Changes to the Certificate of Incapability Process under Part 2.1 of the Adult Guardianship Act in force December 1, 2014

The Certificate of Incapability process under the Patients Property Act was investigated by the Ombudsperson in her February 2013 report No Longer Your Decision: British Columbia’s Process for Appointing the Public Guardian and Trustee to Manage the Financial Affairs of Incapable Adults. The Ombudsperson made 28 recommendations directed at health authorities, the Public Guardian and Trustee of BC, the Ministry of Justice, and the Ministry of Health to enhance the fairness of the process of issuing certificates of incapability. Many of the recommended changes were brought into force on December 1, 2014 under Part 2.1 of the Adult Guardianship Act and Regulations. The new framework will provide significant procedural protections for the adult, including enhanced notifications, standards for conducting assessments, and clarity on what factors must be considered prior to issuing a certificate of incapability.

As part of the new legislative framework, the Statutory Property Guardianship Regulation (under the Adult Guardianship Regulation)  sets out which health care providers are qualified to conduct the functional component of the assessment to determine incapability for managing financial affairs, in addition to physicians. Several disciplines are listed as health care providers that may be qualified, and include registered social workers, registered nurses and nurse practitioners, registered psychiatric nurses, registered occupational therapists, and registered psychologists, provided they meet the standards, limits and conditions set by their respective regulatory colleges.

This new regulation will permit registered occupational therapists to act as qualified health care providers for the purpose of conducting the functional component of a financial incapability assessment and to provide an opinion about the adult’s capability. The regulation requires that COTBC establish standards, limits or conditions that would apply to registrants who are acting in this capacity.

On October 24, 2014 the COTBC Board approved the scope of practice statement regarding financial incapability assessment. Occupational therapists are now permitted to act as qualified health care providers for the purpose of conducting the functional component of a financial incapability assessment and to provide an opinion about the adult’s capability. However, the current limits and conditions require additional education and maintenance of competence.

The Board’s decision reflects COTBC’s accountability approach that requires occupational therapists to practice within the limits of their personal and professional competence. The limits and conditions are consistent with Ministry of Health expectations and, as much as possible, with the approach being taken by other health regulators.

At this time, Health Authorities are designating the staff that will act as qualified health care providers in their organizations. A mandatory online training course is available to ensure the safe implementation of this new regulation.