Part of my practice involves obtaining committeeships for adults (adult guardianships) who have lost mental capacity, which I discuss in this post http://www.bcheritagelaw.com/blog/estate-litigation/what-is-a-committeeship-and-why-you-might-need-one/. In the case of a committee application, sometimes the family doctor or another family member can offer evidence through affidavit about the vulnerable adult’s wishes. This evidence may be helpful for the Court in making a committee application, and helpful for the appointed committee (guardian) as they begin to make decisions for the adult.
With proper planning, a committee application is usually not necessary. However, your family members may live significant distances away, or have acrimonious relationships with each other, and thus not be fully aware of your wishes. If possible, it may be wise to have some significant discussion with your chosen decision makers (i.e. anyone you nominated in a Representation Agreement and/or Power of Attorney, family members, and those you suspect might cause some fuss) about your wishes, and to have some of those wishes legally documented. Here’s some topics to consider:
1. Do you have any views on where you want to live? Do you want to stay at home as long as possible? Do you wish to move in with particular family members, or do you want to live in a carehome with your friend? For example, if you live in Vancouver, but your children are in Nanaimo and Victoria, what is your preference, and why?
2. Who do you want to be able to visit? If there is family acrimony, for example, between your current spouse and your children from a previous marriage, do you want to give some directions about visitation? Are there close friends that your children might not know about because they live elsewhere? You might want to create a contact list and share it.
3. Are there any activities that are important to you, even if you are no longer able to fully participate? For example, you might be a member of your church choir for many years, and if the day should come where you are no longer able to participate, you would appreciate being taken to performances.
4. Religion is often a touchy subject, but if you have views, you should make them known while you can.
5. If you have an illness, and you think it may worsen, you may wish to discuss possible treatment options. For example, if you are diagnosed with cancer, and become incapacitated, what treatment (if any) do you wish to have? Family members might have conflicting views about what your views are based upon conversations at different times in your life, and might be unsure how to help you.
6. Do you regularly deal with certain professionals? Do you have a specific financial advisor or accountants? Do you deal regularly with a specific person at the bank? How are your finances organized? Where do you draw your income from?
7. Do you own anything outside of Canada? Did you buy speculative real estate on your last trip to Mexico, or do you have a pension from when you lived in Italy before you immigrated to Canada? Your family might not know about assets or income from outside of Canada, and might not be able to read the paperwork if they should find it later and you are no longer able to explain.
8. What legal documents are already in place, and have they been used? If one child has been granted a power of attorney, and used it at your direction, are there any decisions that might generate disputes later? For example, did you tell your daughter to sell the cottage and invest the proceeds in a specific way? Did you execute a Power of Attorney on or before August 31, 2011, which is silent on remuneration, but you have been authorizing your son to take a monthly amount for helping you? You may wish to consult a lawyer about having the document updated, or to have the decisions documented to prevent later disputes.

In addition to being important topics to discuss, many of these items can be documented in a carefully drafted Representation Agreement, Advance Directive, or Power of Attorney. Doing so may ease the burden on your family when trying to make difficult decisions, and give you some comfort that your wishes will be followed.

BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse), including important guidelines for determining legal parentage where a surrogate is involved. Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.

The surrogacy rules will apply if the potential surrogate and intended parent(s) enter into an agreement prior to conception for the surrogate to be the birth mother, for the surrogate to surrender the child at birth and not be a parent, and for the intended parent(s) to become the parent(s) when the child is born.

When the child is born, the intended parent(s) will be the parent(s) if:

1. No one withdraws from the agreement prior to birth,

2. When the child is born, the surrogate gives written consent to surrender the child to the intended parent(s), and

3. The intended parent(s) take the child into their care.

The surrogacy agreement is not consent, but can be used as evidence of intentions if there is ever a dispute after the child is born.

If the surrogate and the intended parent(s) make an agreement prior to conception that they will parent together, they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born. This creates the potential for a child to have more than 2 legal parents.

Note that the new rules do not distinguish between a “gestational surrogacy” where the surrogate carries the child but is not biologically related to the child and a “traditional surrogacy” where the surrogate is also the biological mother.

If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.

BC’s new Family Law Act will – for the first time in BC history – set rules about parentage when children are conceived using assisted reproduction (any form of conception other than sexual intercourse). Although the Act was passed November 24, 2011, it is largely not in force yet, and the government estimates it will take 12 to 18 months to implement the law.

The new Act sets out three important guidelines for determining legal parentage where a sperm, egg or embryo donor is involved (see the separate post on rules where a surrogate is involved):

1. A sperm, egg or embryo donor “is not, by reason only of the donation, the child’s parent”, cannot be declared as a parent only on the basis of the donation, and is only a child’s parent if found to be a parent under the new rules.

2. The child’s birth mother is the child’s legal mother.

3. The person who was married to or in a marriage-like relationship with the birth mother (for this blog, the “spouse”) when the child was conceived is also the child’s legal parent, unless the spouse did not consent to be the parent or withdrew consent to be the parent.

If the donor, the birth mother, and the birth mother’s spouse make an agreement prior to conception that they will all be the parents of the child, then they will all be the legal parents of the child born. The agreement is deemed to be revoked if a party withdraws from the agreement or dies before the child is born.

This creates the potential for a child to have more than 2 legal parents.
If there is a dispute or any uncertainty about whether or not a person is a parent, a court application can be made to determine parentage.

The new Act also amends the Vital Statistics Act so that the child’s statement of birth must be completed by the parents (as defined above), and the birth certificate subsequently issued must not show that the child was born as a result of assisted reproduction.

Generously funded by the Law Foundation of British Columbia, this report is the first comprehensive and internationally comparative study of elder and guardianship mediation in Canada.

As a person ages, mediation may be used to resolve disagreements in the context of estate planning, financial planning, organizing caregiving, developing a housing plan, discussing lifestyle choices—varied circumstances where an older person may involve family or other support people in problem-solving, especially where there is a desire to resolve a legal matter without going to court.  Anticipated changes to guardianship law in BC include mandatory mediation in certain circumstances.

Elder and guardianship mediation is a new but growing area of practice.  The work gives rise to complex ethical and practical questions in regard to maximizing the ability of the older person to participate in decisions about his or her future as well as ensuring age-based discriminatory assumptions and values are not affecting the decision-making process.

“As a province we are now at the precipice of proclaiming new legislation governing adult guardianship mediation and also of tremendous growth in the field of elder mediation, based on demographics,” says Executive Director Jim Emmerton.  “In order to move forward practitioners, policy-makers and educators require access to comprehensive information on elder and guardianship mediation.  This report fills that need.”

This large report includes consultation feedback from elder mediation leaders from across North America and compares lessons learned from key pilot guardianship mediation programs in other jurisdictions in the US and Canada.  The report concludes with recommendations for training and standards for elder and guardianship mediators, ethical standards for practice, mediation models and styles, as well as for the design and development of a court-connected adult guardianship mediation program in BC.

The report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianship-mediation.

The Canadian Centre for Elder Law strives to be a leader in law reform by carrying out the best in scholarly law reform research and writing and the best in outreach relating to law reform as they relate to older adults.