Overview Overview � Law of guardianship Law of guardianship � � Historical background; equity; statute; Historical background; equity; statute; common law common law Guardianship and the Law Guardianship and the Law p � Exercise of authority by guardian Exercise of authority by guardian � Duties Duties Tracey M. Bailey Tracey M. Bailey � Bases of decision making Bases of decision making Executive Director Executive Director � Limits on authority Limits on authority Health Law Institute Health Law Institute � Case examples re exercise of authority Case examples re exercise of authority www.law.ualberta/centres/hli www.law.ualberta/centres/hli tbailey@law.ualberta.ca tbailey@law.ualberta.ca � AGTA AGTA � � Some potential issues Some potential issues Historical Background Historical Background Law of equity – Law of equity – fiduciary duty fiduciary duty � Court’s jurisdiction over mentally Court’s jurisdiction over mentally � Certain relationships have been Certain relationships have been � incompetent incompetent characterized as fiduciary by the courts characterized as fiduciary by the courts � Parens patriae Parens patriae � Guardian Guardian – – ward is one of those ward is one of those � � Unlimited � Unlimited Unlimited Unlimited � Duty to act with utmost good faith and D t Duty to act with utmost good faith and D t t t t t ith ith t t t t d f ith d f ith d d � � Extant Extant loyalty loyalty � Duty to act in best interests of dependent Duty to act in best interests of dependent � � Law of equity (not common law) Law of equity (not common law) � Duties of guardians in Duties of guardians in How WAS a guardian to How WAS a guardian to legislation legislation exercise his/her authority? exercise his/her authority? � Additional duties have been set out by Additional duties have been set out by � Dependent Adults Act Dependent Adults Act government in legislation government in legislation � s. 19(1) A guardian shall exercise the guardian’s s. 19(1) A guardian shall exercise the guardian’s power and authority power and authority � What does legislation say re duty of What does legislation say re duty of (a) in the best interests of the dependent adult, (a) in the best interests of the dependent adult, guardian vis-à-vis dependent person? guardian vis guardian vis guardian vis à vis dependent person? vis dependent person? vis dependent person? (b) in such a way as to encourage the dependent (b) in such a way as to encourage the dependent adult to become capable of caring for himself or adult to become capable of caring for himself or herself and of making reasonable judgments in herself and of making reasonable judgments in respect of matters relating to his or her person, and respect of matters relating to his or her person, and (c) in the least restrictive manner possible (c) in the least restrictive manner possible 1
How IS a guardian to exercise How IS a guardian to exercise Additional duties under AGTA Additional duties under AGTA his/her authority? his/her authority? AGTA AGTA � Guardian must inform adult of guardian’s Guardian must inform adult of guardian’s � � authority; and must inform adult of authority; and must inform adult of S. 35(1) A guardian shall exercise the guardian’s S. 35(1) A guardian shall exercise the guardian’s � authority authority important decisions made by the guardian important decisions made by the guardian In the represented adult’s best interests, In the represented adult’s best interests, (s. 35(4)(5)) (s. 35(4)(5)) (a) (a) Diligently, Diligently Diligently Diligently, (b) (b) � What limits exist? What limits exist? � In good faith, In good faith, (c) (c) � Guardian must follow any clear and relevant Guardian must follow any clear and relevant In a way that encourages the represented adult to In a way that encourages the represented adult to (d) (d) become, to the extent possible, capable of caring for become, to the extent possible, capable of caring for instructions in a personal directive (s. 35(2)) instructions in a personal directive (s. 35(2)) himself or herself and of making decisions in respect of himself or herself and of making decisions in respect of � Guardian must comply with any conditions, Guardian must comply with any conditions, matters relating to his or her person, and matters relating to his or her person, and limits or requirements set out in order (s. limits or requirements set out in order (s. In the least intrusive and least restrictive manner that, in In the least intrusive and least restrictive manner that, in (e) (e) the opinion of the guardian, is likely to be effective the opinion of the guardian, is likely to be effective 35(3)) 35(3)) rd parties challenge Case examples of exercise of Case examples of exercise of Can/must 3 rd Can/must 3 parties challenge guardianship authority guardianship authority decision of guardian? decision of guardian? � Insertion of feeding tube Insertion of feeding tube � Assessment of capacity of woman Assessment of capacity of woman � Elderly woman with early Elderly woman with early - - moderate stage of moderate stage of � application to court based on decision application to court based on decision- -makers makers dementia; dementia; not exercising authority in accordance with their not exercising authority in accordance with their � Showing further signs of deterioration; Showing further signs of deterioration; duties duties � 3 children appointed decision � 3 children appointed decision 3 children appointed decision makers BUT they are 3 children appointed decision-makers BUT they are makers BUT they are makers BUT they are � AND/OR a complaint made to a complaints AND/OR a complaint made to a complaints deferring to Dad; deferring to Dad; officer if reason to believe that guardian failing officer if reason to believe that guardian failing � Husband/Dad insisting on insertion of feeding tube Husband/Dad insisting on insertion of feeding tube to comply with order or duties, and failure is to comply with order or duties, and failure is � Woman doesn’t want feeding tube inserted Woman doesn’t want feeding tube inserted likely to cause harm to the physical or mental likely to cause harm to the physical or mental � Health care team doesn’t think it should be inserted Health care team doesn’t think it should be inserted health of the adult health of the adult � Health care team concerned about past history of Health care team concerned about past history of abuse abuse � PG may make application to court for temporary PG may make application to court for temporary protection protection Some related issues Some related issues - - what what Case example re sterilization Case example re sterilization about birth control? about birth control? � Guardians may have authority to make Guardians may have authority to make � AGTA seems clear that many birth control AGTA seems clear that many birth control � health care decisions health care decisions methods could be consented to as long as methods could be consented to as long as basis of decision is best interests of the basis of decision is best interests of the � One limit in AGTA: “health care” does NOT One limit in AGTA: “health care” does NOT include sterilization that is not medically include “sterilization that is not medically include “sterilization that is not medically include sterilization that is not medically adult adult adult adult necessary to protect health” necessary to protect health” � Case law in Alberta appears to support Case law in Alberta appears to support � � Case of Re Eve (1986) (SCC) Case of Re Eve (1986) (SCC) this: C.M.L (Re) this: C.M.L (Re) � Has been criticized Has been criticized – – but essentially enshrined but essentially enshrined in AGTA in AGTA � A change from the DAA A change from the DAA 2
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