A recent court case, Vancouver Island Health Authority v T.W., 2025 BCSC 2505, centred around a woman in her 70s who had received an Alzheimer’s diagnosis while living in the Vancouver Island Health Authority (“IH”) region. A year into her diagnosis, she made a Section 9 Representation Agreement (RA9) with her husband as representative, and her daughter as an alternate representative.
Background: Alzheimer’s, MAiD, and the “Death Plan”
Two years after her diagnosis with Alzheimer’s, the woman was assessed as eligible for Medical Assistance in Dying (MAiD), but the following year, she both stated she did not want MAiD, and was also deemed no longer eligible due to the progression of her dementia. Her husband overtly and repeatedly told family, friends and health care personnel that if his wife became ineligible for MAiD, he intended to end her life and then take his own life. This was referred to in the case as the “Death Plan”. It was determined that the wife never agreed to the Death Plan and was upset by it. The Death Plan was never legal under the Canadian MAiD regime. IH is a designated agency under Part 3 of the Adult Guardianship Act (AGA), which gives them certain obligations regarding the protection of vulnerable adults from abuse and neglect, including self-neglect. IH undertook an investigation in this case due to several concerns, including about the Death Plan. IH determined there was imminent risk of death or grievous bodily injury. Using its emergency powers under s. 59 of the AGA, IH removed the woman from the joint residence where she and her husband resided to a nearby hospital. IH prepared a support and assistance plan that included admission to a long-term care facility. Because the woman was assessed as unable to consent, and the first person in line who could give or refuse consent (RA9 rep – the husband) refused, IH was of the view that the only option forward to ensure the woman’s safety was to apply to the Provincial Court for a Support and Assistance Order (SAO) under the AGA because of concerns about the self-neglect. An SAO can include an order for admission to an available care facility, hospital, or other facility for up to one year. While the SAO was sought and renewed for a second year, IH also filed objections with the Public Guardian and Trustee for BC (PGT) regarding the husband’s fulfilment of his duties and obligations as a representative. The PGT recommended that IH consider seeking relief from the Court to address any future concerns that might arise, leading to the case at hand. The Court in this case noted that the AGA does not provide a mechanism for a viable long-term solution that would protect the wife from undue risk of harm. The PGT had declined to pursue a committeeship as well.
The RAA Application and Legal Framework
IH sought the following from the Court under section 30 of the Representation Agreement
Act (RAA): declarations that the husband is not a suitable representative, not qualified to be a Temporary Substitute Decision Maker, not qualified to provide substitute consent for admission to a care facility, and for an order changing the 2020 RA9 to remove the husband as a representative, to authorize the daughter to act as representative instead of the husband, and to add a granddaughter as an alternate representative if the daughter can no longer act. In making their decision, the court reviewed the duties and obligations of representatives, including the ethical decision-making process which is focused on the adult’s wishes, beliefs, and values, before best interests. The Court also reviewed the objection process under the RAA, as well as the Court’s powers to make an order confirming a change to or cancelling all or part of a Representation Agreement. The Court cited another Supreme Court of BC case, (Stockall (Re), 2023 BCSC 437) which used factors from an earlier case (Stewart (Re), 2014 BCSC 2321) which had to do with selecting an appropriate committee. In Stockall, two individuals were both representatives and attorneys under a Representation Agreement and an Enduring Power of Attorney. They each sought to have each other removed, and these factors were considered in deciding which person should remain as the adult’s representative/attorney, and which person should be removed. The non-exhaustive, non-prioritized factors include:
- Does the change sought reflect the adult’s wishes, “obviously when he or she was capable of forming such a wish”? – para 76
- Are immediate family members of the adult in agreement with the change?
- Is there conflict between family members or between the family and the adult? Who would be likely to consult with immediate family members about the appropriate care of the adult?
- Was the proposed representative previously involved with the patient? To what extent? (Usually family members are preferred.)
- What is their level of understanding of the adult’s current situation? Will they be able to cope with future changes of the adult?
- Will they provide love and support to the adult?
- Who is the best person to deal with the financial affairs of the adult? Will they ensure the income and estate are used for the adult benefit?
- Has there been a breach of a fiduciary duty owed to the adult, or has there been activity which diminishes confidence in that person’s abilities to properly handle the adult’s affairs?
- Who is best to advocate for the patient’s medical needs?
- Do they have an appropriate plan of care and management for the adult and the adult’s affairs and are they best able to carry it out?
- Would a division of responsibilities such as between the adult’s financial and legal affairs (their “estate”) and the adult’s healthcare and personal care (their “person”) serve the best interests of the adult? Or would such a division be less than optimal?
The inquiry is fact-specific, and a particular factor may or may not be applicable and may attract different weight depending on the circumstances of a case. The court also noted that the first factor, being the wishes expressed by the adult while mentally competent or lucid, is a significant factor in most cases – para 78.
Applying Stockall Factors to this Case, and Finding Husband Unfit
The Court found that most of the factors weighed in favour of changing the wife’s RA9 to remove the husband and to make the daughter the representative, and the granddaughter the alternate representative. The husband was found to lack insight into his wife’s cognitive and physical decline, leading to him making inappropriate demands on her participation in physical activities and causing her emotional agitation. He also unlawfully delegated his authority (let other people make decisions for his wife) and engaged in several serious privacy breaches, including sharing private information and sealed court documents about his wife on the internet. The daughter had been appointed as an alternate representative in both Representation Agreements the wife had made. She also repeatedly asked her daughter in confidence to advocate for her after she could no longer do so herself, including in the context of the Death Plan, which the wife did not agree with. The court noted that the daughter had always tried to remain involved with her mother’s care to the extent her father allowed, visiting her regularly. The court also considered her background in health care and social work training and experience. It also noted her and the granddaughter’s understanding and acceptance of the wife’s diagnosis and prognosis, as well as ability to advocate for her needs. Other family members were in support of the change (aside from the husband). Despite everything, the daughter showed willingness to continue to consult with her father concerning her mother’s care.
Takeaways/highlights from this case
- Representatives have duties that are clearly outlined in the RAA; failure to follow these duties can result in removal by the BC Supreme Court – These duties include: to follow an ethical decision-making process that involves prioritizing the adult’s reasonable current wishes; not to delegate any authority given to them in the RA other than certain investment matters; and not to disclose any information or records obtained in the exercise of their authority except as needed to perform their duties or as otherwise legally required.
- Representatives under a valid Section 9 Representation Agreement are first in line to be able to provide consent for admission to a care facility, if the adult is determined to be incapable and there is no committee of person. Read more about Consent for Admission to a Care Facility in BC here.
- Medical Assistance in Dying is something that must be requested by the patient themselves. The patient must, among other requirements, be making the request voluntarily, and mentally capable of informed consent – understand what MAiD involves and its effect. Read more about MAiD here.
- Health Authorities may take action if they determine that an adult needs support and assistance, which can include an application for a support and assistance order (SAO) authorizing the provision of services to the adult, if the adult is incapable of deciding not to accept the services proposed in the plan. The adult’s representative, attorney or guardian must receive a copy of the application and are entitled to be heard at the hearing of the application.
- After an objection is made about a representative to the PGT, a court application can be made to remove or add a representative, and the court may do so, taking into consideration several factors, including the “Stockall Factors”
- Nidus suggests that in future cases involving Representation Agreements, the factors should be amended to note the differing principles behind Representation Agreements versus Adult Guardianship/Committeeship – RAs are based on principles of self-determination, while Committeeship is based on the idea of ‘best interests’ of the adult. Hence, in cases involving RAs, the factors should be adapted to prioritize the adult’s current wishes where they can be ascertained and are reasonable, consistent with the ethical decision-making framework under s. 16 of the RAA, and the legislative requirement under s.32(2).1Section 32(3) of the RAA does open the door to a court making an order that overrides an adult’s wishes, instructions, values or beliefs if the adult is incapable, the order is in the adult’s best interests, and the court give reasons for making the order. However, along with a consideration of the overall intent of the legislature in establishing the RAA, this section should be read together with s. 32(2), which says the court must consider, in the same order of priority as under section 16 (2) to (4), the wishes, instructions, values and beliefs of the adult. In an RAA application, the adult has not necessarily been found incapable of managing themselves or their affairs by a court process – this contrasts with a committeeship situation. The RAA’s approach to capability is also different from the traditional view –stemming instead from its roots in grassroots law reform — to ensure that adults with cognitive difficulties have a legal alternative to adult guardianship. See: Sections 2, 3, 8 of the RAA.
- For example, the first Stockall factor which originally considered the adult’s wishes while “lucid” (see bullets above) could be altered as follows: “Does the change sought reflect the adult’s current wishes, and are those current wishes reasonable? If not, does the change reflect the adult’s wishes while capable?” We would then agree that this factor (in its amended form) ought to be a significant factor in most cases. In our view, this approach better respects the adult’s autonomy and dignity and is more legally correct, particularly where there has been no declaration of incapability by a court.