02/06/2013 04:12 EST | Updated 04/08/2013 05:12 EDT

BC Public Guardian And Trustee Rapped For Treatment Of 'Incapable' Adults: Ombudsperson

VICTORIA - Some British Columbians could be declared "incapable" by health authorities and lose the right to make their own financial and legal decisions under an outdated law and flawed investigative process, says the province's ombudsperson.

Kim Carter released 28 recommendations Wednesday following an investigation into adult guardianship in this province.

Public guardians or trustees are often appointed when an adult has failed to plan in advance before becoming incapacitated or has nobody, such as a family member, to make decisions on their behalf.

A public guardian or trustee assumes control of an individual's financial and legal decisions following an investigation and after a health authority issues a certificate of incapability or by an order through the Supreme Court of B.C.

Carter said the Patients Property Act, which authorizes those actions, is similar to a law that was on the books in 1962.

"The process has been recognized for a number of years as being outdated and failing to meet the requirements of a fair and reasonable procedure," said Carter in her report.

"It has not changed significantly in the past 50 years. It reflects not only an older approach to the treatment of mental health issues but also a pre-Charter of Rights and Freedoms approach to respecting the procedural rights of individuals."

Of Carter's 28 recommendations, 24 have already been accepted, one has been accepted partially and three have not been accepted.

Already, the Public Guardian and Trustee, which looks after children and youth under 19 as well as adults who require assistance, has agreed to give written notice to adults at the start of an investigation, something that was not previously done.

The Ministry of Justice will require individuals by July 2014 to undergo current in-person medical assessments and a functional assessment before a certificate is issued.

The ministry announced, though, that it is reviewing a recommendation that would allow adults to appeal a certificate decision to a tribunal.

Of the seven recommendations Carter's office identified as key, that's the only one that has not been accepted.

Carter's report said the Ministry of Health has agreed to develop a provincial training program for staff who conduct functional assessments and for health authority staff who issue the certificates.

Health authorities will also notify adults and families when they intend to issue a certificate. They will follow up to ensure those adults and families have received the notification and provide sufficient time to respond, the report said.

Health authorities will also provide adults and families in writing with the reasons for issuing a certificate.

Catherine Romanko, B.C.'s public guardian and trustee, agreed with Carter, saying in a statement the current law is outdated and lacks due process.

"Her assessment of the issues related to the process for protecting vulnerable adults from abuse, neglect and self-neglect was balanced, and I support many of the recommendations directed at the Public Guardian and Trustee," said Romanko.

She said her office is already taking steps to improve communication with adults and families involved in the certificate process.

But the proper resources and funding must accompany any legislative changes, she added.

Minister of Justice Shirley Bond said she has committed to implementing 12 of the 14 recommendations directed at her ministry.

She said most will be implemented by July 1, 2014.

The ministry will review and report on two of the recommendations it has not accepted within 18 months.

"Our government is committed to protecting vulnerable adults and as such we recognize the importance of having a modern and effective system of adult guardianship in place," said Bond in a statement.

Meantime, Bond said the provincial government is also strengthening the process that allows adults to become the legal guardians of children.

She said that on March 18, adults will be required to file an affidavit that provides information about themselves as well as information on past and current care of children.

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