Appendix C: Legislative Provisions Referred to in the Report

Appendix C: Legislative Provisions Referred to in the Report2017-03-03T18:30:49+00:00

Substitute Decisions Act, 1992, S.O. 1992, c.30

6.  A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 

8.  (1)  A person is capable of giving a continuing power of attorney if he or she,

(a)     knows what kind of property he or she has and its approximate value;
(b)      is aware of obligations owed to his or her dependants;
(c)      knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
(d)     knows that the attorney must account for his or her dealings with the person’s property;
(e)     knows that he or she may, if capable, revoke the continuing power of attorney;
(f)      appreciates that unless the attorney manages the property prudently its value may decline; and
(g)     appreciates the possibility that the attorney could misuse the authority given to him or her.

(2)   A person is capable of revoking a continuing power of attorney if he or she is capable of giving one.

Execution

10. (1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. 

Persons who shall not be witnesses

(2)  The following persons shall not be witnesses:

1. The attorney or the attorney’s spouse or partner.
2. The grantor’s spouse or partner.
3. A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.
4. A person whose property is under guardianship or who has a guardian of the person.
5. A person who is less than eighteen years old.

(3)  Repealed.

Non-compliance

(4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.

Capacity to give power of attorney for personal care

47.  (1) A person is capable of giving a power of attorney for personal care if the person,

(a)   has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b)   appreciates that the person may need to have the proposed attorney make decisions for the person.

 

Representation Agreement Act, R.S.B.C. 1996, c.405

Test of incapability for standard provisions

8. (2) In deciding whether an adult is incapable of making a representation agreement….all relevant factors must be considered, for example:

(a)     whether the adult communicates a desire to have a representative make, help make, or stop making decisions;
(b)     whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
(c)      whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;
(d)     whether the adult has a relationship with the representative that is characterized by trust.  

 

Income Tax Act, R.S.C. 1985, c.1 (5th Supp.)

Credit for mental or physical impairment

118.3 (1)  Where

(a)     an individual has one or more severe and prolonged impairments in physical or mental functions,
(a.1)    the effects of the impairment or impairments are such that the individual’s ability to perform more than one basic activity of daily living is significantly restricted where the cumulative effect of those restrictions is equivalent to having a marked restriction in the ability to perform a basic activity of daily living or are such that the individual’s ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy that
(i) is essential to sustain a vital function of the individual,
(ii) is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week, and
(iii) cannot reasonably be expected to be of significant benefit to persons who are not so impaired,
(a.2)    in the case of an impairment in physical or mental functions the effects of which are such that the individual’s ability to perform a single basic activity of daily living is markedly restricted or would be so restricted but for therapy referred to in paragraph (a.1), a medical practitioner has certified in prescribed form that the impairment is a severe and prolonged impairment in physical or mental functions the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted, but for therapy referred to in paragraph (a.1), where the medical practitioner is a medical doctor or, in the case of
(i) a sight impairment, an optometrist,
(ii) a speech impairment, a speech-language pathologist,
(iii) a hearing impairment, an audiologist,
(iv) an impairment with respect to an individual’s ability in feeding or dressing themself, an occupational therapist,
(v) an impairment with respect to an individual’s ability in walking, an occupational therapist, or after February 22, 2005, a physiotherapist, and
(vi) an impairment with respect to an individual’s ability in mental functions necessary for everyday life, a psychologist,
(a.3)    in the case of one or more impairments in physical or mental functions the effects of which are such that the individual’s ability to perform more than one basic activity of daily living is significantly restricted, a medical practitioner has certified in prescribed form that the impairment or impairments are severe and prolonged impairments in physical or mental functions the effects of which are such that the individual’s ability to perform more than one basic activity of daily living is significantly restricted and that the cumulative effect of those restrictions is equivalent to having a marked restriction in the ability to perform a single basic activity of daily living, where the medical practitioner is, in the case of
(i) an impairment with respect to the individual’s ability in feeding or dressing themself, or in walking, a medical doctor or an occupational therapist, and
(ii) in the case of any other impairment, a medical doctor,
has certified in prescribed form that the impairment is a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy referred to in paragraph (a.1),
(b)    the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2) or (a.3), and
(c)     no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1)) for the year by the individual or by any other person,there may be deducted in computing the individual’s tax payable under this Part for the year the amount determined by the formula
A × (B + C)
where
A
is the appropriate percentage for the year,
B
is $6,000, and
C
is
(a) where the individual has not attained the age of 18 years before the end of the year, the amount, if any, by which
(i) $3,500
exceeds
(ii) the amount, if any, by which
(A) the total of all amounts each of which is an amount paid in the year for the care or supervision of the individual and included in computing a deduction under section 63, 64 or 118.2 for a taxation year
exceeds
(B) $2,050, and
(b) in any other case, zero.

 

 

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