who was not served with the notice of motion is entitled to be added as a party at any stage in the motion.

Things done after termination

(11) In a motion under subsection (7), the court may order that anything done by the guardian after the guardianship terminated shall be deemed to have been done with full authority as if the guardianship had continued in existence, subject to any terms or conditions that the court considers just.

Education Act

65. Paragraph 25 of subsection 171 (1) of the Education Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 9, is further amended by striking out "Consent to Treatment Act, 1992" in the amendment of 1992 and substituting "Health Care Consent Act, 1995".

Freedom of Information and Protection of Privacy Act

66. Clause 66 (b) of the Freedom of Information and Protection of Privacy Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 13, is amended by striking out "validated" in the third line.

Health Protection and Promotion Act

67. (1) Subsection 22 (5.1) of the Health Protection and Promotion Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 16, is repealed and the following substituted:

Health Care Consent Act, 1995

(5.1) The Health Care Consent Act, 1995 does not apply to,

(a) a physician's examination of a person pursuant to an order under this section requiring the person to submit to an examination by a physician;

(b) a physician's care and treatment of a person pursuant to an order under this section requiring the person to place himself or herself under the care and treatment of a physician.

(2) Section 33 of the Act is amended by adding the following subsection:

Health Care Consent Act, 1995

(2) The Health Care Consent Act, 1995 does not apply to the requirements prescribed by the regulations in respect of communicable diseases of the eyes of the new-born child.

(3) Subsection 35 (7.1) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 16, is repealed and the following substituted:

Health Care Consent Act, 1995

(7.1) The Health Care Consent Act, 1995 does not apply to,

(a) an examination of a person to ascertain whether he or she is infected with an agent of a virulent disease, pursuant to an order made under this section;

(b) treatment of a person for a virulent disease, pursuant to an order made under this section.

(4) Subsection 38 (2) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 16, is repealed and the following substituted:

Duty to inform

(2) If consent to the administration of an immunizing agent has been given in accordance with the Health Care Consent Act, 1995, the physician or other person authorized to administer the immunizing agent shall cause the person who has given consent to be informed of the importance of reporting to a physician forthwith any reaction that might be a reportable event.

(5) Section 102 of the Act is amended by adding the following subsection:

Health Care Consent Act, 1995

(3) The Health Care Consent Act, 1995 does not apply to a treatment that is required by an order made under this section.

Homes for the Aged and Rest Homes Act

68. (1) Section 1 of the Homes for the Aged and Rest Homes Act, as amended by the Statutes of Ontario, 1993, chapter 2, section 13 and 1994, chapter 26, section 73, is further amended by adding the following definitions:

"substitute decision-maker", in relation to a resident, means the person who would be authorized under the Health Care Consent Act, 1995 to make a decision on behalf of the resident concerning his or her personal assistance plan, if the resident were incapable with respect to the personal assistance plan under that Act.

("mandataire spécial")

(2) Clause 19.5 (d) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 15, is repealed and the following substituted:

(d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,

(i) the resident,

(ii) if the resident is mentally incapable, his or her substitute decision-maker, and

(iii) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct; and

. . . . .

(3) Subsection 30.4 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 20, is amended by striking out "to each resident of the home or joint home, as the case may be, to the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct" in the fourth, fifth, sixth, seventh, eighth, ninth and tenth lines and substituting "to the persons mentioned in subsection (1.1)".

(4) Clause 30.4 (1) (c) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 20, is repealed and the following substituted:

(c) stating that the persons mentioned in subsection (1.1) may request access to and an explanation of the resident's plan of care, and specifying the person to whom the request must be made.

(5) Section 30.4 of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 20, is amended by adding the following subsection:

Same

(1.1) The notice must be given to,

(a) each resident of the home or joint home, as the case may be;

(b) if the resident is mentally incapable, his or her substitute decision-maker; and

(c) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct.

(6) Paragraph 2 of subsection 30.6 (2) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 20, is repealed and the following substituted:

2. If a resident of the home or joint home, as the case may be, is mentally incapable, his or her substitute decision-maker.

(7) Paragraphs 2 and 3 of subsection 30.6 (3) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 20, are repealed and the following substituted:

2. If a resident of the home or joint home, as the case may be, is mentally incapable, his or her substitute decision-maker.

3. A person selected by the resident or, if the resident is mentally incapable, by his or her substitute decision-maker.

(8) Subsection 30.7 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 20, is repealed and the following substituted:

Meeting

(1) Unless a home or joint home has a residents' council, the municipality maintaining and operating the home, the municipalities maintaining and operating the joint home or the board of management of the home, as the case may be, shall, at least once in each year, convene a meeting of the following persons to advise them of their right to establish a residents' council:

1. The residents of the home or joint home, as the case may be.

2. In the case of residents who are mentally incapable, their substitute decision-makers.

(9) Subsection 31 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 2, section 21, is further amended by adding the following paragraphs:

35.1 prescribing and governing the obligations of placement co-ordinators and others in relation to ensuring that persons seeking admission to a home or joint home are provided with information about their rights and assistance in exercising their rights, including prescribing,

(i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(v) the manner and time in which the information or assistance must be given;

35.2 governing the transfer of information among those involved in the process of providing persons with information about their rights;

35.3 regulating the timing of the authorization of a person's admission to a home or joint home, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention to exercise, any of his or her rights.

Liquor Licence Act

69. (1) Section 36 of the Liquor Licence Act is amended by adding the following subsection:

Exception

(3) Subsection (2) does not apply if consent to the examination or treatment is required under the Health Care Consent Act, 1995.

(2) Section 37 of the Act is amended by adding the following subsection:

Consent to treatment

(2.1) An order under subsection (1) does not authorize the administration of a treatment without consent, if consent to the treatment is required under the Health Care Consent Act, 1995.

Loan and Trust Corporations Act

70. (1) The definition of "trust corporation" in section 1 of the Loan and Trust Corporations Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 19, is repealed and the following substituted:

"trust corporation" means a body corporate incorporated or operated,

(a) for the purpose of offering its services to the public to act as trustee, bailee, agent, executor, administrator, receiver, liquidator, assignee, guardian of property or attorney under a power of attorney for property, and

(b) for the purpose of receiving deposits from the public and of lending or investing such deposits. ("société de fiducie")

(2) Subclause 213 (2) (a) (ii) of the Act is repealed and the following substituted:

(ii) guardian of property; or

. . . . .

Long-Term Care Act, 1994

71. (1) Subsection 2 (1) of the Long-Term Care Act, 1994 is amended by adding the following definitions:

"mentally capable" means able to understand the information that is relevant to making a decision concerning the subject-matter and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision, and "mentally incapable" means not mentally capable; ("mentalement capable", "mentalement incapable")

"substitute decision-maker", in relation to a person to whom a record, information or a decision relates, means the person who would be authorized under the Health Care Consent Act, 1995 to give or refuse consent to a treatment on behalf of the person to whom the record, information or decision relates, if that person were incapable with respect to the treatment under that Act. ("mandataire spécial")

(2) The French version of subsection 22 (5) of the Act is amended by striking out "médicaux" in the second-last line and substituting "de santé".

(3) Subclause 32 (2) (a) (ii) of the Act is repealed and the following substituted:

(ii) if the person to whom the record relates is mentally incapable, with the consent of his or her substitute decision-maker, or

. . . . .

(4) The French version of clause 32 (2) (c) of the Act is amended by striking out "médicaux" in the third line and substituting "de santé".

(5) Clause 32 (2) (d) of the Act is repealed and the following substituted:

(d) a person involved in the direct health care, in a health facility, of the person to whom the record relates, without consent, if the delay required to obtain consent would result in the person to whom the record relates experiencing severe suffering, would prolong the suffering that he or she is already apparently experiencing or would put him or her at risk of sustaining serious bodily harm.

(6) Subsection 32 (2) of the Act is amended by adding the following clauses:

(g.1) a health practitioner, as defined in the Health Care Consent Act, 1995, who is determining whether the person to whom the record relates is capable with respect to a treatment for the purpose of that Act;

(g.2) an evaluator, as defined in the Health Care Consent Act, 1995, who is determining whether the person to whom the record relates is capable with respect to admission to a care facility, or with respect to a personal assistance plan, for the purpose of that Act;

(g.3) an assessor, as defined in the Substitute Decisions Act, 1992, who is performing an assessment of the capacity of the person to whom the record relates for the purpose of that Act.

(7) Clause 32 (2) (h) of the Act is repealed and the following substituted:

(h) a person who is entitled to have access to the record under section 83 of the Substitute Decisions Act, 1992.

(8) Subsection 32 (3) of the Act is amended by striking out "or to a person who is entitled to have access to the recordunder section 25 of the Advocacy Act, 1992" in the third, fourth and fifth lines.

(9) Section 32 of the Act is amended by adding the following subsection:

Alleging incapacity to P.G.T.

(5) This section does not prohibit a person from making either of the following allegations to the Public Guardian and Trustee and informing the Public Guardian and Trustee of the grounds for the allegation:

1. An allegation, for the purpose of section 27 of the Substitute Decisions Act, 1992, that a person to whom a personal record relates is incapable of managing property and that serious adverse effects are occurring or may occur as a result.

2. An allegation, for the purpose of section 62 of the Substitute Decisions Act, 1992, that a person to whom a personal record relates is incapable of personal care and that serious adverse effects are occurring or may occur as a result.

(10) Subclause 35 (2) (a) (ii) of the Act is repealed and the following substituted:

(ii) if the person to whom the information relates is mentally incapable, by his or her substitute decision-maker; or

. . . . .

(11) Subclause 35 (2) (b) (ii) of the Act is repealed and the following substituted:

(ii) if the person to whom the information relates is mentally incapable, on notice to his or her substitute decision-maker.

(12) Subsection 36 (1) of the Act is repealed and the following substituted:

Definition

(1) In this section,

"Review Board" means the Consent and Capacity Board continued under the Health Care Consent Act, 1995.

(13) Subsection 36 (10) of the Act, as re-enacted by the Statutes of Ontario, 1994, chapter 26, section 36, is repealed and the following substituted:

Procedure

(10) Section 71 of the Health Care Consent Act, 1995 applies to an application under this section, with necessary modifications.

Same

(10.1) Sections 72 to 78 of the Health Care Consent Act, 1995 and the Statutory Powers Procedure Act do not apply to an application under this section.

(14) Paragraphs 2 and 3 of subsection 36 (17) of the Act are repealed and the following substituted:

2. If the person to whom the record relates is mentally incapable, his or her substitute decision-maker.

(15) Subsection 36 (18) of the Act is amended by striking out "paragraph 1, 2 or 3" in the fourth line and substituting "a paragraph".

(16) Subsections 36 (19), (20) and (21) of the Act are repealed and the following substituted:

Application of subss. (2) to (16)

(19) If a request for access is made under subsection (17) or (18) by a person other than the person to whom the record relates, subsections (2) to (16) apply with necessary modifications to the giving of access to the person who made the request.

(17) Subsection 39 (4) of the Act is repealed and the following substituted:

Who must be given notice

(4) A notice under clause (3) (a) or (b) or a copy of a decision under clause (3) (c) shall be given to the person to whom the decision relates and to his or her substitute decision-maker.

(18) Subsection 68 (1) of the Act is amended by adding the following paragraph:

42.1 governing the giving or refusing of consent by a substitute decision-maker under subclauses 32 (2) (a) (ii) and 35 (2) (a) (ii).

Mental Health Act

72. (1) The definition of "Board" in subsection 1 (1) of the Mental Health Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

"Board" means the Consent and Capacity Board continued under the Health Care Consent Act, 1995. ("Commission")

(2) The definition of "informal patient" in subsection 1 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

"informal patient" means a person who is a patient in a psychiatric facility, having been admitted with the consent of another person under section 22 of the Health Care Consent Act, 1995. ("malade en cure facultative")

Transition, informal patient

(3) A person who is an informal patient immediately before the day subsection (2) comes into force shall be deemed to have been admitted to the psychiatric facility with the consent of another person under section 22 of the Health Care Consent Act, 1995.

(4) The definition of "rights adviser" in subsection 1 (1) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

"rights adviser" means a person, or a member of a category of persons, designated by a psychiatric facility or by the Minister to perform the functions of a rights adviser under this Act in the psychiatric facility. ("conseiller en matière de droits")

(5) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by adding the following definition:

"substitute decision-maker", in relation to a patient, means the person who would be authorized under the Health Care Consent Act, 1995 to give or refuse consent to a treatment on behalf of the patient, if the patient were incapable with respect to the treatment under that Act. ("mandataire spécial")

(6) Subsection 13 (6) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Panels of three or five members

(6) Despite subsection 71 (1) of the Health Care Consent Act, 1995, the chair shall assign the members of the Board to sit in panels of three or five members to deal with applications under this section.

Procedure

(7) Subsection 39 (6) and section 42 of this Act and clause 71 (3) (a), subsection 71 (4) and sections 72 to 78 of the HealthCare Consent Act, 1995 apply to an application under this section, with necessary modifications.

(7) Subsection 35 (1) of the Act is amended by striking out "section 36" in the first line and substituting "sections 36 and 36.3".

(8) Clause 35 (3) (b) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

(b) where the patient is not mentally competent, any person with the consent of,

(i) the patient's representative appointed under section 36.1 or 36.2, or

(ii) the patient's substitute decision-maker.

(9) The French version of clause 35 (3) (d) of the Act is amended by striking out "médicaux" in the third line and substituting "de santé".

(10) Clause 35 (3) (e) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

(e) a person currently involved in the direct health care of the patient in a health facility, without consent, if the delay required to obtain consent would result in the patient experiencing severe suffering, would prolong the suffering that the patient is already apparently experiencing or would put the patient at risk of sustaining serious bodily harm.

(11) Subsection 35 (3) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by adding the following clauses:

(e.3) a health practitioner, as defined in the Health Care Consent Act, 1995, who is determining whether the patient is capable with respect to a treatment for the purpose of that Act;

(e.4) an evaluator, as defined in the Health Care Consent Act, 1995, who is determining whether the patient is capable with respect to admission to a care facility, or with respect to a personal assistance plan, for the purpose of that Act;

(e.5) an assessor, as defined in the Substitute Decisions Act, 1992, who is performing an assessment of the patient's capacity for the purpose of that Act.

(12) Subsection 35 (4.1) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "section 24 or 25 of the Advocacy Act, 1992 or" in the fifth and sixth lines.

(13) Subsection 35 (4.2) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed.

(14) Clause 35 (9) (b) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

(b) where the patient is not mentally competent, with the consent of,

(i) the patient's representative appointed under section 36.1 or 36.2, or

(ii) the patient's substitute decision-maker; or

. . . . .

(15) Section 35 of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by adding the following subsection:

Alleging incapacity to P.G.T.

(12) This section does not prohibit a person from making either of the following allegations to the Public Guardian and Trustee and informing the Public Guardian and Trustee of the grounds for the allegation:

1. An allegation, for the purpose of section 27 of the Substitute Decisions Act, 1992, that a patient is incapable of managing property and that serious adverse effects are occurring or may occur as a result.

2. An allegation, for the purpose of section 62 of the Substitute Decisions Act, 1992, that a patient is incapable of personal care and that serious adverse effects are occurring or may occur as a result.

(16) Subsection 36 (12) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Procedure

(12) Section 71 of the Health Care Consent Act, 1995 applies to an application under subsection (4), with necessary modifications.

Same

(12.1) Sections 42 and 48 of this Act, sections 72 to 78 of the Health Care Consent Act, 1995 and the Statutory Powers Procedure Act do not apply to an application under subsection (4).

(17) Subsection 36 (14) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by striking out "or presumed" in the first line.

(18) Subsection 36 (15) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Procedure

(15) Section 42 of this Act and sections 71 to 78 of the Health Care Consent Act, 1995 apply to an application under subsection (14), with necessary modifications.

(19) Subsection 36 (16) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Patient not mentally competent

(16) If a patient is not mentally competent, the patient's representative appointed under section 36.1 or 36.2 or the patient's substitute decision-maker is entitled to examine and copy the patient's clinical record or a copy of the record.

(20) Subsection 36.1 (3) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed.

(21) Paragraph 3 of subsection 36.2 (3) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

3. The patient's substitute decision-maker.

(22) Subsection 36.2 (5) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "If the patient approves" in the first line and substituting "If the patient does not object".

(23) Subsection 36.2 (6) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "If the patient approves them" in the first line and substituting "If the patient does not object".

(24) Section 36.2 of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by adding the following subsection:

Exception

(7) This section does not apply if the claim of the patient's substitute decision-maker would prevail under section 36.3.

(25) The Act is amended by adding the following section:

Ranking

36.3 If a patient's representative appointed under section 36.1 or 36.2 and the patient's substitute decision-maker both claim the authority to give or refuse consent under clause 35 (3) (b) or 35 (9) (b) or to exercise access to a clinical record under subsection 36 (16),

(a) the claim of the substitute decision-maker prevails if he or she is a person described in paragraph 1 or 2 of subsection 18 (1) of the Health Care Consent Act, 1995; and

(b) the claim of the representative prevails if the substitute decision-maker is a person described in paragraph 3, 4, 5, 6, 7 or 8 of subsection 18 (1) of that Act.

(26) Section 39 of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by adding the following subsection:

Panels of three or five members

(5.1) Despite subsection 71 (1) of the Health Care Consent Act, 1995, the chair shall assign the members of the Board to sit in panels of three or five members to hear applications under this section.

(27) Paragraphs 1 and 2 of subsection 39 (6) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, are repealed and the following substituted:

1. A three-member panel shall consist of a psychiatrist, a lawyer and a third person who is neither a psychiatrist nor a lawyer. Despite clause 71 (3) (b) of the Health Care Consent Act, 1995, all the members of the panel are required to make up the quorum.

2. A five-member panel shall include one or two psychiatrists and one or two lawyers. The other member or members shall be persons who are neither psychiatrists nor lawyers. A majority of the members of the panel constitutes a quorum. A psychiatrist, alawyer and a member who is neither a psychiatrist nor a lawyer are required to make up the quorum.

(28) Section 39 of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by adding the following subsection:

Procedure

(7) Clause 71 (3) (a), subsection 71 (4) and sections 72 to 78 of the Health Care Consent Act, 1995 apply to an application under this section, with necessary modifications.

(29) Subsection 48 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Appeal to court

(1) A party to a proceeding under this Act before the Board may appeal the Board's decision to the Ontario Court (General Division) on a question of law or fact or both.

(30) Subsection 48 (3) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Same

(3) Section 78 of the Health Care Consent Act, 1995 applies to the appeal.

(31) Subsection 49 (1) of the Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is amended by striking out "Consent to Treatment Act, 1992" in the fifth and sixth lines and substituting "Health Care Consent Act, 1995".

(32) Subsection 60 (2) of the Act, as enacted by the Statutes of Ontario, 1992, chapter 32, section 20, is repealed and the following substituted:

Procedure

(2) Except that applications may be made not more frequently than once in any six-month period, section 42 of this Act and sections 71 to 78 of the Health Care Consent Act, 1995 apply to an application under subsection (1), with necessary modifications.

Patient discharged

(3) If an application is commenced under this section by a patient in respect of whom a notice of continuance has been issued, the application may continue to be dealt with by the Board even after the patient is discharged from the psychiatric facility.

(33) Subsection 81 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 20, is further amended by adding the following clauses:

(h) requiring and governing the designation by psychiatric facilities of persons or categories of persons to perform the functions of a rights adviser under this Act, including prescribing the qualifications and requirements that must be met by such persons before they may be designated;

(i) respecting the manner in which rights advisers must carry out their obligations under this Act;

(j) prescribing and governing the obligations of health practitioners, rights advisers, psychiatric facilities and others in relation to the provision of information about rights, and assistance in exercising rights, to persons who have been admitted to a psychiatric facility as patients and who are incapable, within the meaning of the Health Care Consent Act, 1995, with respect to treatment of a mental disorder, including prescribing,

(i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(v) the manner and time in which the information or assistance must be given;

(k) governing the transfer of information among those involved in the process of providing persons with information about their rights;

(k.1) regulating the timing of the treatment of a person in a psychiatric facility, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention to exercise, any of his or her rights;

(k.2) governing the giving or refusing of consent by a substitute decision-maker under subclauses 35 (3) (b) (ii) and 35 (9) (b) (ii).

Municipal Freedom of Information and Protection of Privacy Act

73. Clause 54 (b) of the Municipal Freedom of Information and Protection of Privacy Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 23, is amended by striking out "validated" in the third line.

Nursing Homes Act

74. (1) Subsection 1 (1) of the Nursing Homes Act, as amended by the Statutes of Ontario, 1993, chapter 2, section 28, is further amended by adding the following definitions:

("mentalement incapable")

("mandataire spécial")

(2) Clause 20.10 (d) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 33, is repealed and the following substituted:

(d) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to,

(i) the resident,

(ii) if the resident is mentally incapable, his or her substitute decision-maker, and

(iii) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct; and

. . . . .

(3) Subsection 20.16 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 34, is amended by striking out "to each resident of the nursing home, to the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct" in the second, third, fourth,fifth and sixth lines and substituting "to the persons mentioned in subsection (1.1)".

(4) Clause 20.16 (1) (c) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 34, is repealed and the following substituted:

(c) stating that the persons mentioned in subsection (1.1) may request access to and an explanation of the resident's plan of care, and specifying the person to whom the request must be made.

(5) Section 20.16 of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 34, is amended by adding the following subsection:

Same

(1.1) The notice must be given to,

(a) each resident of the nursing home;

(b) if the resident is mentally incapable, his or her substitute decision-maker; and

(c) such other person as the resident and, if the resident is mentally incapable, his or her substitute decision-maker, may direct.

(6) Paragraph 2 of subsection 29 (2) of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 2, section 40, is repealed and the following substituted:

2. If a resident of the nursing home is mentally incapable, his or her substitute decision-maker.

(7) Paragraphs 2 and 3 of subsection 29 (3) of the Act, as re-enacted by the Statutes of Ontario, 1993, chapter 2, section 40, are repealed and the following substituted:

2. If a resident of the nursing home is mentally incapable, his or her substitute decision-maker.

3. A person selected by the resident or, if the resident is mentally incapable, by his or her substitute decision-maker.

(8) Subsection 29.1 (1) of the Act, as enacted by the Statutes of Ontario, 1993, chapter 2, section 40, is repealed and the following substituted:

Meeting

(1) Unless a nursing home has a residents' council, the licensee of the nursing home shall, at least once in each year, convene a meeting of the following persons to advise them of their right to establish a residents' council:

1. The residents of the nursing home.

2. In the case of residents who are mentally incapable, their substitute decision-makers.

(9) Subsection 38 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 2, section 43 and 1994, chapter 26, section 75, is further amended by adding the following paragraphs:

32.1 prescribing and governing the obligations of placement co-ordinators and others in relation to ensuring that persons seeking admission to a nursing home are provided with information about their rights and assistance in exercising their rights, including prescribing,

(i) the information or assistance that must be given,

(ii) the categories of persons who must be given the information or assistance,

(iii) the circumstances in which the information or assistance must be given,

(iv) the persons by whom the information or assistance must be given, and

(v) the manner and time in which the information or assistance must be given;

32.2 governing the transfer of information among those involved in the process of providing persons with information about their rights;

32.3 regulating the timing of the authorization of a person's admission to a nursing home, if the person must be provided with information about his or her rights or if the person exercises, or indicates an intention to exercise, any of his or her rights.

Public Guardian and Trustee Act

75. (1) Section 2 of the Public Guardian and Trustee Act, as re-enacted by the Statutes of Ontario, 1992, chapter 32, section 25, is amended by adding the following subsection:

Other delegation

(4) The Public Guardian and Trustee may in writing delegate any of his or her powers or duties to an employee in his or her office.

(2) Subsection 7 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 25, is repealed and the following substituted:

Estates and trusts

(1) The Public Guardian and Trustee may be granted letters probate or letters of administration and, subject to subsection (1.1), may be appointed as a trustee under any Act or as trustee of any will or settlement or other instrument creating a trust or duty in the same manner as if he or she were a private trustee.

Consent required

(1.1) The Public Guardian and Trustee shall not be appointed as a trustee, by a court or otherwise, without his or her consent in writing.

(3) Section 8 of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 25, is repealed and the following substituted:

Fees

8. (1) The Public Guardian and Trustee may charge fees for anything done by the Public Guardian and Trustee under this or any other Act.

Establishing fees

(2) The Public Guardian and Trustee shall establish the fees, subject to the approval of the Attorney General.

Basis of calculation

(3) The fees may be calculated on a flat rate basis for each thing done, on an hourly basis, on the basis of actual costs incurred by the Public Guardian and Trustee, as a percentage of the income or capital of an estate, or in any other manner that the Public Guardian and Trustee considers appropriate.

Other Acts

(4) This section prevails over a provision relating to fees in any other Act, except subsection 40 (3) of the Substitute Decisions Act, 1992.

(4) Subsection 9 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 25, is further amended by striking out "charges, remuneration, refunds of expenses, and all" in the first and second lines and substituting "and other".

(5) Clause 14 (b) of the Act, as amended by the Statutes of Ontario, 1992, chapter 32, section 25, is repealed and the following substituted:

(b) respecting the application and disposal of fees and other income of the office of the Public Guardian and Trustee.

PART V

TRANSITION, COMMENCEMENT AND SHORT TITLE

Transition; certain orders under the Mental Health Act

76. (1) The Public Guardian and Trustee shall be deemed to be a person's guardian of property appointed under section 22 of the Substitute Decisions Act, 1992 if,

(a) immediately before April 3, 1995, the Public Trustee was managing the person's estate pursuant to an order under section 72 of the Mental Health Act, as it then read; and

(b) no order was made after April 2, 1995 and before the day this section comes into force relinquishing the management of the estate by the Public Guardian and Trustee.

Transition; certain residents of homes for special care

(2) The Public Guardian and Trustee is a person's statutory guardian of property as if the guardianship had been created under section 16 of the Substitute Decisions Act, 1992 if,

(a) the person was discharged from a psychiatric facility under the Mental Health Act to a home for special care under the Homes for Special Care Act before April 3, 1995;

(b) on the day this section comes into force, the person continues to be a resident of a home for special care under the Homes for Special Care Act;

(c) pursuant to a certificate of incompetence issued under the Mental Health Act, the Public Trustee was the committee of the person's estate immediately before the person was discharged from the psychiatric facility to the home for special care;

(d) a notice of continuance was issued in respect of the person under the Mental Health Act before the person was discharged from the psychiatric facility to the home for special care;

(e) no order directing the Public Trustee to continue to manage the person's estate was made before April 3, 1995 under section 72 of the Mental Health Act as it then read; and

(f) no order appointing the Public Trustee as committee of the person's estate was made before April 3, 1995 under the Mental Incompetency Act.

Transition; previous powers of attorney

77. Nothing in this Act invalidates a power of attorney given before Part III (Substitute Decisions Act, 1992) comes into force.

Commencement

78. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short Title

79. The short title of this Act is the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995.

SCHEDULE A

HEALTH CARE CONSENT ACT, 1995

CONTENTS

PART I

GENERAL

Purposes

Interpretation

Capacity

Wishes

Research, sterilization, transplants

Restraint, confinement

PART II

TREATMENT

General

Application of Part

Meaning of "substitute decision-maker"

Consent to Treatment

10.

11.

12.

13.

No treatment without consent

Elements of consent

Included consent

Plan of treatment

Withdrawal of consent

Capacity

14.

15.

16.

17.

Capacity depends on treatment and time

Return of capacity

Treatment must not begin

Order authorizing treatment pending appeal

Consent on Incapable Person's Behalf

18.

19.

20.

21.

22.

Determining who may give or refuse consent

Principles for giving or refusing consent

Information

Ancillary treatment

Admission to hospital, etc.

Emergency Treatment

23.

24.

25.

26.

Emergency treatment without consent

No treatment contrary to wishes

Emergency treatment despite refusal

Admission to hospital, etc.

Protection from Liability

27.

28.

29.

Health practitioner

Person making decision on another's behalf

Admission to hospital, etc.

Applications to Board

30.

31.

32.

33.

34.

35.

Application for review of finding of incapacity

Application for appointment of representative

Application with respect to place of treatment

Application for directions

Application to depart from wishes

Application to determine compliance with s. 19

PART III

ADMISSION TO CARE FACILITIES

General

36.

37.

Application of Part

Meaning of "substitute decision-maker"

Consent on Incapable Person's Behalf

38.

39.

40.

41.

42.

43.

44.

Consent on incapable person's behalf

Determining who may give or refuse consent

Principles for giving or refusing consent

Information

Ancillary decisions

Withdrawal of consent

Admission must not be authorized

Crisis Admission

45.

Authorization of admission without consent

Protection from Liability

46.

47.

Person responsible for authorizing admissions

Person making decision on another's behalf

Applications to Board

48.

49.

50.

51.

52.

Application for review of finding of incapacity

Application for appointment of representative

Application for directions

Application to depart from wishes

Application to determine compliance with s. 40

PART IV

PERSONAL ASSISTANCE PLANS

General

53.

54.

Application of Part

Meaning of "substitute decision-maker"

Decision on Incapable Resident's Behalf

55.

56.

57.

58.

59.

60.

Decision on incapable resident's behalf

Determining who may make decision

Principles for making decision

Information

Change of decision

Included consent

Protection from Liability

61.

62.

Person responsible for personal assistance plan

Person making decision on resident's behalf

Applications to Board

63.

64.

65.

66.

67.

Application for review of finding of incapacity

Application for appointment of representative

Application for directions

Application to depart from wishes

Application to determine compliance with s. 57

PART V

CONSENT AND CAPACITY BOARD

68.

69.

70.

71.

72.

73.

74.

75.

76.

77.

78.

79.

Consent and Capacity Board

Chair and vice-chairs

Staff

Single member or panel of members

Disqualification

Hearing and decision

Examination of documents

Communication re subject-matter of hearing

Participation in decision

Release of evidence

Appeal

Counsel for incapable person

PART VI

MISCELLANEOUS

80.

81.

82.

83.

84.

85.

86.

87.

88.

89.

90.

91.

92.

93.

Offence: false assertion

Offence: misrepresentation of wishes

Offence: decision contrary to wishes

Regulations

Conflict with Child and Family Services Act

Transition, treatment

Transition, admission

Transition, section 17

Transition, section 30

Transition, section 31

Transition, section 32

Transition, section 33

Transition, section 34

Short title

____________________________

PART I

GENERAL

Purposes

1. The purposes of this Act are,

(a) to provide rules with respect to consent to treatment that apply consistently in all settings;

(b) to facilitate treatment, admission to care facilities, and personal assistance services in care facilities, for persons lacking the capacity to make decisions about such matters;

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who reside in care facilities by,

(i) allowing those who have been found to be incapable to appeal the finding to a tribunal,

(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or a personal assistance plan, and,

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to;

(d) to promote communication and understanding between health practitioners and their patients or clients;

(e) to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment, admission to a care facility or a personal assistance plan; and

(f) to permit intervention by the Public Guardian and Trustee only as a last resort in decisions on behalf of incapable persons concerning treatment, admission to a care facility or a personal assistance plan.

Definitions

2. (1) In this Act,

"attorney for personal care" means an attorney under a power of attorney for personal care given under the Substitute Decisions Act, 1992; ("procureur au soin de la personne")

"Board" means the Consent and Capacity Board; ("Commission")

"capable" means mentally capable, and "capacity" has a corresponding meaning; ("capable", "capacité")

"care facility" means,

(a) an approved charitable home for the aged, as defined in the Charitable Institutions Act,

(b) a home or joint home, as defined in the Homes for the Aged and Rest Homes Act,

(d) a facility prescribed by the regulations as a care facility; ("établissement de soins")

"course of treatment" means a series or sequence of similar treatments administered to a person over a period of time for a particular health problem; ("série de traitements")

"evaluator" means, in the circumstances prescribed by the regulations, a person described in clause (a), (l), (m), (o), (p) or (q) of the definition of "health practitioner" in thissubsection or a member of a category of persons prescribed by the regulations as evaluators; ("appréciateur")

"guardian of the person" means a guardian of the person appointed under the Substitute Decisions Act, 1992; ("tuteur à la personne")

"health practitioner" means,

(a) a member of the College of Audiologists and Speech-Language Pathologists of Ontario,

(b) a member of the College of Chiropodists of Ontario, including a member who is a podiatrist,

(d) a member of the College of Dental Hygienists of Ontario,

(e) a member of the Royal College of Dental Surgeons of Ontario,

(f) a member of the College of Denturists of Ontario,

(g) a member of the College of Dietitians of Ontario,

(h) a member of the College of Massage Therapists of Ontario,

(i) a member of the College of Medical Laboratory Technologists of Ontario,

(j) a member of the College of Medical Radiation Technologists of Ontario,

(k) a member of the College of Midwives of Ontario,

(l) a member of the College of Nurses of Ontario,

(m) a member of the College of Occupational Therapists of Ontario,

(n) a member of the College of Optometrists of Ontario,

(o) a member of the College of Physicians and Surgeons of Ontario,

(p) a member of the College of Physiotherapists of Ontario,

(q) a member of the College of Psychologists of Ontario,

(r) a member of the College of Respiratory Therapists of Ontario,

(s) a naturopath registered as a drugless therapist under the Drugless Practitioners Act, or

(t) a member of a category of persons prescribed by the regulations as health practitioners; ("praticien de la santé")

"hospital" means an institution as defined in the Mental Hospitals Act, a private hospital as defined in the Private Hospitals Act or a hospital as defined in the Public Hospitals Act; ("hôpital")

"incapable" means mentally incapable, and "incapacity" has a corresponding meaning; ("incapable", "incapacité")

"mental disorder" has the same meaning as in the Mental Health Act; ("trouble mental")

"personal assistance plan" means a plan developed by a care facility that describes one or more personal assistance services to be provided to a resident; ("programme d'aide personnelle")

"personal assistance service" means assistance with or supervision of a routine activity of living, including one that relates to a person's health care, nutrition, shelter, clothing, hygiene or safety, but does not include anything prescribed by the regulations as not constituting a personal assistance service; ("service d'aide personnelle")

"plan of treatment" means a plan that,

(a) is developed by one or more health practitioners,

(b) deals with one or more of the health problems that a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person's current health condition, and

(c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person's current health condition; ("plan de traitement")

"psychiatric facility" has the same meaning as in the Mental Health Act; ("établissement psychiatrique")

"regulations" means the regulations made under this Act;

("règlements")

"resident" means a resident of a care facility who is 16 years old or older; ("pensionnaire")

"treatment" means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment or plan of treatment, but does not include,

(a) the assessment for the purpose of this Act of a person's capacity with respect to a treatment, admission to a care facility or a personal assistance plan, the assessment for the purpose of the Substitute Decisions Act, 1992 of a person's capacity to manage property or a person's capacity for personal care, or the assessment of a person's capacity for any other purpose,

(b) the assessment or examination of a person to determine the general nature of the person's condition,

(d) the communication of an assessment or diagnosis,

(e) the admission of a person to a hospital or other facility,

(f) a personal assistance service,

(g) a treatment that in the circumstances poses little or no risk of harm to the person,

(h) anything prescribed by the regulations as not constituting treatment. ("traitement")

Refusal of consent

(2) A reference in this Act to refusal of consent includes withdrawal of consent.

Capacity

3. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance plan if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance plan, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and a personal assistance plan.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance plan, as the case may be.

Wishes

4. (1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service.

Manner of expression

(2) Wishes may be expressed in a power of attorney, in a form prescribed by the regulations, in any other written form, orally or in any other manner.

Later wishes prevail

(3) Later wishes expressed while capable prevail over earlier wishes.

Research, sterilization, transplants

5. This Act does not affect the law relating to giving or refusing consent on another person's behalf to any of the following procedures:

1. A procedure whose primary purpose is research.

2. Sterilization that is not medically necessary for the protection of the person's health.

3. The removal of regenerative or non-regenerative tissue for implantation in another person's body.

Restraint, confinement

6. This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others.

PART II

TREATMENT

General

Application of Part

7. (1) This Part applies to treatment.

Law not affected

(2) This Part does not affect the law relating to giving or refusing consent to anything not included in the definition of "treatment" in subsection 2 (1).

Meaning of "substitute decision-maker"

8. In this Part,

"substitute decision-maker" means a person who is authorized under section 18 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment.

Consent to Treatment

No treatment without consent

9. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act.

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner's finding, or by a court on an appeal of the Board's decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.

Elements of consent

10. (1) The following are the elements required for consent to treatment:

1. The consent must relate to the treatment.

2. The consent must be informed.

3. The consent must be given voluntarily.

4. The consent must not be obtained through misrepresentation or fraud.

Informed consent

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters.

Same

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment.

Express or implied

(4) Consent to treatment may be express or implied.

Included consent

11. Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes,

(a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and

(b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered.

Plan of treatment

12. If a plan of treatment is to be proposed for a person, one health practitioner may,

(a) propose the plan of treatment on behalf of all the health practitioners involved in the plan;

(b) make a determination respecting the person's capacity with respect to the plan as a whole, on behalf of all the health practitioners involved in the plan; and

Withdrawal of consent

13. A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time,

(a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal;

(b) by the person's substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal.

Capacity

Capacity depends on treatment

14. (1) A person may be incapable with respect to some treatments and capable with respect to others.

Capacity depends on time

(2) A person may be incapable with respect to a treatment at one time and capable at another.

Return of capacity

15. If, after consent to a treatment is given or refused on a person's behalf in accordance with this Act, the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person's own decision to give or refuse consent to the treatment governs.

Treatment must not begin

16. (1) This section applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment;

(b) the health practitioner is informed that the person intends to apply to the Board for a review of the finding; and

Same

(2) This section also applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment;

(b) the health practitioner is informed that,

(i) the incapable person intends to apply to the Board for appointment of a representative to give or refuse consent to the treatment on his or her behalf, or

(ii) another person intends to apply to the Board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his or her behalf; and

Same

(3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun,

(a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made;

(b) until the application to the Board has been withdrawn;

(c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board's decision; or

(d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board's decision,

(i) until the period for commencing the appeal has elapsed without an appeal being commenced, or

(ii) until the appeal of the Board's decision has been finally disposed of.

Emergency

(4) This section does not apply if the health practitioner is of the opinion that there is an emergency within the meaning of section 23.

Order authorizing treatment pending appeal

17. (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 16, if the court to which the appeal is taken so orders and the consent is given.

Criteria for order

(2) The court may make the order if it is satisfied,

(a) that,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person's condition will not or is not likely to improve without the treatment, or

(ii) the person's condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate;

(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) that the person's condition makes it necessary to administer the treatment before the final disposition of the appeal.

Consent on Incapable Person's Behalf

List of persons who may give or refuse consent

18. (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person's guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The incapable person's attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person's representative appointed by the Board under section 31, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person's spouse or partner.

5. A child or parent of the incapable person, or a children's aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children's aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person.

Requirements

(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person's parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent.

Ranking

(3) A person described in a paragraph of subsection (1) may give or refuse consent only if no person described in an earlier paragraph meets the requirements of subsection (2).

Same

(4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may give or refuse consent if he or she believes that no other person described in an earlier paragraph or the same paragraph exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision.

No person in subs. (1) to make decision

(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent.

Conflict between persons in same paragraph

(6) If two or more persons who are described in the same paragraph of subsection (1) and who meet the requirements of subsection (2) disagree about whether to give or refuse consent, and if their claims rank ahead of all others, the Public Guardian and Trustee shall make the decision in their stead.

Meaning of "spouse"

(7) Subject to subsection (8), two persons are spouses for the purpose of this section if they are of opposite sex and,

(a) are married to each other; or

(b) are living in a conjugal relationship outside marriage and,

(i) have cohabited for at least one year,

(ii) are together the parents of a child, or

(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act .

Not spouse

(8) Two persons are not spouses for the purpose of this section if they are living separate and apart within the meaning of the Divorce Act (Canada).

Meaning of "partner"

(9) Two persons are partners for the purpose of this section if they have lived together for at least one year and have a close personal relationship that is of primary importance in both persons' lives.

Meaning of "relative"

(10) Two persons are relatives for the purpose of this section if they are related by blood, marriage or adoption.

Meaning of "available"

(11) For the purpose of clause (2) (d), a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent or refusal.

Principles for giving or refusing consent

19. (1) A person who gives or refuses consent to a treatment on an incapable person's behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests.

Best interests

(2) In deciding what the incapable person's best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

1. Whether the treatment is likely to,

i. improve the incapable person's condition or well-being,

ii. prevent the incapable person's condition or well-being from deteriorating, or

iii. reduce the extent to which, or the rate at which, the incapable person's condition or well-being is likely to deteriorate.

2. Whether the incapable person's condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

Information

20. Before giving or refusing consent to a treatment on an incapable person's behalf, a substitute decision-maker is entitled to receive all the information required for an informed consent as described in subsection 10 (2).

Ancillary treatment

21. Authority to consent to a treatment on an incapable person's behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.

Admission to hospital, etc.

22. (1) Subject to subsection (2), a substitute decision-maker who consents to a treatment on an incapable person's behalf may consent to the incapable person's admission to a hospital or psychiatric facility or to another health facility prescribed by the regulations, for the purpose of the treatment.

Objection, psychiatric facility

(2) If the incapable person is 16 years old or older and objects to being admitted to a psychiatric facility for treatment of a mental disorder, consent to his or her admission may be given only by,

(a) his or her guardian of the person, if the guardian has authority to consent to the admission; or

(b) his or her attorney for personal care, if the power of attorney contains a provision authorizing the attorney to use force that is necessary and reasonable in the circumstances to admit the incapable person to the psychiatric facility and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992.

Emergency Treatment

Meaning of "emergency"

23. (1) For the purpose of this section and section 25, there is an emergency if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm.

Emergency treatment without consent: incapable person

(2) Despite section 9, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment,

(a) there is an emergency; and

(b) the delay required to obtain a consent or refusal on the person's behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm.

Emergency treatment without consent: capable person

(3) Despite section 9, a treatment may be administered without consent to a person who is apparently capable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment,

(a) there is an emergency;

(b) the communication required in order for the person to give or refuse consent to the treatment cannot take place because of a language barrier or because the person has a disability that prevents the communication from taking place;

(c) steps that are reasonable in the circumstances have been taken to find a practical means of enabling the communication to take place, but no such means has been found;

(d) the delay required to find a practical means of enabling the communication to take place will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm; and

(e) there is no reason to believe that the person does not want the treatment.

Examination without consent

(4) Despite section 9, an examination or diagnostic procedure that constitutes treatment may be conducted by a health practitioner without consent if,

(a) the examination or diagnostic procedure is reasonably necessary in order to determine whether there is an emergency; and

(b) in the opinion of the health practitioner,

(i) the person is incapable with respect to the examination or diagnostic procedure, or

(ii) clauses (3) (b) and (c) apply to the examination or diagnostic procedure.

Record

(5) After administering a treatment in reliance on subsection (2) or (3), the health practitioner shall promptly note in the person's record the opinions held by the health practitioner that are required by the subsection on which he or she relied.

Continuing treatment

(6) Treatment under subsection (2) may be continued only for as long as is reasonably necessary to find the incapable person's substitute decision-maker and to obtain from him or her a consent, or refusal of consent, to the continuation of the treatment.

Same

(7) Treatment under subsection (3) may be continued only for as long as is reasonably necessary to find a practical means of enabling the communication to take place so that the person can give or refuse consent to the continuation of the treatment.

(8) When a treatment is begun under subsection (2) or (3), the health practitioner shall ensure that reasonable efforts are made for the purpose of finding the substitute decision-maker, or a means of enabling the communication to take place, as the case may be.

Return of capacity

(9) If, after a treatment is begun under subsection (2), the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person's own decision to give or refuse consent to the continuation of the treatment governs.

No treatment contrary to wishes

24. A health practitioner shall not administer a treatment under section 23 if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment.

Emergency treatment despite refusal

25. If consent to a treatment is refused on an incapable person's behalf by his or her substitute decision-maker, the treatment may be administered despite the refusal if, in the opinion of the health practitioner proposing the treatment,

(a) there is an emergency; and

(b) the substitute decision-maker did not comply with section 19.

Admission to hospital, etc.

26. The authority to administer a treatment to a person under section 23 or 25 includes authority to have the person admitted to a hospital or psychiatric facility for the purpose of the treatment, unless the person objects and the treatment is primarily treatment of a mental disorder.

Protection from Liability

Apparently valid consent to treatment

27. (1) If a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for administering the treatment without consent.

Apparently valid refusal of treatment

(2) If a treatment is not administered to a person because of a refusal that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for failing to administer the treatment.

Apparently valid consent to withholding or withdrawal

(3) If a treatment is withheld or withdrawn in accordance with a plan of treatment and with a consent to the plan of treatment that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for withholding or withdrawing the treatment.

Emergency: treatment administered

(4) A health practitioner who, in good faith, administers a treatment to a person under section 23 or 25 is not liable for administering the treatment without consent.

Emergency: treatment not administered

(5) A health practitioner who, in good faith, refrains from administering a treatment in accordance with section 24 is not liable for failing to administer the treatment.

Reliance on assertion

(6) If a person who gives or refuses consent to a treatment on an incapable person's behalf asserts that he or she,

(a) is a person described in subsection 18 (1) or clause 22 (2) (a) or (b) or an attorney for personal care described in clause 30 (2) (b);

(b) meets the requirement of clause 18 (2) (b) or (c); or

a health practitioner is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances.

Person making decision on another's behalf

28. A person who gives or refuses consent to a treatment on another person's behalf, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent.

Admission to hospital, etc.

29. (1) Sections 27 and 28, except subsection 27 (4), apply, with necessary modifications, to admission of the incapable person to a hospital, psychiatric facility or other health facility referred to in section 22, for the purpose of treatment.

Same

(2) A health practitioner who, in good faith, has a person admitted to a hospital or psychiatric facility under section 26 is not liable for having the person admitted without consent.

Applications to Board

Application for review of finding of incapacity

30. (1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner's finding that he or she is incapable with respect to the treatment.

Exception

(2) Subsection (1) does not apply to,

(a) a person who has a guardian of the person, if the guardian has authority to give or refuse consent to the treatment;

(b) a person who has an attorney for personal care, if the power of attorney contains a provision waiving the person's right to apply for the review and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992.

Parties

(3) The parties to the application are:

1. The person applying for the review.

2. The health practitioner.

3. Any other person whom the Board specifies.

Powers of Board

(4) The Board may confirm the health practitioner's finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner.

Restriction on repeated applications

(5) If a health practitioner's finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance.

Same

(6) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the person's capacity.

Application for appointment of representative

31. (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf.

Application by proposed representative

(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person.

Exception

(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority.

Parties

(4) The parties to the application are:

1. The incapable person.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 18 (1).

4. The health practitioner who proposed the treatment.

5. Any other person whom the Board specifies.

Appointment

(5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person's behalf,

(a) to the proposed treatment;

(b) to one or more treatments or kinds of treatment specified by the Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or

(c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it.

Criteria for appointment

(6) The Board may make an appointment under this section if it is satisfied that the following requirements are met:

1. The incapable person does not object to the appointment.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person's best interests.

Powers of Board

(7) Unless the incapable person objects, the Board may,

(a) appoint as representative a different person than the one named in the application;

(b) limit the duration of the appointment;

(d) on any person's application, remove, vary or suspend a condition imposed on the appointment or impose an additional condition on the appointment.

Termination

(8) The Board may, on any person's application, terminate an appointment made under this section if,

(a) the incapable person or the representative requests the termination of the appointment;

(b) the representative is no longer capable with respect to the treatments or the kinds of treatment for which the appointment was made;

(d) the incapable person has a guardian of the person who has authority to consent to the treatments or the kinds of treatment for which the appointment was made, or an attorney for personal care under a power of attorney conferring that authority.

Application with respect to place of treatment

32. (1) A person may apply to the Board for a review of a decision to consent on the person's behalf to the person's admission to a hospital, psychiatric facility or other health facility referred to in section 22 for the purpose of treatment.

Exception

(2) Subsection (1) does not apply to a decision to consent on the person's behalf to the person's admission to a psychiatric facility as an informal patient, as defined in the Mental Health Act, if the person is at least 12 years old but less than 16 years old.

Admission and treatment despite application

(3) The decision to admit the person to the hospital, psychiatric facility or health facility may take effect, and the treatment may be administered, even if the person indicates that he or she intends to apply to the Board under subsection (1) orunder subsection 13 (1) of the Mental Health Act and even if the application to the Board has been made and has not yet been finally disposed of.

Parties

(4) The parties to the application are:

1. The person applying for the review.

2. The person who consented to the admission.

3. The health practitioner who proposed the treatment.

4. Any other person whom the Board specifies.

Considerations

(5) In reviewing the decision to admit the person to the hospital, psychiatric facility or health facility for the purpose of treatment, the Board shall consider,

(a) whether the hospital, psychiatric facility or health facility can provide the treatment;

(b) whether the hospital, psychiatric facility or health facility is the least restrictive setting available in which the treatment can be administered;

(c) whether the person's needs could more appropriately be met if the treatment were administered in another place and whether space is available for the person in the other place;

(d) the person's views and wishes, if they can be reasonably ascertained; and

(e) any other matter that the Board considers relevant.

Order

(6) The Board may,

(a) direct that the person be discharged from the hospital, psychiatric facility or health facility; or

(b) confirm the decision to admit the person to the hospital, psychiatric facility or health facility.

Restriction on repeated applications

(7) If the decision to admit the person is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of the decision to admit within six months after the final dispositionof the earlier application, unless the Board gives leave in advance.

Same

(8) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the decision to admit.

Application under Mental Health Act

(9) For the purpose of subsection (7), a final disposition of an application made under section 13 of the Mental Health Act shall be deemed to be a final disposition of an application under this section.

Application for directions

33. (1) A substitute decision-maker may apply to the Board for directions if the incapable person expressed a wish with respect to the treatment, but,

(a) the wish is not clear;

(b) it is not clear whether the wish is applicable to the circumstances;

(d) it is not clear whether the wish was expressed after the incapable person attained 16 years of age.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The incapable person.

3. The health practitioner who proposed the treatment.

4. Any other person whom the Board specifies.

Directions

(3) The Board may give the substitute decision-maker directions and, in doing so, shall apply section 19.

Application to depart from wishes

34. (1) If a substitute decision-maker is required by paragraph 1 of subsection 19 (1) to refuse consent to a treatment because of a wish expressed by the incapable person while capable and after attaining 16 years of age, the substitute decision-maker may apply to the Board for permission to consent to the treatment despite the wish.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The incapable person.

3. The health practitioner who proposed the treatment.

4. Any other person whom the Board specifies.

Criteria for permission

(3) The Board may give the substitute decision-maker permission to consent to the treatment despite the wish if it is satisfied that the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.

Application to determine compliance with s. 19

35. (1) If consent to a treatment is given or refused on an incapable person's behalf by his or her substitute decision-maker, and if the health practitioner who proposed the treatment is of the opinion that the substitute decision-maker did not comply with section 19, the health practitioner may apply to the Board for a determination as to whether the substitute decision-maker complied with section 19.

Parties

(2) The parties to the application are:

1. The health practitioner who proposed the treatment.

2. The incapable person.

3. The substitute decision-maker.

4. Any other person whom the Board specifies.

Power of Board

(3) In determining whether the substitute decision-maker complied with section 19, the Board may substitute its opinion for that of the substitute decision-maker.

Directions

(4) If the Board determines that the substitute decision-maker did not comply with section 19, it may give him or her directions and, in doing so, shall apply section 19.

Time for compliance

(5) The Board shall specify the time within which its directions must be complied with.

Deemed not authorized

(6) If the substitute decision-maker does not comply with the Board's directions within the time specified by the Board, he or she shall be deemed not to be authorized to give or refuse consent to the treatment on the incapable person's behalf.

P.G.T.

(7) If the substitute decision-maker is the Public Guardian and Trustee acting under subsection 18 (5), he or she shall comply with the Board's directions, and subsection (6) does not apply to him or her.

PART III

ADMISSION TO CARE FACILITIES

General

Application of Part

36. This Part applies to admission to a care facility.

Meaning of "substitute decision-maker"

37. In this Part,

"substitute decision-maker" means a person who is authorized under section 39 to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission.

Consent on Incapable Person's Behalf

Consent on incapable person's behalf

38. If a person's consent to his or her admission to a care facility is required by law and the person is found by an evaluator to be incapable with respect to the admission, consent may be given on the person's behalf by his or her substitute decision-maker in accordance with this Act.

Determining who may give or refuse consent

39. Section 18 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission.

Principles for giving or refusing consent

40. (1) A person who gives or refuses consent on an incapable person's behalf to his or her admission to a care facility shall do so in accordance with the following principles:

Best interests

(2) In deciding what the incapable person's best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to admission to a care facility that are not required to be followed under paragraph 1 of subsection (1); and

1. Whether admission to the care facility is likely to,

i. improve the quality of the incapable person's life,

ii. prevent the quality of the incapable person's life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the incapable person's life is likely to deteriorate.

2. Whether the quality of the incapable person's life is likely to improve, remain the same or deteriorate without admission to the care facility.

3. Whether the benefit the incapable person is expected to obtain from admission to the carefacility outweighs the risk of negative consequences to him or her.

4. Whether a course of action that is less restrictive than admission to the care facility is available and is appropriate in the circumstances.

Information

41. Before giving or refusing consent on an incapable person's behalf to his or her admission to a care facility, a substitute decision-maker is entitled to receive all the information required in order to make the decision.

Ancillary decisions

42. (1) Authority to consent on an incapable person's behalf to his or her admission to a care facility includes authority to make decisions that are necessary and ancillary to the admission.

Collection and disclosure of information

(2) A decision concerning the collection and disclosure of information relating to the incapable person is a decision that is necessary and ancillary to the admission if the information is required for the purpose of the admission.

Exception

(3) Subsection (1) does not authorize the making of a decision concerning the incapable person's property.

Withdrawal of consent

43. Authority to consent on an incapable person's behalf to his or her admission to a care facility includes authority to withdraw the consent at any time before the admission.

Admission must not be authorized

44. (1) This section applies if,

(a) an evaluator finds that a person is incapable with respect to his or her admission to a care facility;

(b) the person responsible for authorizing admissions to the care facility is informed that the person who was found to be incapable intends to apply to the Board for a review of the finding; and

Same

(2) This section also applies if,

(a) an evaluator finds that a person is incapable with respect to his or her admission to a care facility;

(b) the person responsible for authorizing admissions to the care facility is informed that,

(i) the incapable person intends to apply to the Board for appointment of a representative to give or refuse consent to the admission on his or her behalf, or

(ii) another person intends to apply to the Board to be appointed as the representative of the incapable person to give or refuse consent to the admission on his or her behalf; and

Same

(3) In the circumstances described in subsections (1) and (2), the person responsible for authorizing admissions to the care facility shall not authorize the person's admission, and shall take reasonable steps to ensure that the person's admission is not authorized,

(a) until 48 hours have elapsed since the person responsible for authorizing admissions to the care facility was first informed of the intended application to the Board without an application being made;

(b) until the application to the Board has been withdrawn;

(c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the person responsible for authorizing admissions to the care facility that he or she intends to appeal the Board's decision; or

(d) if a party to the application before the Board has informed the person responsible for authorizing admissions to the care facility that he or she intends to appeal the Board's decision,

(i) until the period for commencing the appeal has elapsed without an appeal being commenced, or

(ii) until the appeal of the Board's decision has been finally disposed of.

Crisis

(4) This section does not apply if the person responsible for authorizing admissions to the care facility is of the opinion that the incapable person requires immediate admission to a care facility as a result of a crisis.

Admission for definite stay

(5) This section does not apply to the authorization of a person's admission to a care facility for a stay of a definite number of days.

Crisis Admission

Authorization of admission without consent

45. (1) Despite any law to the contrary, if a person is found by an evaluator to be incapable with respect to his or her admission to a care facility, the person's admission may be authorized, and the person may be admitted, without consent, if in the opinion of the person responsible for authorizing admissions to the care facility,

(a) the incapable person requires immediate admission to a care facility as a result of a crisis; and

(b) it is not reasonably possible to obtain an immediate consent or refusal on the incapable person's behalf.

(2) When an admission to a care facility is authorized under subsection (1), the person responsible for authorizing admissions to the care facility shall ensure that reasonable efforts are made for the purpose of finding the incapable person's substitute decision-maker and obtaining from him or her a consent, or refusal of consent, to the admission.

Protection from Liability

Apparently valid consent to admission

46. (1) If the person responsible for authorizing admissions to a care facility admits, or authorizes the admission of, a person to the care facility with a consent that he or she believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, he or she is not liable for admitting the person, or authorizing the person's admission, without consent.

Apparently valid refusal of admission

(2) If the person responsible for authorizing admissions to a care facility does not admit, or does not authorize the admission of, a person to the care facility because of a refusal that he or she believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, he or she is not liable for failing to admit the person or failing to authorize the person's admission.

Crisis admission

(3) If the person responsible for authorizing admissions to a care facility admits, or authorizes the admission of, a person tothe care facility under section 45 in good faith, he or she is not liable for admitting the person, or authorizing the person's admission, without consent.

Reliance on assertion

(4) If a person who gives or refuses consent to admission to a care facility on an incapable person's behalf asserts that he or she,

(a) is a person described in subsection 18 (1), as it applies for the purpose of section 39, or an attorney for personal care described in clause 48 (2) (b);

(b) meets the requirement of clause 18 (2) (b) or (c), as it applies for the purpose of section 39; or

the person responsible for authorizing admissions to the care facility is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances.

Person making decision on another's behalf

47. A person who gives or refuses consent on another person's behalf to his or her admission to a care facility, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent.

Applications to Board

Application for review of finding of incapacity

48. (1) A person may apply to the Board for a review of an evaluator's finding that he or she is incapable with respect to his or her admission to a care facility.

Exception

(2) Subsection (1) does not apply to,

(a) a person who has a guardian of the person, if the guardian has authority to give or refuse consent to the person's admission to a care facility;

Parties

(3) The parties to the application are:

1. The person applying for the review.

2. The evaluator.

3. The person responsible for authorizing admissions to the care facility.

4. Any other person whom the Board specifies.

Subss. 30 (4) to (6) apply

(4) Subsections 30 (4) to (6) apply, with necessary modifications, to an application under this section.

Application for appointment of representative

49. (1) A person who is 16 years old or older and who is incapable with respect to his or her admission to a care facility may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf.

Application by proposed representative

(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to his or her admission to a care facility, to give or refuse consent on behalf of the incapable person.

Exception

(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the person's admission to a care facility, or an attorney for personal care under a power of attorney conferring that authority.

Parties

(4) The parties to the application are:

1. The incapable person.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 18 (1), as it applies for the purpose of section 39.

4. The person responsible for authorizing admissions to the care facility.

5. Any other person whom the Board specifies.

Appointment

(5) In an appointment under this section, the Board may authorize the representative,

(a) to give or refuse consent to the incapable person's admission to one or more care facilities specified by the Board, or to give or refuse consent to the incapable person's admission to any care facility;

(b) to give or refuse consent on a particular occasion, or to give or refuse consent at any time.

Subss. 31 (6) to (8) apply

(6) Subsections 31 (6) to (8) apply, with necessary modifications, to an appointment under this section.

Application for directions

50. (1) A substitute decision-maker may apply to the Board for directions if the incapable person expressed a wish with respect to his or her admission to a care facility, but,

(a) the wish is not clear;

(b) it is not clear whether the wish is applicable to the circumstances;

(d) it is not clear whether the wish was expressed after the incapable person attained 16 years of age.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The incapable person.

3. The person responsible for authorizing admissions to the care facility.

4. Any other person whom the Board specifies.

Directions

(3) The Board may give the substitute decision-maker directions and, in doing so, shall apply section 40.

Application to depart from wishes

51. (1) If a substitute decision-maker is required by paragraph 1 of subsection 40 (1) to refuse consent to the incapable person's admission to a care facility because of a wish expressed by the incapable person while capable and after attaining 16 years of age, the substitute decision-maker may apply to the Board for permission to consent to the admission despite the wish.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The incapable person.

3. The person responsible for authorizing admissions to the care facility.

4. Any other person whom the Board specifies.

Criteria for permission

(3) The Board may give the substitute decision-maker permission to consent to the admission despite the wish if it is satisfied that the incapable person, if capable, would probably give consent because the likely result of the admission is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.

Application to determine compliance with s. 40

52. (1) If consent to admission to a care facility is given or refused on an incapable person's behalf by his or her substitute decision-maker, and if the person responsible for authorizing admissions to the care facility is of the opinion that the substitute decision-maker did not comply with section 40, the person responsible for authorizing admissions to the care facility may apply to the Board for a determination as to whether the substitute decision-maker complied with section 40.

Parties

(2) The parties to the application are:

1. The person responsible for authorizing admissions to the care facility.

2. The incapable person.

3. The substitute decision-maker.

4. Any other person whom the Board specifies.

Power of Board

(3) In determining whether the substitute decision-maker complied with section 40, the Board may substitute its opinion for that of the substitute decision-maker.

Directions

(4) If the Board determines that the substitute decision-maker did not comply with section 40, it may give him or her directions and, in doing so, shall apply section 40.

Time for compliance

(5) The Board shall specify the time within which its directions must be complied with.

Deemed not authorized

P.G.T.

(7) If the substitute decision-maker is the Public Guardian and Trustee acting under subsection 18 (5), as it applies for the purpose of section 39, he or she shall comply with the Board's directions, and subsection (6) does not apply to him or her.

PART IV

PERSONAL ASSISTANCE PLANS

General

Application of Part

53. This Part applies to personal assistance plans in care facilities.

Meaning of "substitute decision-maker"

54. In this Part,

"substitute decision-maker" means a person who is authorized under section 56 to make a decision concerning a personal assistance plan on behalf of a resident who is incapable with respect to the plan.

Decision on Incapable Resident's Behalf

Decision on incapable resident's behalf

55. If a resident is found by an evaluator to be incapable with respect to his or her personal assistance plan, a decision concerning the plan may be made on the resident's behalf by his or her substitute decision-maker in accordance with this Act.

Determining who may make decision

56. Section 18 applies, with necessary modifications, for the purpose of determining who is authorized to make a decision concerning a personal assistance plan on behalf of a resident who is incapable with respect to the plan.

Principles for making decision

57. (1) A person who makes a decision on an incapable resident's behalf concerning his or her personal assistance plan shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the resident expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the resident expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the resident's best interests.

Best interests

(2) In deciding what the resident's best interests are, the person shall take into consideration,

(a) the values and beliefs that the person knows the resident held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the resident with respect to a personal assistance service that are not required to be followed under paragraph 1 of subsection (1); and

1. Whether the personal assistance services described in the personal assistance plan are likely to,

i. improve the quality of the resident's life,

ii. prevent the quality of the resident's life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the resident's life is likely to deteriorate.

2. Whether the quality of the resident's life is likely to improve, remain the same or deteriorate without the personal assistance services described in the personal assistance plan.

3. Whether the benefit the resident is expected to obtain from the personal assistance services described in the personal assistance plan outweighs the risk of harm to him or her.

4. Whether personal assistance services that are less restrictive or less intrusive would be as beneficial as those described in the personal assistance plan.

5. Whether the personal assistance plan seeks to foster the resident's independence.

Confinement, monitoring devices, restraint

(3) Subject to paragraph 1 of subsection (1), the person shall not give consent on the resident's behalf to the use of confinement, monitoring devices or means of restraint, unless the practice is essential to prevent serious bodily harm to the resident or to others, or allows the resident greater freedom or enjoyment.

Participation

(4) The person shall encourage the resident to participate, to the best of his or her abilities, in the person's decision concerning the personal assistance plan.

Information

58. Before making a decision on an incapable resident's behalf concerning his or her personal assistance plan, a substitute decision-maker is entitled to receive all the information required in order to make the decision.

Change of decision

59. Authority to make a decision on an incapable resident's behalf concerning his or her personal assistance plan includes authority to change the decision at any time.

Included consent

60. Unless it is not reasonable to do so in the circumstances, a person who provides a personal assistance service to a resident is entitled to presume that consent to a personal assistance service described in the resident's personal assistance plan includes consent to variations or adjustments in the service, if the nature and risks of the changed service are not significantly different from the nature and risks of the original service.

Protection from Liability

Personal assistance service provided

61. (1) If a person provides a personal assistance service to a resident in accordance with a decision concerning the resident's personal assistance plan that the person believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the person is not liable for providing the personal assistance service without consent.

Personal assistance service not provided

(2) If a person does not provide a personal assistance service to a resident because of a decision concerning the resident's personal assistance plan that the person believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the person is not liable for failing to provide the personal assistance service.

Reliance on assertion

(3) If a person who makes a decision concerning a personal assistance plan on an incapable resident's behalf asserts that he or she,

(a) is a person described in subsection 18 (1), as it applies for the purpose of section 56;

(b) meets the requirement of clause 18 (2) (b) or (c), as it applies for the purpose of section 56; or

a person who provides a personal assistance service to the resident is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances.

Person making decision on resident's behalf

62. A person who makes a decision on a resident's behalf concerning his or her personal assistance plan, acting in good faith and in accordance with this Act, is not liable for making the decision.

Applications to Board

Application for review of finding of incapacity

63. (1) A resident may apply to the Board for a review of an evaluator's finding that he or she is incapable with respect to his or her personal assistance plan.

Exception

(2) Subsection (1) does not apply to,

(a) a resident who has a guardian of the person, if the guardian has authority to make a decision concerning the resident's personal assistance plan;

(b) a resident who has an attorney for personal care, if the power of attorney contains a provision waiving the resident's right to apply for the review and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992.

Parties

(3) The parties to the application are:

1. The resident applying for the review.

2. The evaluator.

3. The member of the care facility's staff who is responsible for the personal assistance plan.

4. Any other person whom the Board specifies.

Subss. 30 (4) to (6) apply

(4) Subsections 30 (4) to (6) apply, with necessary modifications, to an application under this section.

Application for appointment of representative

64. (1) A resident who is incapable with respect to his or her personal assistance plan may apply to the Board for appointment of a representative to make decisions on his or her behalf concerning the plan.

Application by proposed representative

(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a resident who is incapable with respect to his or her personal assistance plan, to make decisions on behalf of the resident concerning the plan.

Exception

(3) Subsections (1) and (2) do not apply if the resident has a guardian of the person who has authority to make all decisions concerning the resident's personal assistance plan, or an attorney for personal care under a power of attorney conferring that authority.

Parties

(4) The parties to the application are:

1. The resident.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 18 (1), as it applies for the purpose of section 56.

4. The member of the care facility's staff who is responsible for the personal assistance plan.

5. Any other person whom the Board specifies.

Appointment

(5) In an appointment under this section, the Board may authorize the representative,

(a) to make decisions concerning the resident's personal assistance plan on a particular occasion or to make decisions concerning the resident's personal assistance plan at any time;

(b) to make a decision with respect to one or more personal assistance services specified by the Board, or to make a decision with respect to any personal assistance service described in the personal assistance plan.

Subss. 31 (6) to (8) apply

(6) Subsections 31 (6) to (8) apply, with necessary modifications, to an appointment under this section.

Application for directions

65. (1) A substitute decision-maker may apply to the Board for directions if the incapable resident expressed a wish with respect to a personal assistance service, but,

(a) the wish is not clear;

(b) it is not clear whether the wish is applicable to the circumstances;

(d) it is not clear whether the wish was expressed after the resident attained 16 years of age.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The resident.

3. The member of the care facility's staff who is responsible for the personal assistance plan.

4. Any other person whom the Board specifies.

Directions

(3) The Board may give the substitute decision-maker directions and, in doing so, shall apply section 57.

Application to depart from wishes

66. (1) If a substitute decision-maker is required by paragraph 1 of subsection 57 (1) to refuse consent to a personal assistance service described in the incapable resident's personal assistance plan, because of a wish expressed by the resident while capable and after attaining 16 years of age, the substitute decision-maker may apply to the Board for permission to consent to the personal assistance service despite the wish.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The resident.

3. The member of the care facility's staff who is responsible for the personal assistance plan.

4. Any other person whom the Board specifies.

Criteria for permission

(3) The Board may give the substitute decision-maker permission to consent to the personal assistance service despite the wish, if it is satisfied that the resident, if capable, would probably give consent because the likely result of the personal assistance service is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed.

Application to determine compliance with s. 57

67. (1) If a decision concerning a personal assistance plan is made on an incapable resident's behalf by his or her substitute decision-maker, and if the member of the care facility's staff who is responsible for the plan is of the opinion that the substitute decision-maker did not comply with section 57, the member of the care facility's staff who is responsible for the plan may apply to the Board for a determination as to whether the substitute decision-maker complied with section 57.

Parties

(2) The parties to the application are:

1. The member of the care facility's staff who is responsible for the personal assistance plan.

2. The resident.

3. The substitute decision-maker.

4. Any other person whom the Board specifies.

Power of Board

(3) In determining whether the substitute decision-maker complied with section 57, the Board may substitute its opinion for that of the substitute decision-maker.

Directions

(4) If the Board determines that the substitute decision-maker did not comply with section 57, it may give him or her directions and, in doing so, shall apply section 57.

Time for compliance

(5) The Board shall specify the time within which its directions must be complied with.

Deemed not authorized

(6) If the substitute decision-maker does not comply with the Board's directions within the time specified by the Board, he or she shall be deemed not to be authorized to make the decision concerning the personal assistance plan on the resident's behalf.

P.G.T.

(7) If the substitute decision-maker is the Public Guardian and Trustee acting under subsection 18 (5), as it applies for the purpose of section 56, he or she shall comply with the Board's directions, and subsection (6) does not apply to him or her.

PART V

CONSENT AND CAPACITY BOARD

Consent and Capacity Board

68. (1) The board known as the Consent and Capacity Review Board in English and as Commission de révision du consentement et de la capacité in French is continued under the name Consent and Capacity Board in English and Commission du consentement et de la capacité in French.

Composition

(2) The members of the Board shall be appointed by the Lieutenant Governor in Council.

Term and reappointment

(3) Each member of the Board shall hold office for a term of three years or less, as determined by the Lieutenant Governor in Council, and may be reappointed.

Remuneration and expenses

(4) The members of the Board shall be paid the remuneration fixed by the Lieutenant Governor in Council and the reasonable expenses incurred in the course of their duties under this Act.

Chair and vice-chairs

69. (1) The Lieutenant Governor in Council shall designate one of the members of the Board as chair and one or more others as vice-chairs.

Role of chair

(2) The chair is the chief executive officer of the Board.

Power to specify qualifications

(3) The chair may specify qualifications, for the purpose of clause 71 (2) (d), that must be met by members of the Board before they may be assigned to sit alone to deal with particular applications.

Role of vice-chair

(4) If the chair is unable to act as such for any reason, the vice-chair (if there are two or more vice-chairs, the one whom the chair designates to replace him or her or, in the absence of a designation, the one who was appointed to the Board first) shall act in the chair's place.

Same

(5) A vice-chair also has the powers and duties that the chair delegates to him or her in writing.

Staff

70. (1) Such employees as are necessary for the proper conduct of the Board's work may be appointed under the Public Service Act.

Government services and facilities

(2) The Board shall, if appropriate, use the services and facilities of a ministry or agency of the Government of Ontario.

Assignment of Board members to deal with applications

71. (1) The chair shall assign the members of the Board to sit alone or in panels of three or five members to deal with particular applications.

Qualifications of member sitting alone

(2) A member of the Board may be assigned to sit alone to deal with an application only if,

(a) throughout the two-year period immediately preceding the assignment, he or she has been a member of the Board or of the review board established by section 37 of the Mental Health Act, as it read before the day subsection 20 (23) of the Consent and Capacity Statute Law Amendment Act, 1992 came into force;

(b) he or she is a member of the Law Society of Upper Canada and has been a member of the Law Society ofUpper Canada throughout the ten-year period immediately preceding the assignment;

(c) in the case of an application for a review of a finding of incapacity, he or she has experience that, in the opinion of the chair, is relevant to adjudicating capacity; and

(d) he or she meets all of the other qualifications specified by the chair under subsection 69 (3).

Panel proceedings

(3) If a panel is assigned to deal with an application,

(a) the chair shall designate one member of the panel to preside over the hearing to be conducted by the panel in relation to the application; and

(b) a majority of the members of the panel constitutes a quorum.

Decision of Board

(4) If a member of the Board is assigned to sit alone to deal with an application, the decision of the member is the decision of the Board, and if a panel is assigned to deal with an application, the decision of a majority of the members of the panel is the decision of the Board.

Disqualification

72. (1) A member of the Board shall not take part in the hearing of a matter that concerns a person who is the member's patient or client or was the member's patient or client within the past five years.

Same

(2) A member of the Board who is an officer or employee of a hospital or other facility or has a direct financial interest in such a facility shall not take part in the hearing of a matter that concerns a person who is a patient of the facility or who resides in the facility.

Board to fix time and place of hearing

73. (1) When the Board receives an application, it shall promptly fix a time and place for a hearing.

Hearing to begin within seven days

(2) The hearing shall begin within seven days after the day the Board receives the application, unless the parties agree to a postponement.

Decision

(3) The Board shall render its decision and provide each party or the party's counsel or agent with a copy of the decision within one day after the end of the hearing.

Reasons

(4) The Board shall issue written reasons for its decision if any of the parties so requests and shall provide each party or the party's counsel or agent with a copy of the reasons within two business days after the Board receives the request.

Method of sending decision and reasons

(5) Despite subsection 18 (1) of the Statutory Powers Procedure Act, the Board shall send the copy of the decision and the copy of the reasons, if they have been requested,

(a) by electronic transmission;

(b) by telephone transmission of a facsimile; or

(c) by some other method that allows proof of receipt, in accordance with the tribunal's rules made under section 25.1 of the Statutory Powers Procedure Act.

Deemed day of receipt

(6) Despite subsection 18 (3) of the Statutory Powers Procedure Act, if the copy is sent by electronic transmission or by telephone transmission of a facsimile, it shall be deemed to be received on the day that it was sent, unless that day is a holiday, in which case the copy shall be deemed to be received on the next day that is not a holiday.

Exception

(7) If a party that acts in good faith does not, through absence, accident, illness or other cause beyond the party's control, receive the copy until a date that is later than the deemed day of receipt, the actual date of receipt governs.

Meaning of "business day"

(8) In subsection (4),

"business day" means any day other than Saturday or a holiday.

Examination of documents

74. (1) Before the hearing, the parties shall be given an opportunity to examine and copy any documentary evidence that will be produced and any report whose contents will be given in evidence.

Health record

(2) The party who is the subject of the treatment, the admission or the personal assistance plan, as the case may be, and his or her counsel or agent are entitled to examine and to copy, at their own expense, any medical or other health record prepared in respect of the party, subject to subsections 35 (6) and (7) of the Mental Health Act (withholding clinical record), subsections 33 (2), (3) and (4) of the Long-Term Care Act, 1994 (withholding personal record) and subsections 183 (2) to (6) of the Child and Family Services Act (withholding record of mental disorder).

Communication re subject-matter of hearing

75. (1) The member or members of the Board conducting a hearing shall not communicate about the subject-matter of the hearing directly or indirectly with any party, counsel, agent or other person, unless all the parties and their counsel or agents receive notice and have an opportunity to participate.

Exception

(2) However, the member or members of the Board conducting the hearing may seek advice from an adviser independent of the parties, and in that case the nature of the advice shall be communicated to all the parties and their counsel or agents so that they may make submissions as to the law.

Only members at hearing to participate in decision

76. No member of the Board shall participate in a decision unless he or she was present throughout the hearing and heard the parties' evidence and argument.

Release of evidence

77. (1) Within a reasonable time after the final disposition of the proceeding, documents and things put in evidence at the hearing shall, on request, be released to the person who produced them.

Return of original record

(2) If an original clinical record respecting a person's care or treatment was put in evidence, it shall be returned to the place from which it was obtained as soon as possible after the final disposition of the proceeding.

Appeal

78. (1) A party to a proceeding before the Board may appeal the Board's decision to the Ontario Court (General Division) on a question of law or fact or both.

Time for filing notice of appeal

(2) The appellant shall serve his or her notice of appeal on the other parties and shall file it with the court, with proof ofservice, within seven days after he or she receives the Board's decision.

Notice to Board

(3) The appellant shall give a copy of the notice of appeal to the Board.

Record

(4) On receipt of the copy of the notice of appeal, the Board shall promptly serve the parties with the record of the proceeding before the Board, including a transcript of the oral evidence given at the hearing, and shall promptly file the record and transcript, with proof of service, with the court.

Time for filing appellant's factum

(5) Within 14 days after being served with the record and transcript, the appellant shall serve his or her factum on the other parties and shall file it, with proof of service, with the court.

Time for filing respondent's factum

(6) Within 14 days after being served with the appellant's factum, the respondent shall serve his or her factum on the other parties and shall file it, with proof of service, with the court.

Extension of time

(7) The court may extend the time for filing the notice of appeal, the appellant's factum or the respondent's factum, even after the time has expired.

Early date for appeal

(8) The court shall fix for the hearing of the appeal the earliest date that is compatible with its just disposition.

Appeal on the record, exception

(9) The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.

Powers of court on appeal

(10) On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

Counsel for incapable person

79. (1) If a person who is or may be incapable with respect to a treatment, admission to a care facility or a personal assistance plan is a party to a proceeding before the Board and does not have legal representation,

(a) the Board may direct the Public Guardian and Trustee or the Children's Lawyer to arrange for legal representation to be provided for the person; and

(b) the person shall be deemed to have capacity to retain and instruct counsel.

Responsibility for legal fees

(2) If legal representation is provided for a person in accordance with clause (1) (a) and no certificate is issued under the Legal Aid Act in connection with the proceeding, the person is responsible for the legal fees.

Child in secure treatment program

(3) If a child who has been admitted to a secure treatment program under section 124 of the Child and Family Services Act is a party to a proceeding before the Board, the Children's Lawyer shall provide legal representation for the child unless the Children's Lawyer is satisfied that another person will provide legal representation for the child.

PART VI

MISCELLANEOUS

Offence: false assertion

80. (1) No person who gives or refuses consent to a treatment on an incapable person's behalf shall make an assertion referred to in subsection 27 (6), knowing that it is untrue.

Same

(2) No person who gives or refuses consent to admission to a care facility on an incapable person's behalf shall make an assertion referred to in subsection 46 (4), knowing that it is untrue.

Same

(3) No person who makes a decision concerning a personal assistance plan on an incapable resident's behalf shall make an assertion referred to in subsection 61 (3), knowing that it is untrue.

Penalty

(4) A person who contravenes subsection (1), (2) or (3) is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000.

Offence: misrepresentation of wishes

81. (1) No person shall knowingly misrepresent wishes someone has expressed with respect to treatment, admission to a care facility or a personal assistance service.

Penalty

(2) A person who contravenes subsection (1) is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000.

Offence: decision contrary to wishes

82. (1) A person who knowingly contravenes paragraph 1 of subsection 19 (1), paragraph 1 of subsection 40 (1) or paragraph 1 of subsection 57 (1) is guilty of an offence and is liable, on conviction, to a fine not exceeding $10,000.

Exception

(2) Subsection (1) does not apply if the person acts in accordance with permission given under section 34, 51 or 66 or in accordance with directions given under section 33, 35, 50, 52, 65 or 67.

Regulations

83. (1) The Lieutenant Governor in Council may make regulations,

(a) prescribing facilities as care facilities for the purpose of clause (d) of the definition of "care facility" in subsection 2 (1) and providing transitional rules for the application of the Act to such facilities;

(b) for the purpose of the definition of "evaluator" in subsection 2 (1), prescribing categories of persons as evaluators and prescribing the circumstances in which those persons or persons described in clause (a), (l), (m), (o), (p) or (q) of the definition of "health practitioner" in subsection 2 (1) may act as evaluators;

(c) prescribing categories of persons as health practitioners for the purpose of the definition of "health practitioner" in subsection 2 (1);

(d) prescribing things that do not constitute a personal assistance service for the purpose of the definition of "personal assistance service" in subsection 2 (1);

(e) prescribing things that do not constitute treatment for the purpose of the definition of "treatment" in subsection 2 (1);

(f) governing determinations by health practitioners of capacity with respect to treatment and governing determinations by evaluators of capacity with respect to admission to a care facility or a personal assistance plan;

(g) prescribing health facilities for the purpose of subsection 22 (1);

(h) governing the transfer of information between an evaluator and the person responsible for authorizing admissions to a care facility, or between an evaluator and the member of the staff of a care facility who is responsible for a personal assistance plan;

(i) governing the transfer of information that is relevant to the making of a decision under this Act concerning a treatment, admission to a care facility or a personal assistance plan, including regulating the disclosure of such information to the person who is the subject of the decision or to his or her substitute decision-maker and requiring or permitting the disclosure of such information with the consent of the person or his or her substitute decision-maker;

(j) prescribing forms for the purpose of this Act or the regulations.

Application

(2) A regulation may be general or specific in its application.

Conflict with Child and Family Services Act

84. (1) If a provision of this Act conflicts with a provision of the Child and Family Services Act, the provision of the Child and Family Services Act prevails.

Repeal

(2) Subsection (1) is repealed on the first anniversary of the day this Act comes into force.

Transition, treatment

85. (1) This Act applies to a treatment that is begun after the day this Act comes into force, even if a finding as to capacity was made or consent was given before that day.

Same

(2) This Act does not apply to a treatment that is begun on or before the day this Act comes into force.

Transition, admission

86. (1) This Act applies to the admission to a care facility of a person who is placed on the waiting list for the facility after the day this Act comes into force, even if a finding as to capacity was made or consent was given before that day.

Same

(2) This Act does not apply to the admission to a care facility of a person who is placed on the waiting list for the facility on or before the day this Act comes into force.

Application of section

(3) This section does not apply to a care facility described in clause (d) of the definition of "care facility" in subsection 2 (1).

Transition, section 17

87. Section 17 applies to an appeal commenced before the day this Act comes into force if, on the day this Act comes into force, the appeal has not been finally disposed of and an order authorizing administration of the treatment before the final disposition of the appeal has not been made.

Transition, section 30

88. (1) If, on the day this Act comes into force, an application commenced under section 28 of the Consent to Treatment Act, 1992 has not been finally disposed of,

(a) subsections 30 (3) and (4) of this Act apply to the application;

(b) subsection 30 (2) of this Act does not apply to the application; and

(c) subsection 28 (6) of the Consent to Treatment Act, 1992, as it read immediately before the day this Act comes into force, continues to apply to the application.

Same

(2) For the purpose of subsection 30 (5) of this Act, a final disposition of the following applications shall be deemed to be a final disposition of an application under section 30 of this Act:

1. An application commenced under section 28 of the Consent to Treatment Act, 1992 before the day this Act comes into force.

2. An application commenced under section 51 of the Mental Health Act before the day subsection 20 (40) of the Consent and Capacity Statute Law Amendment Act, 1992 came into force.

Transition, section 31

89. (1) If, on the day this Act comes into force, an application commenced under section 29 of the Consent to Treatment Act, 1992 has not been finally disposed of,

(a) subsections 31 (5) and (6) and clauses 31 (7) (a), (b) and (c) of this Act apply to the application;

(b) subsections 31 (3) and (4) of this Act do not apply to the application; and

(c) subsections 29 (3) and (7) of the Consent to Treatment Act, 1992, as they read immediately before the day this Act comes into force, continue to apply to the application.

Same

(2) Clause 31 (7) (d) and subsection 31 (8) of this Act apply to an appointment made pursuant to an application commenced under section 29 of the Consent to Treatment Act, 1992 before the day this Act comes into force.

Transition, section 32

90. (1) If, on the day this Act comes into force, an application commenced under section 32 of the Consent to Treatment Act, 1992 has not been finally disposed of,

(a) subsections 32 (3), (4), (5) and (6) of this Act apply to the application; and

(b) subsection 32 (2) of this Act does not apply to the application.

Same

(2) For the purpose of subsection 32 (7) of this Act, a final disposition of an application commenced under section 32 of the Consent to Treatment Act, 1992 before the day this Act comes into force shall be deemed to be a final disposition of an application under section 32 of this Act.

Transition, section 33

91. If, on the day this Act comes into force, an application commenced under section 30 of the Consent to Treatment Act, 1992 has not been finally disposed of, subsections 33 (2) and (3) of this Act apply to the application if it was commenced by a person who is a substitute decision-maker as defined in Part II of this Act.

Transition, section 34

92. If, on the day this Act comes into force, an application commenced under section 31 of the Consent to Treatment Act, 1992 has not been finally disposed of, subsections 34 (2) and (3) of this Act apply to the application if it was commenced by a person who is a substitute decision-maker as defined in Part II of this Act.

Short title

93. The short title of this Act is the Health Care Consent Act, 1995.