Alberta Law Reform Institute Publishes Report for Discussion on Interprovincial Recognition of Substitute Decision-Making Documents
January 29, 2018
BY Emily Amirkhani
The Report for Discussion
The Alberta Law Reform Institute (ALRI) published its report for discussion “Inter-Provincial Recognition of Substitute Decision-Making Documents” in December 2017. The report considers whether the Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act (the Uniform Act) is suitable for implementation in Alberta. The Uniform Act was adopted by the Uniform Law Conference of Canada in August 2016.
The report sets out 15 preliminary recommendations aimed at tailoring the Uniform Act to Alberta’s legislative landscape. For example, the report suggests that Alberta implement the option within the Uniform Act which distinguishes between formal and essential validity, as it is consistent with Alberta’s current legislation for interprovincial will recognition. Formal validity relates to formalities required to make a substitute decision-making document valid, while essential validity relates to the existence and extent of powers granted by the document.
Similarly, the report suggests that the definition of “substitute decision-making document” provided in the Uniform Act is unsuitable for implementation in Alberta because it requires that such a document delegate authority to a specific person, while it is possible to make a substitute decision-making document in Alberta without specifying a person. Instead, the report recommends the definition be amended, if implemented, to include documents which either do, or do not, specify a person.
The report further notes that implementation of the Uniform Act, as written, could allow recognition of non-enduring powers of attorney, which may be inconsistent with Alberta’s current land titles policies. Instead, the ALRI suggests that the Uniform Act be amended not to extend to non-enduring powers of attorney if implemented in Alberta. More information about enduring powers of attorney in the Western provinces can be found in the report “Enduring Powers of Attorney: Areas for Reform”, prepared by the Western Canada Law Reform Agencies with the contribution of the BC Law Institute (BCLI) and the Canadian Centre for Elder Law.
The ALRI’s report also considers issues of jurisdiction, public policy exceptions, remedies, third-party liability, and acceptance and refusal of substitute decision-making documents.
The report invites the public to respond to “one, a few or all of the issues raised” with comments to be considered by the ALRI Board before it makes its final recommendations. The deadline for public comment is May 1, 2018.
Interprovincial Recognition in BC
In BC, there is some recognition of interjurisdictional substitute decision-making documents. Both the BC Power of Attorney Act and Representation Agreement Act recognize documents created in other jurisdictions which comply with prescribed requirements, subject to limitations in their respective Regulations. The Power of Attorney Regulation and Representation Agreement Regulation both specify that the document must be made by a person who was, at the time of its making, ordinarily resident in Canada, the USA, the UK, Australia, or New Zealand, and require that it be accompanied by a certificate from a lawyer permitted to practice in the jurisdiction where the document was made. In addition, the BC Patient’s Property Act provides that the person who manages or administers the estate of a person who resides in another province, but has estate in BC, may be appointed as a committee of the estate in BC by the Lieutenant Governor in Council. The BCLI reviewed BC’s interjurisdictional recognition of adult guardianship orders in its 2005 report “The Recognition of Adult Guardianship Orders from Outside the Province.”
