SUBSTITUTE DECISIONS ACT, 1992 / LOI DE 1992 SUR LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
CONTENTS
Thursday 3 September 1992
Substitute Decisions Act, 1992
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
*Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
*Wessenger, Paul (Simcoe Centre ND)
*Winninger, David (London South/-Sud ND)
Substitutions / Membres remplaçants:
*Brown, Michael A. (Algoma-Manitoulin L) for Mr Mahoney
*Cleary, John C. (Cornwall L) for Mr Curling
*Mammoliti, George (Yorkview ND) for Ms Carter
*Owens, Stephen (Scarborough Centre ND) for Ms Akande
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman
*In attendance / présents
Also taking part / Autres participants et participantes: Fram, Steve, counsel, policy development division, Ministry of the Attorney General
Winninger, David, parliamentary assistant to the Attorney General
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Filion, Sibylle, legislative counsel
Hopkins, Laura, legislative counsel
The committee met at 1018 in committee room 1.
SUBSTITUTE DECISIONS ACT, 1992 / LOI DE 1992 SUR LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
Consideration of Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. We'll be continuing our clause-by-clause examination of Bill 108. Mrs Sullivan, when you were interrupted last evening before we adjourned, you were making a statement. Would you care to proceed with that?
Mrs Barbara Sullivan (Halton Centre): Thank you, Mr Chairman. We had been cut off and I intend to put a motion forward as an amendment to the bill, which will in fact meet the point I was raising. That amendment will in fact indicate that section 17 of the bill should not come into force until a reference to the appeal court has been requested by the government to determine the constitutionality of that section and the appeal court has reported its decision in the matter.
I've decided to put this forward as an amendment because under the rules of this committee, even if it can't be considered in the discussion, it will be deemed moved and as a consequence will be part of the record relating to the committee, will be brought to the attention of the Legislature and hence the public. So that's the way I intend to proceed in that area.
The Chair: All right. As long as you have that in before September 15, that will be quite in order.
Mrs Sullivan: It will be there.
The Chair: Thank you very much. We'll now continue where we left off, on the Liberal motion 10(3) and (4). Sorry, that was withdrawn.
Okay, next we go to government reprint 10.1. Comments?
Mr Paul Wessenger (Simcoe Centre): I thought there might be some amendment to that.
Mrs Sullivan: Yes. It's coming, Mr Chair.
Mr Wessenger: So we should not deal with it until we --
The Chair: Okay. Just a moment.
Mrs Sullivan moves that subsections 10(1) and (2) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"Execution
"(1) A continuing power of attorney shall be executed in the presence of two witnesses in the manner described in subsection (4).
"Persons who shall not be witnesses
"(2) The following persons shall not be witnesses:
"1. The attorney or the attorney's spouse or partner.
"2. The grantor's spouse or partner.
"3. A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.
"4. A person whose property is under guardianship or who has a guardian of the person.
"5. A person who is less than eighteen years old."
Mrs Sullivan: This amendment really combines the amendment I put forward yesterday and Mr Sterling's amendment, which he put forward, and comes forward as a result of the discussion that ensued with respect to the amendments which we have put on the table on the question of who should qualify to be a witness.
The Chair: Could you withdraw your other motion on 10(2)?
Mrs Sullivan: I will withdraw the Liberal motion 10(2).
The Chair: Okay. All those in favour of the Liberal motion on subsections 10(1) and (2)? Opposed?
Motion agreed to.
The Chair: Okay, we'll go to the government reprint on 10(3), (4) and (5).
Mrs Sullivan: Mr Chairman, I think we are supposed to have an amendment to 10(4).
Mr Wessenger: I believe we passed that, didn't we?
Mrs Sullivan: Did we?
Mr Wessenger: And we deleted (3), if I remember correctly.
Mr Sterling: That's right.
Mr Wessenger: We should be just dealing with (4).
Mr David Winninger (London South): We passed 10(3).
Mr Norman W. Sterling (Carleton): We passed a motion to exclude the part contained on page 8 of the reprint, that is, the words, "and at the same time make a written statement in the prescribed form."
Mrs Sullivan: We haven't passed that.
Mr Sterling: Yes, we did.
Mrs Sullivan: Okay.
The Chair: Subsection 10(3) was passed.
Mr Winninger: Subsection 10(3) was voted on.
The Chair: And passed.
Mrs Sullivan: Sorry. I just didn't write it down.
Mr Winninger: The issue was whether 10(4) was passed in its amended form.
The Chair: Government reprint 10(5). Comments? Carried.
Government reprint 10.1. Discussion? Carried.
Next, government reprint, clause 11(1)(a). Carried.
Mr Sterling moves that subsection 11(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended and the following added:
"11(1)(c.2) unless the grantor provides that there shall be multiple continuing powers of attorney."
Mr Winninger: We're agreeing to that amendment, but there needs to be a slight change in the numbering. This is in accordance with the Canadian Bar Association recommendation, but we feel it should be clause 11(1)(c.1), because it's an addition to what is in our reprinted act as (c.1). There is no (c.2). That's all.
Mr Sterling: Yes, that's right. I will withdraw the previous motion.
I move that subsection 11(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended and the following added:
"11(1)(c.1) unless the grantor provides that there shall be multiple continuing powers of attorney."
Mr Winninger: That's acceptable. Could we stand it down while it's being rewritten?
Mr Sterling: Pourquoi?
Mr Winninger: Because legislative counsel just requested it.
Mr Sterling: She's got a copy of it right now.
Mr Winninger: Pourquoi pas?
Mr Sterling: It doesn't need a lot of discussion. There was a concern that the way section 11 was drafted, it would exclude multiple continuing powers of attorney, which means that a grantor would grant to two or three or four or more people the power of attorney. Often a parent does that with regard to his children, in case one child is unable or unwilling to act as the attorney. All this does is make it clear that it is possible to create a multiple continuing power of attorney. It's more a point of clarification than anything else, Mr Chairman.
The Chair: Thank you. Further discussion? Seeing none, all those in favour? Opposed? Carried.
Mr Sterling, could you read your last one into the record, please? Withdraw what you had and re-read.
Mr Sterling: I am asked to withdraw and I agree to withdraw.
The Chair: Mr Sterling moves that subsection 11(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended and the following added at the end:
"11(1)(c.1) unless the grantor provides that there shall be multiple continuing powers of attorney."
Motion agreed to.
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Mr Sterling: I have a difficult time, Mr Chairman, getting these motions straight.
The Chair: I can understand that. Nothing personal, of course.
Next we will go to the government reprint, in the French version, subsection 12(1). This is only in the French version. Discussion? All those in favour? Carried.
Next, the government reprint, section 14. We'll need unanimous consent to have this one moved. Government reprint 14. All those in favour? Opposed? Carried.
Next, the government reprint, subsections 17(3) and (3.1). Discussion? Carried.
Government reprint, subsection 17(4.1). Mr Sterling?
Mr Sterling: Can I just ask some questions in this whole area? We have an application being made. One of the amendments that were put forward by the Canadian Bar Association which I didn't include was the notion of whether it was an application or a notification to the official guardian or the public guardian and trustee. When a person has a continuing power of attorney, it was felt by the bar association that it's not an application in the sense that really, you're telling them that you have it.
The other part is, is there any kind of obligation on the public guardian and trustee to accept the application? How does he or she do that, and is there any kind of time limitation on them to do that?
Mr Winninger: Mr Chair, perhaps we could hear from counsel on that.
Mr Steve Fram: What we have is an application. Under the existing law, when somebody is certified under the Mental Health Act, in order to continue operating under the power of attorney, he presents a copy of the power of attorney to the public guardian and trustee.
In response to the Canadian Bar Association's first submission, we altered the provisions to essentially recreate the same type of process whereby the person applies to be a statutory guardian. Being a statutory guardian has certain advantages: He can prove it to third parties; third parties can't look behind it to the principle. Therefore, it's advantageous in terms of administering the property.
So we've got rid of all the requirements except that they apply, present a certified copy of the power of attorney under the provision. They're undertaking to act under it, which is the key important thing for the public guardian and trustee, because he wants to know that somebody is going to be acting. There are powers of attorney that exist, but a power of attorney by itself doesn't oblige the person who is the attorney to act, so this undertaking is given.
Then under clause 17(7)(b), the public guardian and trustee does not have any discretion but must issue a certificate. Then we get to subsection 17(7.1): "The certificate is proof of the guardian's authority." So the process approximates the existing process without giving discretion to the public guardian and trustee.
Mr Sterling: My greatest concern is the time factor. I'm thinking of an accident where the grantor of the power of attorney goes into a coma and the next day there's a requirement to close, say, a real estate transaction. The power of attorney is going to have to step in and sign the final paper. Is the power of attorney still good? Does he need the guardian's --
Mr Fram: There's a straightforward answer. In the case that you've posed, the attorney would continue to act. The only time this comes up at all is when there has been either certification under the Mental Health Act that somebody is incapable of managing his property or if there has been certification by an assessor, which would only be requested if there was a problem.
Most of the time, people will just rely on their attorney, as they do now, and there will not be any reason for the attorney to become a statutory guardian. In the case you've posed where somebody has a heart attack or is in a coma or is injured or is in hospital, if there is somebody to manage the property, nobody's going to go to the --
Mr Sterling: Somehow I had the impression it was obligatory and it's not. That's fine.
The Chair: Further discussion? Being none, we'll move to the vote. All those in favour? Carried.
We'll move on to the Liberal motion on subsection 17(5).
Mrs Sullivan moves that subsection 17(5) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "by an applicant described in subsection (2) or" in the first and second lines.
Mrs Sullivan: This amendment would delete the requirement that family members must provide evidence of security for the value of property in making an application for guardianship.
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Mr Winninger: We have a problem with that. These are people, named in subsection (2), who were never chosen by the incapable person. We feel under these circumstances that it's important that security be posted, but we are also mindful that subsection (6) permits a court to dispense with security.
That regime is similar to the one that prevails with an administrator of an estate, who is normally expected, even a family member or a friend, to post a bond, but that can be dispensed with depending on the circumstances. If you've got a $5,000 estate, you're not going to require a $1,000 premium for a bond, so it makes perfect sense, given subsection (6), to retain the section, as the government has done, and not to amend it as suggested in the Liberal motion.
Mrs Sullivan: I think it's an onerous duty on a spouse or a child who is seeking guardianship of a person who has been certified or where an assessor has indicated that there's an incapability. Accepting the guardianship as part of the family, and particularly I think of the spouse or child, already brings with it onerous duties with respect to the management of that property. In the spouse's case in particular, there already is a partnership, if you will, in terms of the assets under the Family Law Reform Act. That's clear.
I'm really quite concerned about an additional requirement that a spouse has to post a bond in relationship to the guardianship of an incapable spouse. Similarly, if a child is in the situation where quite onerous duties in terms of guardianship are being taken on with respect to an incapable parent, once again the obligation of posting a bond as evidence of security seems to me to be an unfair one.
Mr Wessenger: I'd just like some clarification. Under the Mental Incompetency Act at present, is there a requirement that a bond be posted?
Mr Winninger: I can answer that as well. There is a requirement, but it can be dispensed with.
Mr Wessenger: And it also can be dispensed with. So basically we're not changing the existing law.
Am I also correct that if the consent of all of the potential beneficiaries was obtained, the requirement of the bond would likely be dispensed with?
Mr Winninger: That's right.
Mr Wessenger: Okay.
Mr Winninger: I don't mind saying I had one case like that where a daughter became the committee of her aged mother who had Alzheimer's. In that case, it seemed onerous that the daughter should have to place a bond and pay insurance premiums on a bond, so that was waived, by the court, though.
Mrs Sullivan: How long does it take for a court to waive that obligation? In the interim period, does the bond not have to be posted?
Mr Winninger: In the present legislation, as part of the incompetency order appointing the committee, there will be a provision dispensing with the bond.
Mrs Sullivan: But these are different. Basically this says you must post the bond, and then the court may later, if applied to, relieve you from that bond. So in fact you have to go through the process of providing evidence of security, which means having the bond.
Mr Winninger: I think it is important to ensure that there's meaning to the accountability that has to be exercised, and if there are virtually unfettered powers over the property of the incapable person, there has to be some safeguard there in case decisions are made that might tend to dissipate the property. I think it should be the exception rather than the rule that a bond is dispensed with.
Mrs Sullivan: Is what is included here, then, precisely as it is in the Mental Incompetency Act? You've indicated, by example, that the requirement for security under that act is waived before the application, or while the application itself is being considered. In this case, it's a two-step process, according to this wording. You must have evidence of the security, which means that you must already have purchased the bond, and only latterly can the court waive that. That is not the case now, as I understand it.
Mr Winninger: Could I also say that this section does give latitude to the public guardian and trustee as to evidence that the applicant is able to provide security. It says "in a form...approved by the public guardian and trustee." Maybe I can let counsel speak to this as well.
Mr Fram: The provision does not give the public guardian and trustee the ability to choose whether or not there should be security. So the rule is security unless the court waives it, because in fact giving that kind of discretion to the public guardian and trustee is administratively unwise. He then has to choose between the people he can trust and the persons he can't, and that is a very difficult role, a kind of choice that we usually reserve to the court.
Under the Mental Incompetency Act -- this process dispenses with the need to prove that the person is incapable. It's really an application to dispense with security, that part of the application itself. As pointed out, it isn't someone who's taking over the management of property and who has been chosen by the person -- they don't have to pose security. It's only as a result of this list that we put in the legislation that this takes place, and that the person himself or herself never chose to have an attorney.
So it was felt quite important to put in that provision, because, after all, it's the welfare of the person who is incapable that we're really concerned about, primarily.
Mr Sterling: Could I just ask sort of a supplementary question on this? If we can avoid making the process more complicated from both points of view -- that is, for members of the family and for the public guardian and trustee -- was there any consideration in this to putting some kind of minimal-upset limit? I think a lot of the people we would be talking about here would have very few assets. Therefore, would it be or has it been considered that no security would be necessary if the total assets were less than $3,000?
Mr Winninger: Mr Chair, I'd like a moment to confer with counsel here, but I would think that the amount of assets is entirely independent of whether a person is incapable or not. Someone with Alzheimer's, for example, could have spent a whole lifetime amassing assets.
Mr Sterling: No, no. Then, I think, security is important.
Mr Winninger: Right.
Mr Sterling: But what I'm saying is that, for instance, when we talked about the people with schizophrenia, many of them, from the evidence we heard here or from the parents of those people -- we heard about people who were on the street, not that great. I guess what I'm saying is, by putting an upset limit there, be it $3,000 or whatever, the gamble isn't that great.
Mr Winninger: Could I confer with counsel for a minute? It's a matter of interpretation.
Mr Wessenger: Before you do, I think we should stand this down. Maybe we need a recess to look at the matter, because I'm concerned about the multiplicity of proceedings, and maybe a simple amendment could still keep the intent of the legislation. So if we could just have a five-minute recess.
The Chair: This committee will have a five-minute recess.
The committee recessed at 1053.
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The Chair: I call this committee back to order. It's my understanding that they're getting a redraft right now, so with unanimous consent we'll stand down the Liberal motion on 17(5). Agreed? Agreed.
We now go to the government reprint on 17(7.1). Comments?
Mr Sterling: I have an amendment that I want to put forward to 17(7). I haven't got it copied yet, but I can read it.
The Chair: Mr Sterling moves that section 17 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"17(7.2) The public guardian and trustee shall either give or refuse a certificate appointing the applicant as the incapable person's statutory guardian of property under clause 17(7)(b) within 30 days after receiving the attorney's application unless there is some question as to the grantor's capacity."
Perhaps we can get a copy of that.
Mr Winninger: We'd like to consider that amendment and ask that it be stood down.
Mr Sterling: Fine. I agree.
The Chair: Do we have unanimous consent? Agreed.
Mr Wessenger: Do we need to stand down the rest or not? Does it have any effect on 17(7) or (7.1)?
The Chair: I don't believe so. We go to government reprint, subsection 17(9). Comments? Carried.
Government reprint, subsection 24(2).
Mr Winninger: We deleted there.
The Chair: Carried? Carried.
Government reprint, subsections 24(3.1) and (3.2). Carried? Carried.
Mr Sterling: How come you guys always follow what happens up here?
Mr Winninger: Half the time I'm following.
The Chair: Next will be the government reprint, subsection 27(10). Comments?
Mrs Sullivan: Could I ask a question about section 26, just for clarification? I know it's not in the order, but could counsel tell us -- the section reads, "The court may, on any person's application, vary an order appointing a guardian of property or substitute another person as guardian." What are the limits on "any person"? Are there any limits?
Mr Fram: There are no limits. Any person can apply to vary the order. Whether the court will grant it will really depend on cause being shown for the variation.
Mrs Sullivan: Is that the practice now? I had thought of putting an amendment forward, and I frankly didn't know enough about what the current practice is, but "any person's application" to vary an order seems to me to be extremely broad. Does it have to be that broad?
Mr Winninger: I don't see why you'd want to limit it. There may be people in the person's, I guess, constellation who may have an interest or concern and seek to vary. What would be the advantage of limiting it?
Mrs Sullivan: I suppose frivolous applications.
Mr Winninger: The court always reserves jurisdiction to deal with frivolous applications, frivolous and vexatious proceedings.
Mrs Sullivan: I just wanted that clarification. I was concerned that it was pretty broad. Thank you.
The Chair: All right. Government reprint, subsection 27(10). Carried? Carried.
Government reprint, subsection 31(1.1) and (2). Discussion? Carried.
Next is a PC motion, subsections 32(3) and 32(3.1).
Mr Sterling moves that subsections 32(3) and 32(3.1) of the bill, as reprinted to show the amendments proposed by the Attorney General be deleted, and replaced with the following:
"32(3) A guardian shall consult from time to time, with the incapable person on decisions about the property."
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Mr Sterling: This results from the Canadian Bar Association's brief and also, I guess, to some degree from some personal experience I had when practising law and dealing with attorneys and people who are assisting in taking care of property.
The government's legislation as it now stands, I think, would be satisfactory if we were thinking about a guardian of property who was a close member of the family, a close friend etc, where there would be a natural instinct to be in contact with the incapable person. But in a lot of cases it doesn't work that way and the power of attorney for property is someone who is a professional manager of investments, of money, of property, of real estate etc, and in some cases, I guess, you're dealing with a larger amount of property which the guardian would be taking care of or making daily decisions about that person's property. I just wondered if the costs that are associated with being the attorney would escalate too quickly if we make the burden and terms of consultation too great.
I realize there's another side to this story too in acting as adviser to various kinds of people. I do understand that the consultation with an incapable person is important as well. But I just thought the idea of throwing the guardian in the position of, as I read it, almost having to deal with not only all of the decisions the guardian might be making on behalf of the person, but also this other part about fostering contact between the family and the incapable person, particularly when you're talking about a trust officer in a large operation, or somewhat remote from where the incapable person might be, is perhaps a burden which is too great, so I put that forward. I'm interested in hearing other people comment on it.
Mr Winninger: I think we have to be quite clear why these subsections 32(3) and 32(3.1) are in here. In the past, there's been considerable criticism that guardians have been too remote from the incapable people whom they're making decisions on behalf of.
I think you have to apply a reasonable test here. If the guardian, whether it's a big institution or an individual person, is making a routine bank transfer to pay for a utility or realty tax or something like that, I don't think that guardian is obliged under this section to go to the incapable person every time an administrative, routine decision is being made. On the other hand, it does place a responsibility incumbent upon the guardian to meet from time to time with the incapable person and allow that incapable person, to the best of his or her abilities, to participate.
I might add that subsection 32(3.1) actually fosters dialogue with supportive family members as well, and I'd be surprised that Mr Sterling would seek to reduce that dialogue with family members.
Mr Sterling: Hey, I'm not saying I'm seeking to -- come on, now. That's taking a bit of liberty with what I said.
Mr Winninger: You're seeking to delete subsection 32(3.1), which makes reference to family members as well.
Mr Sterling: I'm saying the obligation of the guardian to put these people together is perhaps unreasonable.
Mr Winninger: Okay. Lastly, I know that large institutions like Canada Trust delegate their powers to their trust and estate officers and what have you, and I know from some experience that there is a personal relationship that often develops --
Mr Sterling: Oh, there is.
Mr Winninger: -- between the trust officer and the individual whose trust is being administered, so I don't see that as being unduly problematic. I would like to see these subsections remain in there and therefore we will be opposing the PC motion.
Mrs Sullivan: I'm concerned about the deletion that's included in this amendment of the subsections that are there. I think, however, the point Mr Sterling raised about the duty to consult from time to time, in the instances that he raises it, is a good point. On occasion, there is no consultation; there's simply a continuing operation. While subsection 32(3) provides an obligation of the guardian to encourage the person to participate to the best of his or her abilities and decisions, it doesn't require the consultation from time to time. I am concerned about the proposal to delete the other sections.
Mr Sterling: Mr Chairman, I withdraw the motion.
The Chair: We'll now go to the government reprint, subsections 32(3.1), 32(3.2) and 32(3.3). Agreed? Agreed.
Next is a PC motion on subsection 34(2).
Mr Sterling moves that subsection 34(2) of the bill, as reprinted to show the amendments proposed by the Attorney General, be deleted.
Mr Sterling: Subsection 34(2), as it now reads, says, "The guardian has power to complete a transaction that the guardian entered into before the incapable person's death or the termination of the guardianship."
I think there shouldn't be a mixture between the guardian's power to act on behalf of a person or a person's estate after he or she has died and the executor who would take over from the exact time of death or the termination of the guardian. The executor has to honour the commitments made by the previous guardian, and that is well understood, or the succeeding guardian would have to be responsible for the past guardian's commitments and obligations and contractual rights. I'm not quite sure of the reasoning behind this section, but I think it really muddies the legal situation in dealing with property rather than providing any clarification.
Mr Winninger: I don't mean to sound cagey about this, but the motion and the amendment do have appeal to me, but we need to stand it down to check on a few considerations.
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Mr Wessenger: I would like to make a comment from the other point of view, if I could, before we stand it down. I'd just like to make the comment that I think this amendment is in here to assist in the completion of transactions. As you know, under the existing law you have to have an executor and administrator appointed in the case of the death of a person who has a power of attorney. That's the existing law and I think the purpose of this was to assist the completion of a transaction.
There could be an occasion when it would be in the estate's interest to complete the transaction. In other words, you could have a purchaser trying to get out of a deal -- or a vendor, but particularly a purchaser -- and this would give him the right to walk if we didn't have this provision in. So I can see the advantage of having the provision with respect to death.
Mr Winninger: Mr Chair, we can consider both the submissions of Mr Wessenger and Mr Sterling if we're given the opportunity to stand this down.
Mr Wessenger: Yes, I'm happy now to have it stood down.
Mr Sterling: Could I just say in response that that is the case with capable people. In other words, if a capable person had entered into a contract and died, his estate faces the same problem with regard to that.
The big problem I see is, when has a transaction started and when has it completed? If you permit a guardian to control part of a deceased's estate past the date of death, he may, if mischievous, claim that he's in the middle of a whole bunch of negotiations dealing with property asset A, D, M, N, L and P and that the executor can take over the other parts of the estate.
I think it's better if you have a clear demarcation. Lawyers and executors have dealt for centuries with the problem of death occurring in an untimely way with transactions that are in place, and there are ways of passing letters probate relatively quickly in order to obtain the necessary authorization.
Mr Wessenger: If I might respond, it might help to have some clarification as to whether we've changed the law with respect to a power of attorney for a capable person in this regard, because I think there should be consistency. I would agree with you; I think there should be consistency in both situations.
Mr Sterling: I don't think there is anything there for a capable person.
Mr Stephen Owens (Scarborough Centre): Just a quick question to Mr Winninger. In terms of the sentence that talks about the termination of the guardianship, is it prudent to maybe put some thought into the nature of the termination, as to whether you would want that person to have the ability to complete the transaction involved, as it may be the transaction that has caused the other termination?
Mr Winninger: Just to give you a premonition of the direction of our thinking on this amendment, we may be able to sever situations of death from situations of termination of guardianship. I think Mr Sterling makes some very persuasive comments where you have a death occurring, and at that point in time either the administrator or the executor is clothed with authority. If, on the other hand, you have a termination of guardianship, you do need some continuity. If in fact no other guardian has been appointed as a substitute, then you need to be able to allow the existing guardian, whose guardianship has been terminated, to fulfil certain decisions that were undertaken prior to termination. Do you understand? I'm cognizant of your concern.
Mr Owens: I understand clearly what you're saying. I guess my concern again is, if the transaction or issue at hand is the cause of the termination, then how does one protect the person whose wishes have been countermanded or a transaction that's not prudent or in the best interests of the individual?
Mr Winninger: That's a legitimate point and we'll look at that too in redrafting the section.
Mr Owens: Thanks.
The Chair: Do we have unanimous consent to stand this one down? Agreed? Thank you.
It seems the committee has a small procedural problem. I'll let the clerk explain it to everybody.
Clerk of the Committee (Ms Lisa Freedman): I just want to interrupt now so that if there's a need to go to the House leaders, I can get some direction from the committee.
The order of the House from the House leaders requires all amendments to be filed with the clerk by 4 pm on September 15. We do not start Bill 110 until September 16, which means technically, according to the order of the House, I would have to have all Bill 110 amendments by September 15 at 4 o'clock and there would be no opportunity in committee to change any of those amendments whatsoever.
The House leaders do have the authority to change this order of the House. One suggestion may be that in keeping with the spirit of the order of the House, we ask the House leaders to change it to read that all amendments on Bills 74, 108 and 109 be filed with the clerk by September 15 at 4, and Bill 110 amendments be allowed up till 4 o'clock on September 16. I'm looking for direction from the committee.
Mr Sterling: Why do we need any limitation at all on when amendments can be put forward?
The Chair: Order of the House.
Mr Sterling: No. I know that, but what if we sit past 4 o'clock -- if everybody sitting around here says, "We've got three more sections to deal with. Let's deal with them," or whatever it is, and then get retroactive, and somebody comes up with a change of a word? I don't know what their intention was with regard to that. Maybe it was to give us notice of the government's intention in terms of amendments.
Clerk of the Committee: As it stands now, we're stuck with the order of the House. That's why I said I'm looking for direction from the committee. If the committee just wants me to point out the problem to the House leaders and see what the House leaders can work out so that some flexibility is allowed on the 16th, whatever the committee wants, I can pass that on to the House leaders.
Mr Sterling: I would like the ability of anyone to introduce an amendment until we complete matters in committee on these four bills.
Clerk of the Committee: So you're looking for the ability to introduce amendments right up until 4 o'clock on the 16th, when we place all amendments.
Mr Sterling: Yes.
Mrs Sullivan: It seems to me that if the House leaders have the authority under the order from the House to alter the time, it should be altered for all of the bills and not simply for 110.
Mr Winninger: I think we should leave that to negotiations between the House leaders. There may be reasons why the first three bills should have amendments filed on a different date than Bill 110. There may be technical reasons.
Mr Jim Wilson (Simcoe West): There are no technical reasons. This was a political decision made by Dave Cooke to impose these restrictions on us. We need as much flexibility as possible right up till the last minute, and that's the direction the House leaders should be given.
Mr Winninger: I'm sorry, Mr Chair, but --
Mr Owens: We were having a good day up to this point.
Mr Jim Wilson: I don't care if you were having a good day. You closed down these hearings last night at 6 o'clock.
Mr Winninger: -- Mr Wilson interrupted me. I did have the floor.
Interjections.
The Chair: Mr Winninger still has the floor.
Mr Winninger: I'm sorry, but Mr Wilson has a short memory. He and his colleague walked out when we were prepared to sit last Tuesday night -- just walked out of the committee proceedings -- so I think it's rather --
The Chair: Order, please, on the discussion.
Mr Jim Wilson: On a point of privilege, Mr Chair: I'm not letting Mr Winninger get away with that comment. We stayed here till 10 o'clock at night. The committee was clearly bogged down, and you people recessed 20 minutes later. I think the record is clear.
The Chair: Thank you, Mr Wilson. That is not a point of privilege. Mr Winninger, continue.
Mr Winninger: I think this is a matter that should be left to negotiations between the House leaders. I don't know that we should be extending specific dates for the filing of amendments on Bills 74, 108 and 109 at this stage. I prefer the latter option, that the clerk will approach the House leaders, make them aware of the problem, and deal with it accordingly.
The Chair: Thank you, Mr Winninger. Hansard on this discussion will be passed on to the House leaders, and they will determine the appropriate action.
Mrs Sullivan: We recognize that all of these bills are interrelated. If amendments are put to 110, in fact there may be a requirement for amendments to some of the other bills. It's illogical not to keep all of the bills open so that amendments can be put until the very end.
Had 110, under the schedule, been before the committee prior to the time that all amendments were to be filed, all amendments relating to all of the bills would have been filed at the same time and all of those bills would be open before the committee. What's occurring now is that when indeed there might have to be companion amendments to other bills, those amendments would be simply left out, and indeed the legislation, such as Bill 108, may in certain sections be unworkable.
I think the House leaders will have to understand the intense interrelationship between all of these bills and that Bill 110 is an important part of that interrelationship and that there is a back and forth between Bill 110 and all of Bills 108, 109, 74 and other pieces of legislation.
The Chair: Thank you, Ms Sullivan. Maybe it would be very worthwhile for each of the caucuses to talk to their House leaders on this, but you're quite correct in what you've just said. Agreed? Okay.
Back to the clause-by-clause: We need unanimous consent on the government reprint on section 37. Agreed? Carried.
We need unanimous consent on the government reprint on section 38. Agreed.
On PC motion, paragraph 39(4)1.
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Mr Sterling: If members would look not in the original ones, but there's one that has been amended since that time and is scratched in pen by legislative counsel.
The Chair: Mr Sterling moves that paragraph 1 of subsection 39(4) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "more than" in the second line.
Comments?
Mr Sterling: Under the present section, the idea here is to give the guardian of the property some opportunity, under subsection 39(3), to make gifts or loans and charitable gifts to a person's friends and relatives, and then it instructs the guardian as to what he or she must have in order to be able to do that; in other words, to make certain that there's enough money left to take care of the person whom the guardian is responsible for.
The present section puts a test in front of the guardian. It says that in order to either give a gift or a loan to the person's friends or relatives or make a charitable donation, the guardian may only do that if the property is and will remain more than sufficient to satisfy the requirements of subsection 39(1). So it puts a very high test on the guardian to have not only adequate funds to take care of the person for the rest of his or her life but to have "more than," and nobody knows what "more than" is.
I just thought that taking out the words "more than" would give the guardian a real flexibility to do these two things in subsection 39(3) if he thought it was probably what the person he's taking care of would want to have done.
If, for instance, during his lifetime the person had given to his or her church a sum of $1,000 or $2,000 in his annual gift offerings to the church and it was the guardian's opinion that there was a sufficient income to take care of that person for the rest of his or her life, he would continue to do that kind of thing. But when you put in the words "more than," in my view it puts too high a test and the guardian might feel reluctant to do that kind of thing.
Mr Winninger: We agree with that amendment.
The Chair: Further comments?
Motion agreed to.
The Chair: On the government reprint paragraphs 39(4)2 to 6? Agreed? Carried.
Government reprint subsection 39(5)? Agreed? Carried.
Mr Sterling: I had a motion I was going to move on section 39.1, but it depends to some degree what happens to subsection 34(2), which has been stood down, so I would ask that our consideration of section 39.1 be stood down as well.
The Chair: Agreed? Agreed.
Government reprint subsection 41(1). Agreed? Carried.
Government reprint subsection 41(3). Agreed? Carried.
Government reprint subsection 41(4). Agreed? Carried.
Government reprint subsection 42(1.1). Agreed? Carried.
PC motion on subsection 47(2.3)?
Mrs Sullivan: Could I ask a question about subsection 42(2)? It's really to understand what current practice is.
The guardian under this section is required to give a copy of the financial statement to the person, the guardian of the person or the attorney for personal care. There's no obligation for family people to obtain that financial statement. I'm thinking if, by example, the spouse is not the guardian or if the parent is not the guardian, how can judgements be made by other people who are close to the person and who have an interest in the person's welfare as to whether the guardian is in fact dealing with the financial matters of the person in an appropriate way?
I'm asking the question because I don't know what the current practice is, but a judgement with respect to the suitability of the decisions being made by the guardian to perhaps put an application forward to replace the guardian would be very difficult when another person will not have access to the information on which that application could be put forward.
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Mr Winninger: I hate to make you put the question twice, but I think that's a question counsel is probably better equipped to answer and I would ask when he returns that we revisit that issue.
Mrs Sullivan: Okay. We'll do that -- subsection 42(2).
The Chair: PC motion, subsection 47(2.3).
Mr Sterling: Is there a government motion that really comes in front of mine?
The Chair: That's a reprint.
Mr Sterling: I've got 47.1(1) -- okay, that comes next. I'm sorry.
The Chair: Mr Sterling moves that subsection 47(2.3) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by removing the word "shall" and replacing it with the following: "are authorized to act."
Mr Sterling: This is on page 23 of the reprinted bill, if you're trying to find it.
This seems to place an absolute obligation upon the remaining attorneys in a multiple power of attorney to act, or an alternative attorney. Often a person will put in there, when they put a multiple power of attorney, "I ask my spouse or I authorize my spouse to act on my behalf, but if she is unable or unwilling to act, then I appoint my sons, Peter and John, to act." It may be that Peter and John are unable or unwilling to act. This seems to say they have to act, and therefore I'm just saying they are authorized to act rather than they shall act. It's really wording as much as anything, but I think it's more accurate as to what happens.
Mr Winninger: We agree with the amendment in principle and you've got the replacement wording correct, "are authorized to act," but there's an additional word after "shall," the word "continue." That has to come out as well.
Mr Wessenger: May I just make a suggestion here? Why couldn't you just replace "shall" with "may," and then you wouldn't have to --
Mr Winninger: There was some discussion about this earlier. Perhaps counsel who drafted the original section can assist with this.
Mr Sterling: I would like to withdraw my motion, Mr Chairman.
The Chair: You have withdrawn the original and you move this one now.
Mr Sterling: Yes.
The Chair: Mr Sterling moves that subsection 47(2.3) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by removing the words "shall continue" and replacing them with the following: "are authorized to act."
Mr Winninger: That would be acceptable.
Motion agreed to.
The Chair: On the government reprint, subsections 47(2.1) to 47(2.3), as amended. Agreed? Carried.
On the government reprint, subsections 47(6) and 47(7).
Mr Winninger: It's a deletion.
The Chair: Agreed? Carried.
On the government reprint, subsections 47(9) and 47(9.1) Agreed? Carried.
On the government motion on subsection 47.1(1).
Mr Winninger: There's a Liberal motion.
Mrs Sullivan: On a point of order, Mr Chairman: I want to be sure we were dealing with these amendments separately, because I think it's clear that the government is also concerned about the test of capacity for giving personal care, as we have been, and I shall read my amendment into the motion.
The Chair: Mrs Sullivan moves that subsection 47.1(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"Capacity to give power of attorney for personal care
"(1) A person is capable of giving a power of attorney for personal care if he or she understands:
"(a) that the attorney will be able to do, on the person's behalf, anything in respect of the person's personal care that the person could do, if capable, subject to such conditions and restrictions as may be set out in the power of attorney;
"(b) that the attorney is required to make decisions in accordance with the wishes expressed or instructions given by the person while capable, or in the absence of such wishes or instructions, in accordance with the best interests of the person;
"(c) that the attorney will encourage the person to participate, to the best of the person's abilities, in making decisions with respect to his or her personal care;
"(d) that the attorney must account for decisions made with respect to the person's personal care;
"(e) that he or she, if capable, may revoke the power of attorney for personal care;
"(f) whether the proposed attorney has a genuine concern for the person's welfare; and
"(g) the nature and effect, including the likely consequences, of a decision to execute or revoke a power of attorney for personal care."
Mrs Sullivan: In putting together this amendment we've tried to look at various scenarios in relation to the capacity for understanding what an attorney will be able to do, for understanding the obligations of the attorney that the person is making.
I've thought about the nature of this kind of test on a person who is partially incapable, I suppose. I'm thinking of a developmentally disabled person. I think everything that is included in this section or that I have included in my amendment would be a reasonable test for someone who is, by example, developmentally disabled. The obligation or the assumption as well is that if the person has the capacity to consent, these issues will be put before the person as well in determining that capacity.
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I note that the government's amendment is less demanding. It seems to me that a person who is providing a power should also understand that he will be participating in decisions, when possible, along with the attorney and that the attorney does have a requirement to be accountable for the decisions. I think that those tests of capacity, of the understanding of not only the obligations of the attorney but the obligations and the rights of the person himself, are part of a really important test of capacity.
I think as well that it almost parallels the tests of capacity for selecting a power for property care, and I think this is a good amendment.
Mr Winninger: As you know, we have different criteria for the selection of an attorney for property versus personal care, just starting with age. But I think the important point to remember here is that we're trying to keep the test of capacity to appoint an attorney as simple and as comprehensible as possible -- namely, the appreciation that the proposed attorney has a genuine concern and that the person may need to have the proposed attorney make decisions for the person.
What you've set out here with all these criteria in the Liberal amendment seems to be a very tall order: to demand capacity to understand all these responsibilities and duties for the attorney, which are, I might add, already set out under the "duties and obligations" section later on in the bill. These are the duties and obligations of attorneys for personal care, for which they're held accountable. To ask that the vulnerable person understand all these complex duties and obligations I think is well beyond the need that we need to ascertain capacity to appoint an attorney for personal care. I think you've gone in the opposite direction from the direction the government is going in: to empower individuals to appoint their own attorney and thereby have a decision-maker preference.
Mr Sterling: I reluctantly must agree with the government on this point -- not reluctantly; it's getting near lunchtime, I guess. At any rate, the concern I have is that, overall, the thrust I have tried to maintain in terms of doing all this is to make it as simple as possible. I understand what Ms Sullivan is doing here in terms of trying to ensure the wishes of the incapable person and that he or she is fully consulted and that kind of thing, but it also leads to another problem if the qualifications as to the understanding of the grantor of the power of attorney for personal care are increased substantially. Then you always open the problem of attack. If you give a lawyer or an advocate or somebody who is making mischief seven sections to attack, then he might be able to say to the attorney, "Can you remember whether or not you advised the person on all the ways that he could terminate a power of attorney for personal care?" etc. I don't think those attacks are going to come very often but they will come, and I think we're better off with the two sections that have been proposed on the government motion. I hope you understand my concern.
Mrs Sullivan: I think it's probably valuable for me to withdraw this motion. The intent of it was really to ensure that, in determining that a person was capable, we were also ensuring that the person was informed. This was my approach to that obligation, and I don't know that it's anywhere else in the bill.
Mr Winninger: I might add that when there is an application to validate a power of attorney, that does trigger the advocate also to explain the implications of that substitute decision-making.
The Chair: So you withdraw, Mrs Sullivan?
Mrs Sullivan: Yes, I do. I also have a second amendment, subsection 47.1(1.1).
Mr Sterling: On a point of order, Mr Chairman: Should we not deal with the government motion. It's on the floor, is it not?
The Chair: Yes, and being as we're past 12 o'clock, I was thinking of recessing for lunch.
Mr Sterling: Why would we not carry that motion now?
Mr Winninger: I'd be pleased to.
Mrs Sullivan: Just a minute. My motion is on that exact section, isn't it?
The Chair: No, it's on the section just after.
Mrs Sullivan: Sorry. I apologize.
The Chair: So, the government on subsection 47.1(1).
Interjection: Carried.
The Chair: Could we have it moved first, please?
Mr Winninger moves that subsection 47.1(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"Capacity to give power of attorney for personal care
"(1) A person is capable of giving a power of attorney for personal care if the person,
"(a) has the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; and
"(b) appreciates that the person may need to have the proposed attorney make decisions for the person."
Motion agreed to.
The Chair: Mrs Sullivan moves that section 47.1 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"Validity
"(1.1) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care."
Mrs Sullivan: I think this is an important amendment. I'm told by counsel that it is perhaps not necessary in that it would be implied. I believe, in fact, that it is needed in the bill. There already is confusion in the bill. If you look at clause 50(6)(b), where I will also have an amendment to put forward, it's very clear there's already confusion in this area. I believe it's an important amendment to include to ensure there is no confusion at all.
Mr Sterling: I think it's a good addition to the bill as well. If anything, even if some might argue that it's not necessary, we're going to try to have these kinds of attorneys made in absence of lawyers who might argue that, and I think it's good for clarification of the general public to know that this is not a necessary requirement in order for an incapable person to sign such a power of attorney.
Mr Winninger: We feel it's a useful amendment and it gives equivalency to subsection 9(1), which is the exact reciprocal section under "property" that this is under "personal care."
Motion agreed to.
The Chair: This committee will now stand recessed until 2 pm this afternoon -- promptly, please.
The committee recessed at 1211.
AFTERNOON SITTING
The committee resumed at 1414.
The Chair: We'll now go to the government reprint on subsection 48(1). Comments?
Mr Winninger: I note that subsection 48(1) makes reference to subsection 48(3). Since there's a Liberal motion and a PC motion affecting subsection 48(3), we need to deal with that first.
The Chair: Okay. We'll stand down subsection 48(1) and go to the PC motion on subsection 48(2).
Mr Winninger: It's on subsection 48(3) and subsection 48(4).
The Chair: No, subsection 48(2) first. Mr Sterling.
Mr Sterling: Which one are we doing now?
The Chair: We're going to stand down subsection 48(1) until we do subsections 48(2) and (3).
Mr Sterling: Do I have an amendment on subsection 48(2)?
The Chair: Yes, you do.
Mr Sterling: Is it a new one that I've got?
Mrs Sullivan: Neither of us have it.
Mr Sterling: Oh, I see one, yes. I haven't submitted it. It had more to do with my amendment to subsection 10(2), if that had passed, so it really has no bearing at this time.
On subsection 48(2), now that we have changed subsection 10(2), I hope members of the committee are cognizant that the same requirements for witnesses for power of attorney for personal care are in place as for property. I'm satisfied myself, so I'm not going to put forward an amendment on subsection 48(2).
The Chair: Okay, we move to the Liberal motion on subsection 48(3).
Mrs Sullivan moves that subsection 48(3) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out.
Mrs Sullivan: The rationale in this instance is exactly as it was in the earlier case. A witness ought not to be making an assessment of the capacity of the person who is involved in providing a power of attorney.
Mr Winninger: We accept that amendment.
Motion agreed to.
The Chair: We now have a government amendment.
Mr Winninger: Could we just have a moment here to consult about these various amendments?
Mr Sterling: In the notices of amendments, I had put subsections 48(3) and (4), but since Ms Sullivan's motion to delete subsection 48(3) has already carried, I have a motion to amend subsection 48(4). Do you want me to put that motion now, Mr Chairman?
The Chair: Please.
Mr Sterling: I move that subsection 48(4) of the bill, as reprinted to show the amendments proposed by the Attorney General, be deleted, with the following being inserted:
"48(4) Each witness shall, if the witness has no reason to believe that the grantor is incapable of giving a continuing power of attorney or making decisions in respect of which instructions are contained in the power of attorney, sign the power of attorney as witness."
Mr Winninger: In principle, that amendment is acceptable, but there's still a problem with the reference to "continuing power of attorney" in the amendment that Mr Sterling just read out. I'm not so sure he meant to read it in precisely that form. There should be reference made to "power of attorney for personal care" instead of "continuing power of attorney." The handwritten amendment has the proper wording.
Mrs Sullivan: Mr Chairman, the government's bill uses the words "continuing power of attorney."
Mr Fram: It's a mistake.
Mrs Sullivan: Do you have an amendment?
Mr Winninger: I discussed the matter with Mr Sterling informally and I think he knows where we're going.
Mr Sterling: I would like to withdraw the motion I have just read, Mr Chairman.
The Chair: Mr Sterling moves that subsection 48(4) of the bill, as reprinted to show the amendments proposed by the Attorney General, be deleted and the following substituted:
"48(4) Each witness shall, if the witness has no reason to believe that the grantor is incapable of giving the power of attorney for personal care or making decisions in respect of which instructions are contained in the power of attorney, sign the power of attorney as witness."
Mr Winninger: That's certainly acceptable, Mr Chair.
The Chair: Okay. It's my understanding all you did was eliminate "continuing" from the previous motion.
Mr Sterling: From the previous motion I proposed, yes.
The Chair: Thank you. Agreed?
Motion agreed to.
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The Chair: Is it my understanding that the government will not be putting forward its motion on subsection 48(4)?
Mr Winninger: Yes, we'll withdraw that motion, Mr Chair.
The Chair: It's not necessary, but thank you.
On the government reprint on subsections 48(3), (4) and (5), as amended, discussion? Mr Winninger.
Mr Winninger: I was just going to suggest it carry as amended, if we're voting on all three subsections together.
The Chair: As amended.
Mr Winninger: Yes.
The Chair: Government reprint subsections 48(3), (4) and (5), as amended, agreed?
Mr Wessenger: Don't we have to go back to subsection 48(1), though?
The Chair: Yes.
Mr Winninger: Right now we're voting on subsections 48(3), (4) and (5) as amended.
The Chair: Right. That's agreed? Carried.
Now we go back to the government reprint on subsection 48(1).
Mr Winninger: I would move an amendment to subsection 48(1) which would delete reference to the present subsection (3).
The Chair: It has to be written out.
Mr Winninger: After the renumbering, though, it will be --
The Chair: Maybe we could stand it down till it's written out.
Mr Winninger: Yes.
Mr Sterling: Isn't that done automatically regardless?
Mr Winninger: The renumbering, you mean?
Mr Sterling: No, the reference to other sections.
The Chair: No.
Mr Winninger: I would move then that we stand it down until we have a proper form for the motion.
The Chair: Can I have unanimous consent to stand that down? Agreed? Thank you.
Now we go to a Liberal motion on clause 49(2)(c).
Mrs Sullivan moves that clause 49(2)(c) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out.
Mrs Sullivan: The reason for this motion is that it reflects some of the concerns that were placed before the committee with respect to the obligations to file a guardianship plan with the public guardian and trustee if one has been given a power of attorney for personal care by an individual. The sense is that the copy of the power of attorney, which expresses the capable wishes of an individual who is providing that power, should be adequate for the purposes of the PGT.
Mr Winninger: It's our position that everyone should have a guardianship plan for a validated power of attorney, and I can't understand why you would wish to remove that safeguard.
Mr Sterling: The validated power of attorney that would happen here would be important only if the person was in certain settings. Is that not correct?
Mr Winninger: I'm going to let counsel speak to this because it is an important element of how this machinery will operate.
Mr Fram: The validated power of attorney is like a guardianship order. It allows the guardian to enforce his or her decisions on somebody who doesn't want those decisions. As the bill was changed by the government amendments, most people will have powers of attorney, selecting a family member to make medical decisions and no problem will happen. They won't be validated. They will just go along with the wishes of their relative. But in some cases where you have a situation of a person with Alzheimer disease who develops wandering patterns of behaviour where some decisions are going to be made that are coercive in effect, that's when you'll need the validated power, because the objection of the person can't be allowed to override what's in his best interest. That's when you need the guardianship plan.
Mrs Sullivan: Let's look at the process. The power of attorney has already been registered in an expedited --
Mr Fram: That's section 50.
Mr Winninger: We're not quite there yet.
Mrs Sullivan: I still think the power of attorney will contain the specific instructions which must be followed by the attorney, and with the filing of the copy of the power of attorney, that in fact is the plan.
Mr Winninger: The copy of the power of attorney may say as little as, "I appoint so-and-so my power of attorney." There's always some boilerplating in these forms, but unless the grantor of the power of attorney sets out specific instructions to the attorney in the event of incapacity, those would be absent. So it's appropriate, I would submit, that there be a plan of guardianship set out since decisions made by the attorney under a validated power may well override the objections of the vulnerable person.
Mr Sterling: I don't mind a guardianship plan being there. It's probably essential in terms of the kind of power that an individual is turning over to somebody else under these contemplated circumstances. I'm still interested in hearing debate on it, however. Under subsection (4), the advocate is called in to make certain the grantor understands what's going on. I don't mind that intervention at that stage because we're talking about, as I say, a Ulysses kind of situation. The advocate doesn't review the plan?
Mr Fram: It would be the public guardian and trustee who would review the plan.
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Mr Sterling: Is that somewhere in here or is it just assumed that would happen? Is it necessary that the public guardian and trustee has to meet with every one of these? Is that the intent?
Mr Fram: It's basically believed that they'll be sent in. The plan will be sent in, the assessments will be sent in, so he now has a number of pieces of paper. He may check out where the person is, call the physician or whatever, but if he's satisfied that the people have thought about what kinds of decisions are going to be made in this other person's life, he will be satisfied with the plan and he will validate the power of attorney.
If he doesn't, the implication of subsection (10) is that he will refuse to validate the power of attorney and shall apply to the court to settle the matter. One can expect that in many cases plans of guardianship will be relatively simple, but in situations, for example, where there's complex medication or the person is not living in an institution, more will have to be in there. If somebody's living in X nursing home and being moved from floor to floor and being confined to stop him wandering and getting the ordinary food that's given in the nursing home, it will be a relatively straightforward document of about a page long.
It will always be a document where the public guardian and trustee will have to have an idea of what kinds of decisions have to be made in this person's life, sort of the ambit of the situation that person is in. It will be a standard form document that will be provided by the public guardian and trustee to the family so they can fill it out as part of the application. If he's not satisfied with it -- it isn't filled out -- he will not validate it until he gets a document that describes the kinds of decisions that are going to be made in this person's life, where he is going to be living, what his situation is likely to be.
Mr Sterling: Okay. That's fine.
Mrs Sullivan: I guess part of my difficulty with this is that the power and the duties granted to the attorneys are quite clear in the legislation. They have to act in a certain way. They have to enable and ensure that the person participates in decisions along the way. How can a plan of guardianship that fully indicates evolving participation of the person be filed?
The power of attorney that's given by the person includes no static plans that the attorney will be involved on a continuing basis in certain specified areas of decision-making, whether it's in relationship to housing decisions, shelter or medical care and treatment, depending on what the individual has decided that attorney should be responsible for, and one of the obligations of the attorney is to ensure that to the best of the ability of the person, that person is involved in those ongoing decisions that are being made. It seems to me that the authority to the attorney comes from the power of attorney rather than from the guardianship plan which is being placed only by the attorney.
Mr Winninger: To come back to my earlier point, there may be grantors of powers of attorney that may set out in their instrument very detailed directions as to accommodation, hygiene, education clothing and what have you. I would suggest that the guardianship plan that's filed with the PGT would have to reflect what's in the instrument that the grantor signed.
On the other hand, there may be very general powers of attorney for personal care that just say, "I want so and so to make decisions regarding my personal care." In this particular case, if the guardian has that wide latitude to make decisions, we're asking that the attorney for personal care file a fairly detailed plan so that the PGT will know what lies in the future for this incapable person.
Mr Sterling: On the certificate that's issued by the public guardian and trustee, if, for instance, the PGT decided that the guardian was to have decisions relating to the health care or a particular aspect of the health care of the grantor, would that be stated specifically in the certificate that is given by the PGT? The power emanates, according to section 49, out of the certificate.
You see, my concern is the person who's going to provide that service for this vulnerable person. The guardian comes in and says, "This is to be done for my child," or whatever. That health care provider is going to learn to look for a certificate, or some other kind of worker who might be meeting the needs of this particular individual. I would view that the guardianship plan is necessary in order for the PGT to be able to figure out what the scope of that certificate might be. Am I right or wrong?
Mr Fram: Yes, the certificate will set out the scope of the authority. It will derive mostly from the assessment or the assessments. The assessors will agree on the functions that the person is incapable of. It will be powers in relationship to the areas of life that the person can't make decisions about. I think most of the certificate will say that the person certified as guardian may make decisions about these areas of the person's life, and that will relate back to the assessments.
Mrs Sullivan: I think that's where there's part of the problem. The power of attorney may in fact be granting quite limited authority to the attorney. None the less, what's required here is a full guardianship plan.
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Mr Sterling: I think the power of attorney almost becomes secondary in this circumstance. It's the certificate issued by the PGT that is the key document because it is the real authority the service provider looks to in terms of protecting the interests of the vulnerable person. So two documents will be presented, I assume: the power of attorney, plus the certificate. The power of attorney will show that this person has signed a document which basically says that this person who's now refusing treatment or refusing to be bathed or whatever it is, has said in the past he agrees with this and the PGT has said, "Yes, the assessment was done." The certificate says this power is given to the guardian to basically enforce this to make certain the person is clean or bathed or whatever it is.
So there are two documents associated with that, but it seems to me that the power is quite all-consuming and a very significant power that one person is giving to another person in society. Therefore, I don't think that asking for a guardianship plan is an excessive requirement. That guardianship plan may be two lines or it may be 20 pages, depending on how extensive that guardianship is to be.
Mrs Sullivan: Let me suggest an example where the power of attorney is given by a person who says that he wishes the attorney, in granting consent to treatment, not to consent to extraordinary measures to prolong life and that is the full extent of the instruction in the power. This section would still require a guardianship plan. This section does not limit the guardianship plan to the specific duties the individual is granting the attorney the power to do. It's a guardianship plan. It's not a guardianship plan with respect to the instructions contained in the power.
Mr Fram: I think Ms Sullivan has in mind a very narrow power of attorney. Under subsection 47(3), a power can be as narrow as the person wants to make it: "I appoint a person to make only these kinds of health care decisions for me and in these circumstances to decide only this way."
In that case, there would not be much point in validating a power of attorney of that kind because you would really have to go for guardianship if you are going beyond the scope of the power of attorney. Most powers of attorney will say, "I want my daughter Mildred to be my attorney for personal care," and then will list the instructions with respect to anything they care about. But that document will be a very broad document. If the person who makes it gets into an accident, becomes incapable, all of the personal care decisions in that person's life -- where they live, the kind of food that's presented -- will be made by their attorney. There will be no need for guardianship and, where there's objection by the grantor, no need for validation.
So we're talking about, when we come to validation, a broad power of attorney that may have some instructions in it and will serve as a guardianship order, because it's only being sought when some decisions have to be forced on the person. That's when we'll need this guardianship plan.
Mr Winninger: Just in addition, and to come back to Ms Sullivan's earlier point about a power of attorney that specifies that lifesaving measures should be withheld, you made an earlier point about a power of attorney that may only speak to the withholding of life-support measures in certain instances. If we take that one as our example, up until the point where a decision would have to be made to withhold lifesaving measures, you'd still need to make decisions regarding that person's personal care in other ways. So I don't know whether even in that instance you allude to, you could set aside the need for a guardianship plan.
The Chair: Further discussion? No further discussion? Okay, we will now proceed to the vote on the Liberal motion on clause 49(2)(c). All those in favour? Opposed?
Motion negatived.
The Chair: Another Liberal motion, subsections 49(6) and (7).
Mrs Sullivan moves that subsections 49(6) and (7) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"Validation by PGT
"(6) The public guardian and trustee may validate the power of attorney if he or she receives notification from the advocate,
"(a) that the grantor does not oppose the validation of the power of attorney; or
"(b) that the grantor refuses to meet with the advocate.
"Certificate
"(7) As soon as he or she receives the notification described in subsection (6), the public guardian and trustee may validate the power of attorney by issuing a certificate to the attorney."
Mrs Sullivan: I think this is a self-evident motion. It provides the right to refuse an additional meeting with another person with respect to the process here and preserves the right of the person not to meet with the advocate. The way it reads now, if the person refused to meet with the advocate, because of the latter wording, the PGT could not validate the power of attorney.
Mr Winninger: Just briefly, by refusing to meet with an advocate, that person would then, under your amendment, give up all his or her legal rights to challenge the validation. For that reason, we can't accept it.
Mrs Sullivan: Well, he is not giving up his rights; he's giving up the explanation.
Mr Winninger: But what you're saying is that if the person refuses to meet with the advocate, what you have is automatic validation.
Mrs Sullivan: No.
Mr Winninger: And you're taking away the legal and civil rights that the person would normally enjoy otherwise.
Mrs Sullivan: No. The person can still oppose the validation. The advocate's involvement under subsection 49(4) is to tell the person that the validation is proposed, talk to him or her about the powers that the person has already given, because the person has written the power of attorney, and tell him that he can oppose it.
A person can say, "No, I don't need to meet with the advocate." If the person says, "No, I don't want to meet with the advocate," then the process can still continue and the person can still oppose. The duties of the advocate here are to provide information.
Mr Winninger: I don't agree with you but I'm going to let Mr Fram respond.
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Mr Fram: I think the consequences of your amendment are that the public guardian and trustee will be validating the power. So he will be giving the attorney coercive power over the life of the person who has refused to meet with the advocate. That's a pretty stiff penalty for not meeting with the advocate, on the one hand.
We already know that the person whom the advocate sets out to visit has significantly diminished capacity and has already been assessed by two people as being incapable of making certain kinds of decisions. So to penalize that person by saying: "Well, your behaviour was a problem in the first place. If you refuse what is our best opportunity to reach out to you and say, `Look, do you oppose or do you not oppose,'" the conclusion is that his civil rights are down the tube and he doesn't get a chance in court or anything else. That is a pretty severe consequence of not wanting the advocate to visit.
Mr Sterling: I think the problem here is that what everybody would probably like is something that's sort of halfway between. There's a problem in that the public guardian and trustee may find itself in a position, for some reason, of not being able to get a notice from an advocate. Should that, as well, negate the whole process of having a valid power of attorney?
I guess what I would prefer is some kind of fudge words or whatever, where the PGT would have some kind of discretion, after due diligence, to have an advocate interview or whatever. If he were satisfied through some other kinds of means that the person was not opposing this, be it somebody else, if the PGT himself had sent somebody in and interviewed him or whatever -- what I'm trying to find is that the sanction seems to be yes or no, because of an advocate. I guess the sanction should be yes or no, as long as the PGT is satisfied that the person has been consulted and that he or she doesn't oppose this.
Mr Wessenger: I have a concern about this section, and there may be an answer to this. It seems to me that you could end up with a roadblock here: The application is made, the person for whom the certification is sought refuses to see an advocate, and the result is that there's no other way to validate the power of attorney. Am I right?
Mrs Sullivan: That's right.
Mr Fram: That's right. You'd have to go to court.
Mr Winninger: You go to court for guardianship in that situation.
Mr Wessenger: You'd have to go to a full guardianship.
Mr Winninger: And the PGT, of course, can go to court for guardianship in that eventuality.
Mr Wessenger: Right. So it'll still be open to the person to apply for guardianship, based on the power of attorney, to the court.
Mr Winninger: Oh, certainly. And in that case it would be up to the vulnerable person to oppose or not, either with or without counsel.
Mr Wessenger: This is really a short method of getting in the position of "equivalent to a guardian." That's why I just wanted it to be clarified.
The Chair: Mr Winninger.
Mr Winninger: I think I addressed the point I wanted to address.
Mr Sterling: What you are trying to do here, though, is satisfy the PGT that the grantor doesn't oppose it, and the PGT wants to be satisfied that the grantor has been advised. Why wouldn't you then give the PGT the opportunity to meet those in whatever way the PGT so chose?
Mr Winninger: If you're looking at some kind of written waiver on the part of the person, one might well question the capacity of a person to sign a written waiver of his or her right to see an advocate. You could be into a real thicket there.
Mr Sterling: Let's compare this to something that happens every day in this province in terms of separation agreements between estranged spouses. We require that the same lawyer can't advise one party as well as the other party so that we're certain the advice is not tainted. That's done so that a judge who is sitting there after says, "Look, you two people sat down and you were advised by this. You've got to live by this agreement that you entered into," and there was no undue influence or whatever it is.
I equate this one, if you want to have the same thing, that the grantor and the attorney are there and you're saying, "Okay, we want to be absolutely sure that the grantor is properly advised," so that if a dispute arises, the judge will know what's happened. What I'm saying is, the public trustee is the judge in terms of deciding the validity of this guardianship, so why are you saying the advocate alone must be there to advise the grantor and not allowing the judge to short-circuit it, if that's the last resort that has to be done?
Mr Winninger: The advocate makes the expedited process work, but if it doesn't work, then you go the longer route. Mr Fram has something to add.
Mr Fram: It is essential to recognize that nothing works in Bill 108 without advocates. All of the court process, all of the validation processes depend on there being an advocate to come and advise the person whose rights might be lost, so you can't go ahead with a court application unless an advocate visits. That's sort of the central theme of this whole bill, and that's deliberate. We want to be sure that people know what's going on in their lives.
Mr Sterling: The alternative is to force this person into court and go through the expense of court, the delay of court and all the rest of it. If the PGT says, "Okay, we're trying to expedite this whole thing to the two parties," and they can't get the vulnerable person to agree to come to see an advocate -- he's had a bad experience with an advocate before or there's no advocate in the area or the Advocacy Commission has been shut down or whatever -- if the PGT goes directly to the vulnerable person or whoever is giving it and says, "Look, do you understand what you're doing? This is what you are doing, I've got to give somebody else this right," why are we denying the PGT that as an alternative process?
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Mr Fram: The PGT is an administrator. He will act as guardian. He will act as guardian of property. He will act as guardian of the person. He is not a decider.
Mr Sterling: He is right here.
Mrs Sullivan: He's deciding.
Mr Fram: What does he decide in this section? He decides that he can accept that it meets the statutory criteria or it doesn't. If he says it doesn't and the person who sent in the application is dissatisfied with the PGT's decision, the PGT has to take it to court and let the court decide. So he's left in the role always as administrator.
Mr Sterling: I don't think you're right here, Steve. Because we're trying to get away from a court hearing, which I agree with, you're putting him in the position of making a decision, not only about the application, but he's going to have to write on that certificate how far that certificate goes. He's making a judgemental decision at that time. There's a right of appeal and all the rest of it that occurs later.
All I'm saying is, why on earth do you want to tie his hands if, through some quirk, the advocate cannot meet with the individual because the person is in Timbuctoo and there's a PGT representative there and the PGT representative can go right over to this thing and get it solved, be done with, and that's the end of it.
Mr Fram: The central principle is that the PGT role is to make decisions for people; the advocacy role is to allow people some choices as to options. It may be that validation isn't the right thing. Maybe the advocate will find that really what's at issue is whether this thing should be revoked at all, but those are the kinds of questions and the kinds of issues the PGT is not going to be equipped to decide. That's why we have this advocate, who is essentially a voice of the person who's going to be losing his or her rights.
The Vice-Chair (Mr Mark Morrow): Any more comments or questions?
Mrs Sullivan: I think on this side we have problems with the situation where the PGT is obligated to refuse to accept the power of attorney as valid if the only reason for not doing that is that the person has refused to meet. The PGT is now obligated to refuse to validate the power, and the only alternative then is to proceed to court.
Mr Sterling: The problem with the section is that you're assuming that an advocate is going to be readily available across the province, and that may not be the case. I guess what I'm seeking is a little bit of flexibility on the part of allowing the PGT to say, "I am satisfied otherwise that the grantor knew what he was doing."
The Vice-Chair: Any further comments or questions? Seeing none, we'll vote.
Mrs Sullivan: We're having some discussion here that may mean there might be some movement.
Mr Winninger: I hoped I had laid Mr Wessenger's concerns to rest, but if I haven't, I see his hand up.
Mr Wessenger: I was going to give some explanation of your interpretation. If your interpretation is correct, then I have no problem with that section. I must say this is the interpretation that was given to me, and I don't know whether I agree with this interpretation, but I will accept counsel's opinion on it, and that is, let's just say the advocate cannot meet with the person. Then the public trustee gives his refusal. That's the next step.
Then the attorney can dispute the refusal, in which case, if the attorney disputes the refusal, I understand the interpretation is that the public trustee must apply to the court to validate. So it would be the public trustee's obligation to apply. The attorney could force the public trustee to apply to validate. That was the explanation given to me as the meaning of the section. If that's true, then I don't have any problem with it.
Mr Winninger: Subsection 49(10) is quite clear in saying, "If the public guardian and trustee refuses to validate the power of attorney" -- under any circumstances -- "and the attorney disputes the refusal, the public guardian and trustee shall apply to the court to decide the matter." As Mr Fram indicates to me, the attorney could seek an order of mandamus if the PGT declined to exercise his legislative function there.
Mr Sterling: That's fine and dandy, but you're talking about time and you're talking about expense.
Mrs Sullivan: Plus months of waiting.
Mr Winninger: And you're talking about overriding the desires of an incapable person.
Mr Sterling: Absolutely not. What I'm talking about is saying that if the PGT can't get an advocate in there for whatever reason, either refusal by the grantor or the fact that he can't find an advocate, the PGT could say, "I'm going to send in one of the people in our office, because this is a very extreme case and we have to deal with this immediately," etc.
Why can the PGT not satisfy himself that in fact the grantor has been properly advised, knows what he is doing etc? All you're doing is asking the advocate to go and find that out for him as an agent of the PGT. That's really what this is all about.
Mr Winninger: I'll let Mr Fram speak to this.
Mr Sterling: He doesn't like the word "agent." I can read his eyes. I've been around him too long. Perhaps they can get a lawyer in town or somebody else in town who the PGT is satisfied can offer rights advice to this person as good as or better than an advocate. Why shouldn't you give the PGT that kind of discretion?
Mr Fram: I think a central or major function of the advocate is to do this. This is what people's lives are about. This is a statutory obligation. The fact is that there's no point in making the change here to this bill. That idea is central to the whole of the bill. Every time there's an application to court, every time there's an application to change an order, the advocate is the person who goes to find out what it is the person wants, to explain things. This is a group of people who will receive training and experience and who come from backgrounds that will best reach the person.
This whole process of paper guardianship in fact depends on our using advocates to reach down, instead of piles of paper and motions at court. We've sidetracked the courts or avoided the courts as much as we possibly can in this bill deliberately, only because we had some assurance in the whole of the bill that advocates would be there to explain what was going on and carry that voice, that communication, of what the person wanted to the process. Without them, this bill doesn't work at all.
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Mr Winninger: I don't speak for the public guardian and trustee, but I'm not so sure the PGT would want to be clothed with the kind of judicial power your proposal seems to clothe him or her with, making decisions as to whether advocacy can --
Mr Sterling: They have that power. What if they're not confident of the ability of the advocate who has advised this person? I hope the PGT would go back to the grantor or try to get some other advice to the grantor to make certain that the grantor really understood.
Mr Winninger: Under subsection (5) the PGT accepts notification from the advocate that the meeting took place and that the grantor does not oppose the validation.
Mr Sterling: I know, but you're talking like these things are easy issues, like one thing happens because an advocate met with this person. If the meeting lasted 30 seconds, then I'd be concerned. If the certificate he's going to issue is extensive, I think the PGT should be concerned that the advocate's interview was a meaningful interview. He might want to ask that question. I don't know, but I'm willing to give him that kind of discretion on the other end of it.
What we're concerned about is that the grantor knows what's happening to him and is advised that he doesn't have to do this and that nobody's pressing him into doing it against his will. That's what we're after and we're asking the PGT to make a determination. I just say why not give him the discretion to make that determination. I've said enough.
Mrs Sullivan: My view is that in most cases people will in fact want and welcome the advocate who will sit with them and in a friendly way walk through what will occur in the next steps as the power of attorney is executed and validated.
What I see here is a situation where a person who is already known to be incapable has been assessed by two assessors. That information is in the hands of the PGT. We have an indication that when the person was capable he had a will that the power be granted. The only piece of the entire puzzle the PGT doesn't have is the notification from the advocate that the advocate has explained the situation, conveyed the information and requested an indication from the person that he will or will not want to oppose this. Therefore, the PGT only has the option of refusing, if the advocate cannot get that final last piece. The PGT has no other option than to refuse to validate it.
I give you a situation where the reason for requesting the power is akin to an emergency situation. The PGT here is unable and in fact required to refuse to validate that. The PGT now, in an emergency situation, is going to have no other alternative but to go to court to be appointed as the guardian himself. Then we will still have to go back through another court process to validate the original power for that one little portion, which may be done simply because the person is already incapable, and part of his incapacity may be that he says: "I don't want to do this. I don't want to talk to one more person about anything."
Mr Winninger: Just in response, it would appear that you may be referring to an emergency situation where there's a possibility of serious adverse effects. There's another mechanism for that set out in section 59, which we haven't gotten to yet.
Mrs Sullivan: But that includes going to court.
Mr Winninger: It does, but you can get into court on short notice where circumstances warrant.
Mrs Sullivan: Exactly, but you'd still have to go to court on short notice for the PGT to be made the guardian, and then you'd have to go to court latterly with an application to validate the power. Is there any other way --
Mr Winninger: Just to come back to Mr Sterling's point, we're clothing the attorney with what could be extremely broad, comprehensive, intrusive powers here, and we feel that the courts should be making those decisions where there's not a consent, especially where an advocate has not intervened.
Mr Sterling: I only say that may be the case for what I would call a very serious certificate. If we're talking about a minor certificate, where the attorney or the guardian is given pretty restrictive rights, for instance, that he can order the bathing of a person or something of that nature, which I would consider pretty minor in terms of being intrusive, we could have to go to court to do that as well.
Mr Winninger: You can appreciate, though, the difficulty in trying to draw lines. What may seem minor to us may be of major significance to the vulnerable person. How do you deal with that practically?
Mr Sterling: How you deal with it practically is that you try to save the system, you try to save the family and you try to save the court's time and energy on things which we, a collective group, consider reasonable.
Mr Winninger: It seems, though, that you're taking, as was pointed out yesterday, the worst-case scenarios, which I guess is the job of the opposition, to keep the government on its toes.
You're saying we should change this section, because in what may be a worst-case scenario, where someone needs immediate attention, he won't see an advocate, yet in most cases the person has already designated a power of attorney and this is just a case of it being validated. In most cases, probably the vulnerable person will welcome the intervention of an advocate and consent to the validation because he chose that person to make decisions in the first place.
But if there are a few individuals who don't want to consent to validation, surely it's appropriate there, since you're about to intrude on their civil and possibly legal rights, that a judge weigh all the evidence on both sides and make a decision that's in accordance with due process. I don't think that's too much to ask to protect the rights of these vulnerable individuals.
Mr Sterling: As I understand some of the diseases that are involved and some of the disabilities or the mental illnesses that we may be talking about when we're dealing with these, lucidity comes and goes. As it comes and goes, the cooperation of that grantor is going to come and go, so it depends when the advocate calls. If he calls a month from now, you may force the family into court because lucidity is gone, but if in fact they're lucky and they get in an advocate in a day and the person still is within a lucid period, then he may be able to gain that kind of thing.
What we're trying to do here, in my view, while protecting the interests of the individual to the very maximum, is make it uncomplicated etc with the family, and we're asking the PGT to make the decision. We're putting some great faith in what an advocate is going to say or not say to this individual. When he sends this note to the PGT, it's supposed to be some great amount of advice that this individual has received. Even after he sends the note, all of the clauses are permissive. They don't say he "shall" issue the certificate; it says he "may."
You're still giving the PGT discretion, which I think is right, but if you're going to give him discretion, why are you saying that this particular process, ie, the meeting with the advocate, must take place if the PGT is satisfied that particular part of the process can in fact be replaced by something else which is equal to or better in terms of determining what are the real wishes of that person?
Mr Winninger: I don't have anything to add, Mr Chair, to this debate because I'd just be repeating myself.
Mr Sterling: Yes, I think we're just going around in circles.
Mr Wessenger: Just to make a comment, I think the Liberal amendment unfortunately doesn't provide protection, because even if we were going to make a simpler procedure, at a bare minimum you would have to have required evidence of proof of service of the application on the individual. That isn't in the Liberal motion, so I don't see how we could support it, because it would detract too much from the rights and I think it would be contrary.
Without notice, I think we'd have very major problems from a legal point of view. Also, we can't go to the extent of giving the public guardian and trustee a discretion because that might be considered unconstitutional, if I remember my law correctly.
The Chair: Further discussion?
Mr Sterling: It is discretion, isn't it?
Mr Wessenger: No, it's not discretion here. It's just the "shall," I believe.
Mr Sterling: No, it says "may."
Mr Winninger: It says "shall" for applying to court if he refuses to validate. That's where the "shall" appears.
Mr Sterling: But I mean in terms of issuing the certificate, it says he may.
Mrs Sullivan: Yes, that's right.
The Chair: Further discussion?
Mr Sterling: I'm ready to vote.
The Chair: Seeing no further discussion, we'll proceed to the vote on the Liberal motion on subsections 49(6) and (7). All those in favour? Opposed?
Motion negatived.
The Chair: We had a fairly lengthy discussion on there. I think we could use a 10-minute recess.
The committee recessed at 1524.
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The Chair: I call this meeting back to order. We'll now go to the Liberal motion on paragraph 50(2)4.
Mrs Sullivan moves that paragraph 4 of subsection 50(2) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding at the end "and to detain and restrain the grantor in that place during the care or treatment."
Mrs Sullivan: This is an additional -- I shouldn't say additional -- a completion of the thought, I believe, that's included in subsection (4), which would enable the attorney, subject to certain conditions, to take the grantor to the place for care or treatment but doesn't include the right to ensure that the person stays there during the course of that care or treatment. That's the reason for the inclusion of this amendment.
Mr Winninger: We find that to be an acceptable refinement on the wording in paragraph 50(2)4 and therefore we'll be supporting the amendment as well.
Motion agreed to.
The Chair: Now we'll go to the Liberal motion on clause 50(6)(b).
Mrs Sullivan moves that clause 50(6)(b) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "capable of personal care" in the third line and substituting "capable of giving a power of attorney for personal care."
Mrs Sullivan: I think there was a drafting error in this section. Earlier I mentioned, when we included an amendment indicating that a person could have capacity to give a power for personal care, that the person didn't have to be capable of that personal care. There was confusion there. I think this is a drafting problem rather than a problem, so that's why I'm trying to correct it.
Mr Winninger: We certainly see the wisdom of that amendment. It's also in accord with an earlier amendment that was moved by the Liberals to section 47.1, indicating that you don't have to be capable, necessarily, of personal care. Therefore, we're supporting this amendment.
Mr Sterling: I'm always glad to see the opposition correct the errors of the government, so I will vote for this motion.
Mr Winninger: You couldn't let that go by graciously.
Motion agreed to.
Mrs Sullivan: Mr Chairman, I'm withdrawing clause 50(14)(b).
The Chair: Thank you. Okay, government reprint, clause 51(1)(a). Agreed? Carried.
Government reprint, clauses 51(1)(c) and 51(1)(d). Agreed? Carried.
Government reprint, subsection 51(3). Agreed? Carried.
Next, we go to the Liberal motion on clause 56(2)(f).
Mrs Sullivan: I'm going to stand this amendment down following discussions with the parliamentary assistant and counsel who, I understand, like the intent of the motion; however, just feel the issues that are included would better be included in specific parts of the bill. So I'll stand this one down and we'll come back to it.
Mr Winninger: Agreed on that.
The Chair: Government motion on clause 56(4)(c). Mr Winninger, would you care to move that?
Mr Winninger: Yes, I will.
The Chair: Mr Winninger moves that clause 56(4)(c) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out.
Mr Winninger: We feel the guardian should not be clothed with the power and authority to give consent on the person's behalf to the use of restraint, confinement or electric shock for the purpose of aversive conditioning. We understand that the need for aversive conditioning is very limited. We understand furthermore that there is great repugnance, as expressed in the presentations to the committee, that the use of electric shock is still being used occasionally for aversive conditioning. We feel this power is just too objectionable to give to a guardian, and for that reason we're seeking to delete it. There is a later consequential amendment to follow.
Mr Sterling: To tell you the truth, I don't know how to assess this latest move with regard to the government withdrawing the section. I guess I object, not from the standpoint of the merit of either having it in or out, but from the standpoint of doing it at this late date, when we've had many health care providers in front of us who might well have commented on the section. Seeing it withdrawn at this late date in this process. quite frankly, I'm not able to vote on this with any degree of knowledge as to what the medical profession would say either in favour of or against the withdrawing of this section. I guess what I'm doing is in a vacuum. I only wish the government had expressed its intention to withdraw this at an earlier date.
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Mr Winninger: Just to add to what I said earlier, there has been some informal consultation with the people who still administer this therapy, if you can call it that, on a limited basis and it would appear that they don't have any great resistance to not utilizing that therapy in the future.
I might add that this is not a form of treatment. There are other restraints available to people who deal with people who may require such restraint. But there seems to be a growing antipathy and aversion to the use of such conditioning and for that reason we feel it's appropriate that the guardian not be clothed with authority to authorize the use as a substitute decision-maker.
Mr Sterling: I was quite upset to hear the testimony of one of our witnesses, a psychiatrist, who suggested that self-inflicted mutilation was a necessary part of her treatment process of people who were sick and whom she was treating. I always feel uncomfortable when we're dealing with sections dealing with medical treatment without expert advice in front of the committee.
I will support the motion, but as I say, I feel it's quite inappropriate to do this at this time.
The Chair: Thank you, Mr Sterling. Further discussion? Seeing none, we'll proceed to the vote.
All those in favour of the government motion on clause 56(4)(c)? Opposed?
Motion agreed to.
The Chair: Next we'll go to the government reprint on subsections 56(5) and (6).
Mr Winninger: One of those is a deletion -- 56(6).
The Chair: Agreed? Carried.
Mrs Sullivan: It's been pointed out that an identical situation that's been included in two of my amendments with respect to replacing the words "capable of personal care" and substituting "capable of giving" a person "a power of attorney for personal care," exists in subclause 51(3)(b)(ii). I know we've passed that section, but I wonder if we can just go back to take care of it.
Mr Winninger: To which section?
Mrs Sullivan: Subclause 51(3)(b)(ii) on the top of page 31.
Mr Winninger: Yes, I think we could consent to reopen that.
Mrs Sullivan: We have various opinions on whether this is appropriate or not, so I'll stand this down and, at an appropriate time, we'll open it if it is appropriate. Figure it out, Steve.
The Chair: Thank you.
Mr Winninger: I think in section 51 we're talking about terminating a power of attorney for personal care where the grantor resumes capability for personal care. So it would seem appropriate there, but we'll hear from our counsel.
The Chair: Okay, government amendments? Subsection 57(3).
Mr Winninger moves that subsection 57(3) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "subsection 56(2)" in the third line and substituting "subsections 56(2), (3), (4) and (5)."
Discussion?
Mr Winninger: If the Chair will permit me a moment, I can share the rationale for that amendment with you. As it currently exists, there is a problem in subsection 57(3). It would appear that a temporary guardian could not be given the powers that a court can give under subsections 56(3), (4) and (5). There seems to be no reason to preclude a temporary guardian from being given these powers in some circumstances.
Accordingly, it should be possible for a person who has partial guardianship and custodial authority to exercise the power to apprehend, as provided in subsection 56(3), or to consent to the person's admission to a psychiatric facility under subsection (4), and to be given the power to exercise the subsection (4) powers from time to time. So the change is to amend the subsection by adding, after "56(2)," "(3), (4) and (5)."
Mr Sterling: I can see (3), but I don't understand (4) and (5).
Mr Winninger: Could you give me a moment to confer with counsel.
Just in answer to Mr Sterling's question, we feel that the temporary guardian ought, in addition to subsection (2), to have the powers provided in subsections (3), (4) and (5) and that's why those would be added under section 57.
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Mr Sterling: I don't see any powers in (4) and (5).
Mr Winninger: Of section 56?
Mr Sterling: Yes.
Mr Fram: It's to admit to a psychiatric --
Mr Sterling: That's (3).
Mr Winninger: Wait a minute. What we're doing in (4) in particular is importing the restrictions that apply to a permanent guardian into the section that governs temporary guardians, and the same subsection (5) allows an order that can specify powers that may be exercised from time to time. Basically, we're extending powers to the temporary guardian that the permanent guardian currently would enjoy.
Mr Wessenger: We're not talking about temporary guardianship here. Aren't we talking about partial guardianship?
Mr Winninger: Partial. Sorry.
Mr Wessenger: Okay, I just wanted to clarify that.
The Chair: Further comments? Seeing none, we'll proceed to the vote. All those in favour of the government motion on subsection 57(3)?
Motion agreed to.
Mrs Sullivan: Mr Chairman, I also have an amendment on subsection 57(3), but I would like counsel's advice as to whether, with the government motion, my motion is now redundant.
Mr Fram: Yes.
Mrs Sullivan: It is. So you've covered what I had in mind. Okay.
The Chair: Okay, no need to withdraw.
Mrs Sullivan: I haven't read it in, so I don't have to withdraw it.
The Chair: Next, the government reprint on subsection 59(1). Agreed? Carried.
Next, on the PC motion, subsection 59(4).
Mr Sterling moves that subsection 59(4) of the bill, as reprinted to show the amendments proposed by the Attorney General, be deleted and replaced with the following:
"(4) Notice of the application shall be served on the person alleged to be incapable, and his attorney for personal care, if known, unless the court dispenses with notice in view of the nature and urgency of the matter."
Discussion?
Mr Sterling: It adds not only "the person alleged to be incapable" but that if there's an attorney for personal care, then that person should be notified of the application as well.
Mr Winninger: Perhaps I can have a moment to confer with counsel. I think that's a very reasonable amendment and we'll be supporting it.
The Chair: Further discussion? Agreed?
Motion agreed to.
The Chair: Government reprint subsection 59(12). Discussion? Agreed? Carried.
Government reprint subsections 63(3) and (3.1). Discussion? Agreed? Carried.
Next we go to government reprint subsections 63(4.1) and (4.2). Agreed? Carried.
Next we go to a government motion on clause 63(7)(b).
Mr Winninger moves that clause 63(7)(b) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"(b) The practice is consistent with the guardianship plan."
Mr Winninger: As it stands, clause 63(7)(b) regulates the right of a guardian or attorney to consent to the use of confinement, restraint and monitoring devices. For private guardians it requires that the consent be in conformity to the guardianship plan. However, if the guardian or attorney is the public guardian and trustee, the practice needs only be consistent with the public guardian and trustee's policies. The advocacy coalition objected to the existence of different standards, and we would suggest that the public guardian and trustee would have a specific guardianship plan for each person it acts for anyway, and therefore it seems appropriate that there be a guardianship plan for the PGT as well.
Mrs Sullivan: I think in another section of the act the PGT is precisely excluded from the requirement of having a guardianship plan.
Mr Winninger: We took it out. That was one of the deleted sections.
Mrs Sullivan: How about that; snuck it in.
Mr Winninger: We snuck it out.
The Chair: Further discussion?
Mr Sterling: Is it reasonable? I mean, is it necessary that each individual have a guardianship plan that is under the care of the guardian if there are policies or whatever as to what -- all that's going to happen is you're going to transfer the general policy to the particular individual -- is it necessary to pull out various paragraphs in order to do it?
Mr Winninger: People who presented suggested you shouldn't have two standards, one for the PGT and one for the private guardian. Since it's not onerous for the PGT, who probably already has a guardianship plan, why not formalize the requirement for that so you have the same consistent standard applying to both the private and the public guardian?
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Mr Sterling: I would think the PGT has more accountability than the private guardian, whether you want to admit it or you don't want to admit it. So I can see a difference for the standards.
Mrs Sullivan: In speaking to this particular amendment, it raises the entire issue of all the new requirements of the entire public guardian and trustee operation. This is becoming more and more of a concern. I think if you look through the act and do a rough count, there are about 40 new mandated obligations to the PGT than currently exist.
Frankly, I had missed the fact that in the earlier section we were eliminating the provision that the PGT does not have to have a guardianship plan. So in fact what we've done is added another obligation of the PGT in its operations. I suppose now we have to deal with the questions and ask what will be the extent of funding and staff to meet the other obligations of the PGT. I can do this here.
There are other areas of the bill where I want to raise these same issues, but what is the government's intent with respect to funding of the PGT and what is the government's intent in terms of funding the preparation for the implementation of this bill? Have you flowed money already in terms of preparation? What money do you intend to flow to deal with all these new requirements?
Mr Winninger: It seems to me this question has arisen before and the answer was given that money hasn't flowed yet and doesn't need to flow yet, but decisions will have to be taken as to what the cost consequences are of implementing the provisions of this legislation and it's appropriate that this be done.
Mrs Sullivan: Have you done a complete analysis of all the implications of the new provisions of this bill on the PGT, first of all, the costing, the requirements for additional staffing? When my office has anything to do with the trustee or the guardian's office, I'll tell you, they are really short-staffed now and probably underfunded. What are you looking at in terms of cost on full implementation here and what kinds of costs for the lead-up period to implementation? This isn't going to happen overnight, and now we have another mandated responsibility.
Mr Winninger: I know the public trustee's office has been following these proceedings closely and will make the appropriate submissions.
Mrs Sullivan: But you haven't done any analysis.
Mr Winninger: I'm not sure what you mean by "analysis."
Mrs Sullivan: Do you know how much this is going to cost? Do you know how many staff people are going to be needed?
Mr Winninger: There are decisions being made now as to --
Mrs Sullivan: What are your estimates?
Mr Winninger: I don't have those estimates here today.
Mrs Sullivan: I might have known.
Mr Winninger: Why did you ask?
Mrs Sullivan: Because frankly, I think the public's entitled to that information, and so are we as legislators. That's why I asked.
Mr Winninger: I'm confident that sufficient resources will be provided to implement this legislation.
Mrs Sullivan: I suggest to you that if sufficient resources, about which you apparently have no information, aren't allocated, this thing is going to be a monumental balls-up.
Mr Winninger: I would expect that would provide more grist for your mill.
Mrs Sullivan: Or more things to change when the government changes.
The Chair: On the government motion, clause 63(7)(b), further discussion? Seeing no further discussion, we'll proceed to the vote. All those in favour of the government motion on 63(7)(b)? Opposed?
Motion agreed to.
The Chair: We now go to the Liberal motion on subsection 63(7.1).
Mrs Sullivan moves that subsection 63(7.1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "in emergencies" in the third line.
Mrs Sullivan: This amendment is presented because the common law duty of care givers to restrain or confine persons is not limited to emergency situations, and if in fact the intent is to reflect the common law here, this change must be made. In fact I think in another part of the bill we talk about ongoing situations of delivery of health care.
Mr Winninger: We accede to your motion, particularly in light of the following wording after "in emergencies," which provides "as may be necessary to prevent serious bodily harm to them or to others." We think the situations are adequately limited by that phrasing and that deleting "in emergencies" would not take away from the section. Therefore, we would support your amendment.
The Chair: Further discussion? Seeing none, we'll proceed to the vote. All those in favour? Agreed?
Motion agreed to.
The Chair: Government motion, subsection 63(7.1.1).
Mr Winninger moves that section 63 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"Electric shock
"(7.1.1) 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."
Mr Winninger: This is the consequential amendment --
Mrs Sullivan: We don't have a copy.
Mr Winninger: Oh, I was advised by the clerk that copies have been circulated.
Mr Sterling: It could be possible. The pile is getting a little deeper and thicker.
Mr Winninger: Yes. You don't have 63(7.1.1)?
The Chair: Perhaps we can stand it down until we get copies. Do I have unanimous consent to stand that one down? Agreed.
Next we go to a Liberal motion on 63(7.2) and (7.3)
Mrs Sullivan moves that subsections 63(7.2) and (7.3) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out.
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Mrs Sullivan: I've moved this because frankly I feel that these issues are better included in the Consent to Treatment Act, where in fact they are included, and the provisions with respect to these issues, the issues of research and sterilization, should best be covered within that bill and solely within that bill.
In my view, our discussions related to providing consent for research were inadequate, and I would hope that we will, within a reasonable period of time and after some further consultation, be able to develop other protocols that are statutory with respect to providing consent to research.
It seems to me that the place for all these restrictions and statutory requirements with respect to consent in these areas should be in the Consent to Treatment Act, because the care givers, whether the attorney or the guardian, in fact must provide consent in accordance with that act. I think there's almost a redundancy here, but I think it's more appropriate that it be included only in the Consent to Treatment Act.
Mr Winninger: Mr Wessenger may have something to add to this since he's steering Bill 109, but I think it's quite clear, based on several presentations by I believe it was the University of Toronto Centre for Bioethics, that the common law was quite well developed as to when research activities could be carried out and what kind of consent is required for that, and further for sterilization and removal of regenerative tissue.
I think it's important that we retain these two sections in here so it's abundantly clear that the substitute decision-maker is not being clothed with authority to make decisions on behalf of individuals that involve the objectives in these two subsections. I think it's very appropriate that they be placed here and in this particular section because it clearly sets out that a guardian's powers and authority do not extend to decisions of this kind.
Mr Wessenger: I might just add that certainly I would have grave concern about the deletion of these sections because of the concern that if they are not left in, it is quite possible that a guardian might consent to some of the procedures mentioned in (7.2) or (7.3) and we want to ensure beyond any doubt that this consent will not result in authorizations which are presently not authorized under the common-law situation.
Mrs Sullivan: But they're already limited or they will be limited by the provisions of the Consent to Treatment Act, which in fact is broader in delineating the circumstances and the responsibilities of the substitute decision-maker and includes these but other responsibilities as well.
It seems to me that if you include these responsibilities, you're going to have to include all the other obligations on the substitute decision-maker also within this bill, rather than leaving the protocols for the substitute decision-maker's decision-making in the one bill and that becomes the reference.
Mr Wessenger: Certainly the advice I've received from legal counsel was that it was important that these provisions remain in this bill. Unfortunately legal counsel is not here today to respond and unfortunately I wouldn't have time to do the analysis just myself today to respond to the question, but certainly it's been well indicated to me that these were important to remain in both bills.
The Chair: Further discussion? Seeing no further discussion, we'll move to the vote. All those in favour of the Liberal motion on 63(7.2) and (7.3)? Opposed?
Motion negatived.
The Chair: Possibly we can go back to the government motion on subsection 63(7.1.1), now that it has been distributed. I'll give everybody a moment to read it. Mr Winninger, any comments?
Mr Winninger: As I was saying earlier, it's a consequential amendment to the amendment in clause 56(4)(c) which would prohibit a guardian from making decisions that would entail the use of electric shock on vulnerable people or consenting on that person's behalf to the use of electric shock as aversive conditioning.
I would just reiterate many of the submissions that were made in regard to the cattle prod issue and the strong repugnance that was indicated that this kind of aversive conditioning could still exist.
Given its limited nature and given the fact that there are many alternative forms of therapy available, it will not be diminishing in any substantial way the authority of guardians to deal with vulnerable people.
Mr Sterling: I make the same argument as I made before. I think any layman would find this kind of treatment repugnant, but as I said before, when I heard the evidence of another witness talking about a completely different kind of thing, somebody who knew a lot more about treating psychiatric disorders than I talking about defending self-infliction of injury as a necessary kind of behaviour, I am saying it is not proper for the government to bring forward amendments that really require expert testimony at a late date like this.
I guess I find it particularly offensive in that in my view it is something which attracts probably much more public attention and is more related to media and that kind of thing than it is to the real problems we face and are dealing with in this bill. Notwithstanding that, it leaves opposition members in a very difficult position because we have not heard any expert evidence on this. There was no notice that this was going to be considered an issue in this bill.
The parliamentary assistant knows my position because he asked me two nights ago about introducing such an amendment. I said to him at that time I didn't think it was right for him to bring an amendment which probably would have the approval of the medical profession and health care professions, but I don't know. I'm again voting in a vacuum. I think that legislators don't do themselves any favours by voting on matters where professions should have the opportunity to have their input. All I can say is I think it's wrong to do this at this juncture without that kind of expert evidence.
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Mrs Sullivan: I have very similar concerns to those expressed by Mr Sterling. The medical profession is now approaching the procedures, courses of treatments and the analysis of the appropriateness of their use in various circumstances in a far more scientific way than had been the case, say, earlier in this century or even 10 years ago.
For example, we've seen the very extensive analysis in the Scott report of the appropriateness of certain therapeutic interventions in the treatment of various situations, the use of laboratory examinations, laboratory tests. In fact, we have not seen or heard or had available to us that kind of expert analysis, nor is it my understanding that that request for the analysis has been made from the profession itself with respect to these procedures which are summarily being withdrawn as a matter of policy by the government.
Without that kind of expert advice as a matter of policy, we could have a surprise amendment saying that the guardian can't accede to the use of certain other medical procedures that the government doesn't approve of, and the restriction on that may be because of cost, not because there has been expert advice. The government could say, "We're not going to allow any more substitute decision-making on CAT scans or on access to certain highly expensive procedures." This is quite arbitrary.
As an individual citizen, I understand and am very sympathetic to the concerns that have been raised about electroconvulsive therapies, but we have not heard from the medical profession in an expert and analytical way its opinion of banning that in its entirety. They may say this is very good and they may not need extensive analysis to say this is appropriate. On the other hand, they may say there are certain protocols that should be used in terms of the use of electric shock.
Working here with a surprise amendment in this area and in association with the other amendment, we are opening ourselves up to a kind of Big Brother determination that certain procedures are acceptable on the basis of policy or on the basis of cost and certain others are not. So I have real problems with this, for very similar reasons.
Mr Winninger: By way of clarification perhaps, and maybe Mrs Sullivan is already aware of this, we're not addressing the issue of electroconvulsive treatment here. That's another issue perhaps for another statute and another day. We are dealing with an aversive response contingent shock here.
There are, we're aware, alternative aversive therapies available that involve the use of different kinds of restraint, punishment or loss of privilege, including differential reinforcement of incompatible behaviour, compliance training and functional independence training. Strong claims are made for that form of therapy.
We're not precluding the use of psychotropic drugs and we're advised that where such aversion is currently being used, it's combined with psychotropic drugs in any event. So we feel there are many different alternatives available here and that, given the apparent nature of shock, we need to include a prohibition. That's what we're doing in this subsection.
Mr Wessenger: I'd just like to add that I don't see this amendment as relating to treatment anyway. It's an amendment relating to human rights. I think it's a concern that human beings are treated like cattle, and that's the concern of the use of the electric shock in this instance. That's what it's trying to address: the human rights issue and not the treatment issue.
Mr Sterling: I just want to say that I object to Mr Winninger saying that we are aware of other treatments because we, the committee members, are not aware of anything about this issue. That was the whole point I was making.
The Chair: Thank you. Further discussion? Seeing none, we'll proceed to the vote on the government motion on subsection 63(7.1.1). All those in favour? Opposed?
Motion agreed to.
The Chair: I'll go back to the government reprint on 63(7.1) to (8) as amended.
Mr Winninger: There is a Liberal motion that affects (7.3), so we may have to deal with that first.
The Chair: Where's that?
Mr Winninger: Or have we already voted on that?
The Chair: That's been done.
Mr Winninger: Yes, that's right. We came back. I'm sorry.
The Chair: On the government reprint, as amended, on (7.1) to (8). Discussion?
Mr Sterling: Okay, you're just going through --
The Chair: We're backing up on the government reprint. Any discussion? Seeing no discussion, all those in favour of the government reprint, subsections 63(7.1) to (8)? Agreed? Carried.
Government reprint, subsection 64(2.1)? Agreed? Carried.
Government reprint, subsection 65(1).
Mr Winninger: It's a deletion.
The Chair: It's a deletion. Discussion?
Mrs Sullivan: We're at subsection 65(2) now?
The Chair: No, subsection 65(1). It's a deletion. Agreed? Carried.
Okay. Subsection 65(2), a Liberal motion.
Mrs Sullivan moves that subsection 65(2) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out.
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Mrs Sullivan: This amendment is put forward to deal with circumstances where, because of the nature of the person's illness, changes may be necessary. The change that could be contemplated in this section may be, by example, within a nursing home or within a hospital. That change may be to a more restrictive setting or even a move into a nursing home, and could not be done in the case. So we've just asked that this section be struck.
Mr Sterling: A "guardian of the person": Whom does that include? Does that include just the guardian who is operating under a validated power of attorney? Does it include a person who's acting as an attorney for personal care?
Mr Winninger: We'll let Mr Fram address this.
Mr Fram: According to section 66, "Sections 63 to 65," which this is, "also apply with necessary modifications to an attorney under a power of attorney for personal care that has been validated." So it applies to all validated attorneys. Then, "Section 63, except subsection 63(8) and (9), applies with necessary modifications to an attorney acting under subsection 47(9)."
Mr Sterling: I hope everybody makes a power of attorney and all the rest of it, but what happens is that it will probably still be 80% to 90% of the cases where people haven't made a power of attorney and it's the kids who are making the decision about mom or dad going from the fifth floor to the second floor of a nursing home, where he or she has a little more security, because there's been a deterioration in the capability of -- what happens in that situation?
Mr Winninger: I'll let Mr Fram continue with his answer on this one.
Mr Fram: Under section 65, the guardian, including those persons, would have to get the consent of the public guardian and trustee to move him or her to a more restrictive setting.
Mr Winninger: We have our own amendment to follow and it --
Mr Sterling: Yes, I saw the amendment. It is a little easier than the existing subsection 65(2). Instead of getting permission, if you're not willing to accept the deletion of it, wouldn't it be a better thing to have just some kind of notification and then let the public guardian take a positive action, if he decided, so that there's not a delay, there's nothing --
Mr Winninger: I realize our amendment, subsection 65(3), is not officially before you right now, but does not that amendment address your concern?
Mr Sterling: Why are we burdening the public guardian and trustee in family situations that are -- there have probably been 200 decisions like this made today across Ontario where Alzheimer's disease has progressed to such a state that they have to take grandma off the fifth floor, put her down on the third floor, and the corridor doors to the balcony are locked on the third floor. Who are we trying to protect here? Are we really protecting anybody in this?
Mr Winninger: Aren't we simply providing a safeguard in a situation where it may be that certain rights will be taken away from the individual?
Mrs Sullivan: I really think the entire section should be struck out. Whether you are an attorney operating under a power of attorney, whether you are a guardian, whether you are a statutory guardian or whether you are the public guardian, we have now a guardianship plan already filed. We have the power of attorney file. Now we are going back to the PGT to ask permission to do what we are supposed to be doing.
This would, by example, mean that for a person who is being cared for at home, with some attendant care perhaps, or by the family, permission would have to be obtained from the public guardian and trustee when the family member who happens to be the statutory guardian says: "I can no longer provide that care and I need the nursing care to ensure that my parent is being looked after appropriately. I cannot do the tube feeding," or whatever; or if that person is already within a nursing home or hospital setting and must move from an area that is open to an area that may be more restrictive, because the floor is closed or there are other security measures, so the Alzheimer patient can't be found six miles from the place, or where those restrictive settings may include things like security people.
I just think it's absolute nonsense to say we have to have permission once we have a validated power of uattorney or once we've been named as guardian. Why do we need additional permission?
Mr Winninger: Maybe I can help shorten things by saying that you make some plausible arguments. Perhaps if we call a five-minute recess, we might be able to resolve this issue.
The Acting Chair (Mr Stephen Owens): Do we have consent for a five-minute recess? Agreed. The committee is adjourned for five minutes.
The committee recessed at 1648.
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The Chair: I call this committee back to order. We've received a response from the House leaders and it states:
"Dear Mr Cooper:
"Thank you for your letter of September 3, 1992. The House leaders have agreed to alter the order of the House to allow amendments to be filed until 4 pm on September 16, 1992.
"Sincerely,
"Dave Cooke, Ernie Eves and Murray Elston."
Mrs Sullivan: I guess we'll be here until 3 o'clock in the morning that night too.
The Chair: Quite possibly.
Mr Sterling: What day is that?
The Chair: It's a Wednesday.
Mr Sterling: I'm busy that night.
The Chair: I'm sure you'll have the appropriate substitution slip in.
Further discussion on subsection 65(2), the Liberal motion?
Mr Winninger: We've certainly had an opportunity to reconsider our position in this matter, and in order to maintain the spirit of cooperation that's characterized these proceedings thus far, we'd be prepared to accede to the Liberal motion.
Mrs Sullivan: We appreciate that.
Motion agreed to.
Mr Winninger: We'll withdraw the next government motion for subsection 65(3).
The Chair: Subsection 65(2)? You've struck out -- so on the government reprint, subsection 65(2).
Mr Winninger: On the government reprint, yes, that would be struck out, and we're withdrawing our motion.
Mrs Sullivan: Are we at section 66 now?
The Chair: No. You're withdrawing subsection 65(3)?
Mr Winninger: Yes, we are.
Could I just have the floor for a moment to note something for the benefit of legislative counsel? There'll have to be a consequential amendment to section 66 as a result of our vote on the earlier section.
The Chair: Okay, thank you. Now we go to the government reprint 70(1). Agreed? Carried.
Government reprint subsection 70(4). Agreed? Carried.
Mrs Sullivan: I'd like to move back to section 68 for a clarification. This is in respect to the application to appoint a guardian of property. Paragraph 68(1)(c)1 requires that the public guardian and trustee certify that he "has assessed the proposed guardian."
I'm very concerned about the use of the word "assess" here because the sense of the word "assess" in this bill relates to an assessment of capability. I don't believe that is what the guardian should be doing. I think we should have a change here. I could make the change or the government could make the change, but I think we need a change in that word.
Mr Fram: Yes, that should be "considered the appropriateness."
Mrs Sullivan: Yes.
Mr Winninger: Sorry, I was just having a conversation with legislative counsel about an earlier section, but we admit here that there's a misprint or at least a mistake.
Mr Fram: It should be "considered the appropriateness of the proposed guardian."
Mr Winninger: Perhaps we could stand this down and make the required change to the subsection.
Mrs Sullivan: I don't have a motion yet. We can bring one, but I wanted to raise it because I think there's a problem there.
The Chair: Thank you. Now we'll proceed to government reprint 71(1). Agreed? Carried.
Government reprint 71(3). Agreed? Carried.
Government reprint 72(1) Agreed? Carried.
Government reprint 73(1). Agreed? Carried.
Government reprint on the French version 74(1). Agreed? Carried.
Mr Owens: You didn't want to read that?
Mr Winninger: It doesn't need to be read.
The Chair: Okay, PC motion on clause 75.1(1)(e).
Mr Sterling moves that subsection 75.1(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following:
"(e) attorneys under powers of attorney for personal care that have been accepted for registration under section 50, and subsequently recorded in the register under (d), which have been revoked."
Mr Sterling: I think the reason for this is to know who's been in charge in the past and perhaps, for some reason, why that person shouldn't be reintroduced as the power of attorney for personal care in the future. I think that's the reasoning behind it.
Mr Winninger: I don't quite understand the reason for the amendment, but if Mr Fram does, perhaps he could clarify whether or not it's required.
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Mr Fram: Subsection (4) of this section says, "The public guardian and trustee shall update the information contained in the register whenever he or she receives new information referred to in subsection (3)." Now, since that would be a person who would be an attorney under a power of attorney for personal care that would be in the register that would be validated or registered powers of attorney, if the information was that this authority was terminated or changed, then the register, it would seem, would reflect that. So I don't see what he is attempting to do.
Mr Sterling: I think the reason I put it in was this: If there was an impression that there was a power of attorney for personal care out there and that it had been validated, and a relative came in to a health care provider and said, "Phone the PGT and find out about this validated power of attorney," and the validated power of attorney had in fact been revoked, how does the health care provider try to chase down who's responsible or who he can go to to try to make a decision?
Mr Winninger: Are you talking about the same relative for which the power was revoked or another relative inquiring into whether a power had been revoked?
Mr Sterling: I'm talking about the health care provider and really knowing what's gone on.
Mr Winninger: If subsection 75.1(4), which requires the PGT to update the information, doesn't answer your concern, why wouldn't you seek to add further amendments to subsection (1) for all of those, for example, attorneys who have been validated under sections 49 or 50?
Mr Fram: I'm unclear as to what problem we're solving. If the question at the treatment facility is, "Does X have a validated power of attorney or a power of attorney that's registered?" the answer can be obtained from the public guardian and trustee's register. If the question is, "Does he now have or has he ever had a validated power or registered power?" the answer won't be found in the register. That's the answer that the -- it's sort of like all of these information questions: "Do you allow it to lie there and be publicly accessible, even though there's no validated power now or registered power now?" The answer here is no, and it's probably because that information itself is not vitally needed by anybody.
Mr Sterling: I don't see the difference under sections 49 or 50, and I'm not sure why I just put section 50 in there. I'm trying to remember what the Canadian Bar Association said about this, so I'm only speculating.
The only other concern you might have is that if there wasn't any power of attorney validated at that time, and a relative came in who said, "I think you should do this or that," and it had been revoked with the selfsame relative, then the health care provider would be, I guess, guarded in terms of taking advice from that relative or that person. I think that might have been the rationale behind it.
Mr Owens: Norm, are you maybe looking at something around time sensitivity, like how long it takes for the information to be transferred to the register so that it would be available to institutions?
Mr Sterling: No, it's not the time thing. I think it was the latter concern that I just expressed, and that is that sections 49 and 50, validated powers of attorney -- we're talking about the more extreme situations under those kinds of powers of attorney, where you've giving the attorney some heavy responsibilities and that kind of thing. The health care provider who is having to make a decision about the treatment is going to be, in the absence of a power of attorney, or even if there was an application -- I guess the PGT would tell then. I would assume the PGT would still know that there was a former revoked power of attorney.
Mr Fram: That wouldn't be part of the register. There are all sorts of information that could -- when somebody comes in and claims authority under the Consent to Treatment Act, there are certain safeguards in there -- that the person isn't in conflict and sees no reason why the person would object to his or her making the decision. There are all sort of things. A revocation by itself may simply mean the person thinks he's not going to have any more spells, he has full capacity and it's not a difficulty between himself and the attorney. So we really don't know why.
Mr Sterling: I'm going to have to withdraw the amendment at this time. Maybe the clerk can get me the CBA brief so that I can have an opportunity to re-read it.
The Chair: Would you like it withdrawn or stood down?
Mr Sterling: Perhaps you could stand it down until I have an opportunity to look at the brief.
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The Chair: Do we have unanimous consent to stand this one down? Agreed.
Okay, Liberal motion on subparagraph 75.1(3)2i.1.
Mrs Sullivan: I'm not going to put forward that motion, Mr Chair.
The Chair: Thank you.
Government reprint, subsection 76(1). Agreed? Carried.
Government reprint, subsection 76(2). Agreed? Carried.
Government reprint, subsections 76(3) to (6). Agreed? Carried.
Government reprint, subsections 77(1) and (2). Agreed? Carried.
Government reprint, subsection 78(1). Agreed? Carried.
Government reprint, subsections 78(2) to (6). Agreed? Carried.
PC motion on subsection 79.1(7).
Mr Sterling: I'm told by legal counsel that this is the legal status. All it does is state what happens anyway, so I'm going to withdraw that.
The Chair: Thank you.
Mr Sterling moves that section 80 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following:
"80..., except in those circumstances where an alternate mechanism for arbitrating disputes is set out in a power of attorney."
Mr Winninger: It seems to me on the surface that this is unobjectionable but not required. If the process of arbitration is set out in the power of attorney, essentially you'd be empowering the individual grantor of the power of attorney to determine how disputes will be resolved. We don't necessarily think it's necessary, but I don't think there's any harm in it either. I'll let Mr Fram speak to that as well.
Mr Fram: You'll note that the public guardian and trustee is only given a duty to attempt to mediate. If the parties themselves don't want to mediate or they have another alternative, then the provision would be useless in any event.
Mrs Sullivan: No, it says "shall mediate."
Mr Fram: That's right, and "mediate" means to get people to agreement, if you don't get past, "We've got an arbitration provision" or "Go, my child, with blessings."
Mr Winninger: We're all agreed, I think, that the mediation is not binding; it's non-binding.
Mr Sterling: But the power of attorney might provide for a binding mechanism.
Mr Fram: There's no harm in it. I don't think there's any harm in the amendment; I just think it's unnecessary.
Mrs Sullivan: Agreed.
Mr Winninger: Agreed what? That we're cluttering up the act with unnecessary provisions?
Mrs Sullivan: I think if it doesn't cause harm, it may in fact improve it for some people in some circumstances. If a mother has given a power of attorney that is shared by two people, and says, "However, if Sarah and Bob disagree, then Sally shall make the final decision," why not put it in? Then they don't have to go to the PGT.
Mr Owens: I guess my question would be in terms of making the settlement binding. How would you go about doing that to ensure that Sally and Bob or Jane and whoever --
Mrs Sullivan: It doesn't matter.
Mr Owens: How would you ensure that the mediated settlement in fact became the practice?
Mrs Sullivan: That's already in the power.
Mr Winninger: Could I suggest that the whole purpose of alternative dispute resolution is to try to deal with it outside of the courts, if you will, and if you can't resolve the issue through ADR, then you go the court or tribunal that's appropriate that does have binding power. I think what Mr Sterling is doing is setting out an alternative mechanism sort of coequal with mediation and it's not non-binding and could be contemplated under the existing wording anyway.
The Chair: Mr Sterling, could you please re-read the motion in?
Mr Sterling: I'm going to withdraw my previous suggestion of legislative counsel and achieve the same thing.
The Chair: Mr Sterling moves that section 80 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following:
"(2) Subsection (1) does not apply if a power of attorney provides for another mechanism for resolving disputes in the circumstances."
Mr Winninger: It sounds like cleaner and better drafting, but it doesn't change our position on the principle. So I suppose, given that there's no harm in it and given that you seem to prefer to have that in there, I don't think we have a problem supporting it.
Motion agreed to.
The Chair: Okay, Liberal amendment to subsection 81(2).
Mrs Sullivan: Section 81 indicates that an advocate isn't required to meet with a person to explain a matter to him or her if the person refuses to meet. My amendment would entitle the person to refuse to meet with the advocate.
Interestingly enough, if we go back to our previous discussion with respect to the certification of the power, I indicated that there was an option here for the PGT to proceed if there was a refusal. The argumentation that was given at the time was that the PGT couldn't act, but in fact the bill provides that the advocate doesn't have to meet if the person refuses, so we're automatically into court. But I think we should also acknowledge that the person has the right to refuse to meet.
The Chair: Would you like to move your amendment?
Mrs Sullivan: Oh, sorry, I thought I did.
The Chair: Mrs Sullivan moves that section 81 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"Entitlement to refuse
"(2) A person is entitled to refuse to meet with an advocate."
Mr Winninger: It may just be stating the obvious, but we don't have any problem with that amendment.
Motion agreed to.
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The Chair: Government reprint clause 82(1)(a). Agreed? Carried.
Government reprint clause 82(1)(a.1). Agreed? Carried.
Government reprint subsection 82(3). Agreed? Carried.
PC amendment on section 83.1.
Mr Sterling: I withdraw that motion, Mr Chairman.
Mr Winninger: Too bad. We liked that one.
Mr Sterling: That's why I withdrew it.
The Chair: Okay, Liberal motion on subsection 83(2).
Mrs Sullivan moves that section 83 of the Bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"Consultations
"(2) Before making regulations, the Lieutenant Governor in Council shall consult with representatives of persons who may be affected by the regulations."
Mrs Sullivan: One of the things that was extremely evident, particularly in the last two weeks of public hearings, was that there's enormous concern about the aspects of these bills which will be invoked through regulations granted under the bills and the necessity of discussion with people who are involved as consumers, as experts in the field, as deliverers, as institutions that will be putting the effect of the law into place. We received no commitment.
This motion and the next motion provide both a time line and a requirement for consultation before the regulations are made and before the act is finally proclaimed and put in place. The purpose of the amendment is to bind the government to discussions and full consultation in the regulatory process with all stakeholders.
Mr Winninger: As Ms Sullivan might anticipate, this is completely unacceptable. The language is so broad that it's virtually unprecedented. Everyone knows that there has to be consultation in order to make implementation of the legislation work, that there's no benefit to government in having regulations that are unworkable, that consultation with representatives of persons who will be affected will take place. I can't understand why this has been floated up, other than as a trial balloon, and I would pop it.
Mrs Sullivan: This is being placed before the committee for serious consideration because it came directly from and expresses the views of stakeholders who appeared before the committee with respect to this and the other bills.
These bills, as we know, are companion bills, one affects the others, and whether a person is a health care practitioner, a nursing home operator, a senior citizen who may represent an organization which will be involved in doing educational work or communications work in association with the implementations of these bills or who may want to provide advice to the government with respect to the regulations, this is a resolution that would bind the government to conduct those consultations.
The singular fear that was expressed in the last two weeks of public hearings was that through the course of these bills, there was a sense of rush. The 200 amendments, while improving some aspects of the bill, indeed create other problems and in some cases were unworkable and in other cases were dangerous.
Those issues have been brought quite clearly before the committee, and the people who appeared before the committee were making demands that a new consultative process in terms of the drafting of regulations under this act and under each of the acts be required. In my view, it should be required statutorily.
Mr Winninger: I would just respond by saying that the government has, for the past 10 years I believe, been consulting widely with consumers, with professionals, with experts and with providers, and why would it stop now? I think the language of this subsection is extremely broad and unnecessary. I'm confident that the consultation, now that it has been demonstrated and engaged in in the past, will continue in the future to make these regulations work.
Mr Sterling: I thought it had stopped two years ago. This is quite a surprise to me.
Mr Winninger: That's when we took the reports off the shelf and decided to get on with them.
The Chair: Further discussion? Seeing none, we'll proceed to the vote on the Liberal motion on subsection 83(2).
Motion negatived.
The Chair: Mrs Sullivan moves that section 84 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"Limitation
"(2) Despite subsection (1), this act shall not come into force before the first anniversary of the day on which it receives royal assent."
Mrs Sullivan: The reason for this amendment is once again to provide a minimal time line which will be reasonable for consultation with respect to the regulations; but additionally, to develop the implementation plan and bring forward the funding, not only in the planning stages but in the actual implementation stages, make provision for staffing and for full consultation with respect to those issues, whether it's costs, whether it's staffing or whether it's the actual process of operation.
Additionally, even the preparation of forms that are required under this act will require some consultation. I suggest to you that many of these forms will have to be understood not only by capable people and lawyers, but by people who have a lesser capacity. Maybe lawyers should be, but I think that a minimal --
Mr Sterling: It's starting to get interesting in this amendment.
Mrs Sullivan: The minimum time line, Mr Chairman, is there for a purpose: to ensure that the work is done adequately, to ensure that it is not rushed and to ensure that the funding is in place, that the staff is in place and that the public knows precisely what funding and what staff are in place. We've heard today that in fact no money has been allocated and that the government has no idea of what the impact in either funding or staffing requirements will be as a result of this act.
Mr Sterling: I have some problems with postponing the implementation of all of this act for any period of time, because I'd like to see particularly unvalidated powers of attorney for personal care come into play tomorrow. So I'd ask the question: Under section 84, I would assume you have the power to proclaim different sections at different times. I'd like an answer to that question.
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The second question I have is, can you foresee proclaiming the sections to permit people to create or to write invalidated powers of attorney for personal care, even though they will not have the right to validate them at that time because that will take some administrative structure to set up?
Mr Winninger: As far as your first question is concerned, Mr Sterling, I think you probably well know the answer to that. Sections can be proclaimed effective at different points in time.
As far as the second one is concerned, decisions will have to be made in that regard as to what's feasible and what isn't at what particular time. These decisions will have to be made.
Mr Sterling: Could I ask from you, the parliamentary assistant, when we get into committee of the whole House and we're having a discussion on this bill, that you let us know at that time what you're planning has set out in terms of the timing, when people can start to expect to have a form to start?
Mr Winninger: I can certainly undertake to convey your concerns to the minister in that regard.
Mrs Sullivan: Earlier today the parliamentary assistant indicated that there'd be no funding flow in terms of planning for the implementation of this bill, and by implication that means that no new staff or staff changes with respect to the implementation of this bill have occurred. In other words, I think we probably have Steve Fram on ministry staff and that's about it.
I don't know if you have anybody else working with you in your department, but it appears that is in fact what the government's action to date has been, that beyond the legislative drafting, there has been no planning and no impact analysis of costs of staff requirements. The parliamentary assistant also indicated earlier that he couldn't give any idea of what the costs in staffing requirements would be.
Mr Sterling has asked for a commitment that this kind of information would be brought to the House when the legislation is put before it. I think this really is a matter of some concern. The action in terms of preparation by the government has been limited. Expectations, however, are high with respect to the new requirements and new opportunities that this bill provides. To suggest that, even before passage of this legislation, implementation efforts and planning efforts aren't funded and staffed is really problematical.
Mr Winninger: With respect, Mr Chair, I don't agree with what Mrs Sullivan just said. While some preplanning can be undertaken, the cost consequences, the implementation and specific planning flow out of what the legislation looks like at the end of the day. I don't think it's fair to say that everything can be worked out before we know what final amendments are made in committee of the whole.
I've just been handed a document which I'd like to review for a moment.
The Chair: Further?
Mr Winninger: Sorry. No, I added what I wanted to add, but I will convey your concerns to the minister.
Mrs Sullivan: I think it would also be useful to have an analysis from the public guardian and trustee's office of what the implications are for that operation and how the requirements for the implementation of this bill flowing are seen. I've indicated that at rough count there are about 40 new duties for that office, and in fact there may be more, because we saw another one coming in at the last minute today.
I think this kind of analysis, including staffing requirements, including the training requirements for the staff, including the actual funding requirements, is going to be important. Where is the money going to come from, given the budget that's before the House? I think your estimates have been approved already. They'll have to come forward in supplementary estimates, but we'd like to know that information. We don't think the government has adequately considered those issues.
Mr Winninger: I certainly appreciate the concerns you've expressed today and I'll convey them to the minister.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the Liberal motion on subsection 84(2).
All those in favour? Opposed?
Motion negatived.
The Chair: This committee will stand recessed for five minutes so we can sort things out and so that when we go back, we don't miss anything. We stand recessed for five minutes.
The committee recessed at 1746.
1800
The Chair: I call this committee back to order. As we're sorting out, we'll go --
Mr Sterling: We can deal with one of my amendments, Mr Chairman, under section 75.1. I had asked to stand it down because I was going to propose it. I'm not going to put forward an amendment to that. Therefore, I would be prepared to carry that section.
The Chair: Okay. On the PC motion on clause 75.1(1)(e).
Mr Sterling: Did I read that one in?
The Chair: That has been moved.
Mr Sterling: I withdraw that amendment.
The Chair: You're withdrawing that?
Mr Sterling: Yes.
The Chair: Thank you, Mr Sterling.
The first one we have to go back to is the government reprint, subsections 10(1) and (2), as amended. Agreed? Carried.
Liberal amendment on subsection 17(5) moved by Mrs Sullivan.
Mrs Sullivan: I think we stood this down. This was with respect to the posting of security by a person who is the spouse, partner, child etc. We had some discussion and I believe the government was going to consider its approach to this. I think that's why it was stood down.
Mr Winninger: We have a suggestion that hasn't been reduced to writing by legislative counsel. Let me just convey that to you and you can tell me what you think of it. "The public guardian and trustee may dispense with the requirement for security if the value of the property is less than $50,000." The use of the word "may" leaves some discretion, where appropriate, to demand security.
Mr Sterling: I agree with that.
Mrs Sullivan: I think that's fine.
The Chair: If you agree with that, would you withdraw your motion, Mrs Sullivan?
Mrs Sullivan: Should I withdraw it before I redraft it? I'm not going to take any chances here.
Mr Winninger: Speak to counsel beside you.
The Chair: We'll stand this down until we get it redrafted.
Mrs Sullivan: Thank you.
The Chair: Okay, PC motion 17(7.01). This is a replacement.
Mr Winninger: We've got a written text now for this amended motion, and we're in accord with it. Is the opposition still in accord with it?
The Chair: Mr Sterling moves that section 17 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following:
"(7.01) Where the attorney under an incapable person's continuing power of attorney applies under subsection (1), the public guardian and trustee shall give or refuse a certificate appointing the applicant as the incapable person's statutory guardian of property within 30 days after receiving the application, unless the public guardian and trustee has reasonable grounds to believe that the grantor was not capable when the power of attorney was made."
Mr Sterling: I think what it does is it guarantees that the public guardian and trustee will react to what should be a fairly routine matter within a reasonable period of time so that people can get on with dealing with the affairs of the attorneyship if any need to do so.
Mr Winninger: We're in support of this amendment and I would suggest it carry.
Motion agreed to.
The Chair: Would Mr Sterling care to withdraw his motion on subsection 17(7.2)?
Mr Sterling: If you'd tell me what that motion was.
The Chair: This is the same thing.
Mr Sterling: I would like to withdraw that.
The Chair: Okay, go back to the government reprint: 17(7) and 17(7.1), as amended. Agreed? Carried.
PC motion on subsection 34(2).
Mr Sterling: I think my motion was to delete that section, and I thought we had already done so.
The Chair: No, that was stood down.
Mr Winninger: If I can confer for a moment.
Interjections.
Mr Winninger: "Death," did I hear? Yes, both death and termination of guardianship fall into this. We're prepared to accept, to use Mr Sterling's word "reluctantly," the PC motion.
Motion agreed to.
The Chair: PC motion on 39.1(1).
Mr Sterling: I withdraw that motion, Mr Chairman.
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The Chair: Okay, on the government reprint, 39.1. Agreed? Carried.
We have a government motion on 48(1).
Mr Winninger moves that subsection 48(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "subsections (3) and" in the fourth line and substituting "subsection."
Further discussion? Proceed to the vote. All those in favour?
Motion agreed to.
The Chair: Government reprint 48(1), as amended. Agreed? Carried.
Mr Winninger: He wants to go back to it.
The Chair: Do you want to go back to it right away?
Mr Wessenger: Yes.
Mr Winninger: I'll move it.
Mr Wessenger: No, it's Liberal.
Mr Winninger: Liberal? You move it.
The Chair: Mrs Sullivan moves that section 17 of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding the following subsection:
"(5.1) The public guardian and trustee may dispense with the requirement for security if the value of the property is less than $50,000."
Mrs Sullivan: I think we've had the discussion on that.
Motion agreed to.
The Chair: Would you like to withdraw your old motion on 17(5), Mrs Sullivan?
Mrs Sullivan: I will now withdraw my old motion on 17(5).
The Chair: Okay, the government reprint on 17(5). Carried, as amended? Agreed? Carried.
Interjections.
The Chair: Now we'll go to the Liberal amendment on clause 56(2)(a). It's a new one.
Mrs Sullivan: I will be putting forward two motions, and in doing so will withdraw the amendment which I had placed earlier to clause 56(2)(f).
The Chair: Mrs Sullivan moves that clause 56(2)(a) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by adding at the end, "and to provide for his or her shelter and safety."
Mr Winninger: We've had some discussion of this already. We just stood it down to redraft. I think this subsection is acceptable.
Motion agreed to.
The Chair: Mrs Sullivan moves that clauses 56(2)(e) and (f) of the bill, as reprinted to show the amendments of the Attorney General, be struck out and the following substituted:
"(e) make decisions about the person's health care, nutrition and hygiene and give or refuse consent on the person's behalf to treatment to which the Consent to Treatment Act, 1992, applies;
"(f) make decisions about the person's employment, education, training, clothing and recreation and about any social services provided to the person; and"
Mr Winninger: Again, the matter was stood down for redrafting and we're satisfied with the redrafting.
Motion agreed to.
The Chair: Government amendment on subsection 66(1).
Mr Winninger moves that subsection 66(1) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "to 65" in the first line and substituting "and 64."
Mr Winninger: It's a housekeeping amendment.
Motion agreed to.
The Chair: Liberal amendment on clause 68(1)(c).
Mrs Sullivan moves that paragraph (1) of clause 68(1)(c) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"1. The public guardian and trustee's certificate that he or she has examined and approved the plan of management, has considered the appropriateness of the proposed guardian and any arrangements for security and does not object to the appointment."
Mr Winninger: That's acceptable.
Motion agreed to.
The Chair: Anything further? Mr Wessenger, would you like to make a comment on Bill 109?
Mr Wessenger: Yes. I would suggest that we commence on Bill 109 at 10 o'clock on the morning of Monday, September 14.
The Chair: If there are no objections, this committee stands adjourned until Monday, September 14, at 10 am in room 151.
The committee adjourned at 1821.