In an earlier
post, we talked about the case of Margaret Bentley, an 82 year
old woman with advanced Alzheimer's disease, whose family
had initiated litigation to prevent her care home from
force-feeding her. Earlier this week, the Supreme Court of British
Columbia released its 44-page decision in the case.
In summary, the BC Supreme Court found that:
The Health Care (Consent) and Care Facility (Admission)
Act (the "HCCCFA Act") makes it clear that health
care must not be provided without obtaining consent.
Mrs. Bentley was capable of making the decision to accept
nourishment and assistance with feeding and demonstrated her
consent through her behavior, by accepting food and liquids.
Even if Mrs. Bentley was not capable of making the decision to
accept assistance with feeding, this type of assistance is not
"health care" within the meaning of the HCCCFA Act, and
is instead considered a form of personal care or basic care.
Accordingly, the procedures in the HCCCFA Act for obtaining consent
to health care did not apply.
Even if assistance with feeding was considered a form of health
care, the health care could not be refused under the HCCCFA Act.
Since Mrs. Bentley had no personal guardian, no representative and
no adequate instruction in an advance directive, Mrs. Bentley's
temporary substitute decision maker (her husband or children) would
be authorized to give or refuse consent on Mrs. Bentley's
behalf. However, where the health care is necessary to preserve
life (as it was in this case), the decision to refuse consent can
only be made if it is medically appropriate. There was no
substantial agreement among Mrs. Bentley's health care
providers that the decision to refuse consent would be medically
appropriate, so Mrs. Bentley's substitute decision maker would
not have legal authority to refuse consent to the health care.
Withdrawing oral nutrition and hydration for an adult that is
not capable of making that decision, would amount to neglect within
the meaning of the Adult Guardianship Act.
More information on the decision can be found in several recent
news articles, including this article in the National Post. As expected,
commentary on the decision indicates that there are mixed opinions
as to whether the right decision was reached.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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