BC LAW INSTITUTE

By Tejas Madhur*

Recently, the British Columbia Law Institute (“BCLI”) released two publications that concern the protection of people in vulnerable circumstances, although they approach that objective in very different ways. One publication deals with regulatory reform in the health care occupational sector, and the other is a practice resource for lawyers and notaries that helps practitioners to protect clients from financial and psychological abuse at the hands of those around them.

UNDUE INFLUENCE RECOGNITION AND PREVENTION: A GUIDE FOR LEGAL PRACTITIONERS

Earlier this year, BCLI released a revised and updated version of its wellknown and frequently cited guide for lawyers and notaries on recommended practices in screening for possible undue influence that may taint drafting instructions they receive and could result in documents being substantively invalid. The new version of the guide has a shorter title: Undue Influence Recognition and Prevention: A Guide for Legal Practitioners. The title no longer refers to wills specifically, because the coverage of non-testamentary undue influence has been expanded along with other parts of the guide.

The original guide was developed with an interdisciplinary committee of very knowledgeable volunteers. In revising the guide, BCLI again had the assistance of an interdisciplinary volunteer committee that included two geriatric psychiatrists and a psychologist. The new guide contains additional information on cognitive impairment, dementia and the relationship between these conditions and susceptibility to undue influence.

Good practice in intercultural communications takes on even greater importance when dealing with the sensitive issues that usually surround situations in which undue influence may be present. The new version of the guide includes considerably more content on intercultural communications with Indigenous clients and clients from migrant and minority communities.

Another focus of the new BCLI guide is on safeguards in confidential video communication with clients, including older clients having little or no skill with computers. In updating the guide, BCLI and its volunteer project committee proceeded on the assumption that use of computer-based video communication would be a permanent legacy of the pandemic in legal practice, in the same way as it has turned out to be in other fields. Solicitor-client meetings by means of audiovisual technology, and the introduction of remote witnessing of the execution of wills, powers of attorney and representation agreements, provide new opportunities for undue influence to be exerted outside the practitioner’s field of view. Observing safeguards set out in the new guide and in the other sources referenced in it will reduce the scope for influencers to take advantage of those opportunities.

The list of “red flags” of potential undue influence that many practitioners have found extremely useful now includes additional references to nonverbal communication cues that may take on more significance in virtual client meetings, with appropriate cautions against drawing inferences from nonverbal behaviour alone.

Of course, the chapter on the law of undue influence has been updated to reflect recent case law on undue influence and legislative developments since the Wills, Estates and Succession Act was enacted. The popular reference aid checklist accompanying the guide has also been revised and re-issued.

The original guide quickly acquired currency with the wills and estate planning bar as a practice resource. The Law Society wills and estates practice checklists and the Lawyers Indemnity Fund’s website include links to it. We anticipate the new version will be equally well received and serve practitioners and their clients in the years ahead.

STRENGTHENING BC’S HEALTH CARE BACKBONE: OVERSIGHT OF THE WORK OF HEALTH CARE ASSISTANTS

In late 2022, the Canadian Centre for Elder Law (“CCEL”), a division of BCLI, published a study paper entitled Strengthening BC’s Health Care Backbone: Oversight of the Work of Health Care Assistants

Health care assistants, also called care aids, personal support workers and community health workers, provide the bulk of day-to-day health and personal care to older people, adults living with disabilities, and those with complex health needs in British Columbia. While they perform nursing tasks increasingly, their work is largely unregulated. There is no scope of practice defined for them. They are not licensed and they have no continuing educational requirements. The majority are immigrant women of colour. Many, and possibly a majority, of these workers are in precarious casual employment and must work at multiple jobs. Both the workers and the recipients of their care are vulnerable for different reasons.

British Columbia originally led the country in establishing a body in 2010 to oversee aspects of the work of health care assistants, the BC Care Aide & Community Health Worker Registry (“BC Registry”). It was established by contract and still has no legislative basis. Ontario, Alberta and Nova Scotia have moved ahead in the meantime with legislation, now at various stages, to improve oversight of the work of health care assistants.

Researchers, advocacy organizations and others have criticized the limited mandate of the BC Registry and the limited registration requirement, which applies only to health care assistants in publicly funded positions. They have pointed to gaps in the regulatory framework and its lack of transparency. For example, a member of the public cannot check the BC Registry to determine if someone is registered or not.

Our study paper reviewed the existing regulatory framework in British Columbia, summarized the criticism of the framework and examined approaches to regulating this category of health care worker in other jurisdictions. It identified seven options for regulatory reform that would address critical gaps in the present system and enhance the protection of both care recipients and health care assistants.

Coincidentally with the issuance of the study paper, the Health Professions and Occupations Act (“HPOA”) was introduced in the British Columbia legislature as Bill 36 and subsequently passed.1 The HPOA creates a structure that could be used to regulate health care assistants as a “health occupation” under the statute. At the time of writing, the bulk of the HPOA is not in force, and it remains to be seen whether regulations under it will address the matters covered in Strengthening BC’s Health Care Backbone. We hope that this study paper will influence the course of reform under the new provincial framework.

Undue Influence Recognition and Prevention: A Guide for Legal Practitioners and Strengthening BC’s Health Care Backbone: Oversight of the Work of Health Care Assistants can each be downloaded from BCLI’s website at <www.bcli.org>. ENDNOTE