The State of Elder & Estates Law in BC

In October, BullyFreeBC is posting articles advocating
law reform to address concerns for seniors in BC.
If you have a comment or a story to share,
email info@bullyfreebc.ca.

 *******

For several years I have been researching the legal framework for wills and estates in BC as a reluctant experiential learner.  My mother died in 2015, and since then the family has been going through an odyssey of negotiations and court dates to settle her small estate, administered according to a Will that was written under a previous legal framework and probated under new and improved legislation.

At the conclusion of this long process, problems are still not resolved and the beneficiaries are finding that not much remains now that the self-governing professionals in charge of the estate have taken their fees.

And settlement of the estate was the last stage of many after more than a decade of legal planning difficulties for our family that started with a weird Power of Attorney package and then a Representation Agreement signed after several incapacity diagnoses. All of these documents were prepared for a frail and easily confused older client by lawyers specializing in the field of elder law.

The new legislation for elders and estates law, crafted to address such difficulties, has been in effect since April 2014 when the BC government passed the Wills, Estates and Succession Act [SBC 2009, Chapter 13], known as WESA.  Enactment of WESA brought sweeping changes to an estate planning and administration framework that had been in place for decades. Several older Acts disappeared with WESA, including the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act, and the new legislation required amendments to more than 40 other Acts.

But from ongoing discussions with people in the demographic of older adult children with increasingly vulnerable parents, it seems many families are finding that the legal framework in BC, despite changes introduced by WESA, still does not serve or protect the human rights of seniors.  Problems include lack of good legal and care decisions for seniors, financial needs of family members improperly addressed while the estate is in the hands of one elderly spouse who survives the other, then wastage in the course of maintenance, consolidation, administration and distribution of the final estate when both parents are gone.

The situation is particularly worrisome in BC given the generation of land-owning seniors who hold wealth in equity and who might have more than one generation of cash-strapped offspring waiting impatiently to access the assets.  This province could be facing a crisis of financial elder abuse as part of borderline estate fraud, as problems emerge like ticking time bombs placed in packages of badly devised personal planning documents for BC seniors with estates to pass on when they do.

The decisions involved in creating these legal planning documents are critically important to each person and family.  But this is generally not understood or appreciated by the client, who might have no other contact with legal paperwork.  Easy mistakes like appointing the wrong person as a substitute decision maker, giving that person too much authority with no oversight and remedy, or creating too much latitude for the trustees of an estate – these decisions and choices made quickly and perhaps under time pressure during a legal appointment can change the fate and fortunes of a family forever.

People need to understand that they could be determining the quality of the last years of their life and perhaps their right to life when they sign on the line in a lawyer’s office, or even worse on the last page of a form from the printer.

The professionals in charge of these arrangements – the financial and legal professionals who manage the wills and estate business in BC – have no stake in the decisions made, so long as the documents resulting are properly prepared and signed.  From their perspective, any estate plan is a good plan so long as it can be legally enforced in a court of law, and doesn’t use online forms.

This lack of human rights oversight on elder and estates law needs to change, in order to reduce the opportunities for fraud and to protect against abuses of elderly people and their property.

And the risk has increased with the new June 2016 physician-assisted dying legislation in Canada [link to Bill C-14 Royal Assent] introducing the possibility of seniors being encouraged or persuaded to ask for an assisted death.  The conflicts of interest and temptations for beneficiaries created by assisted dying legislation could increase further if a current campaign succeeds in allowing alternative decision makers, who might possibly inherit under a Will, to make this most final of decisions for another person.

These gaps and snares in the legal framework must be fixed through law reform, because the  current state of elder and estates law in BC creates too many opportunities for abuse, not only of property but more critically, of the rights, well-being and safety of people entering the most vulnerable phase of their lives – the end.

A Brief History of BFBC – Part II

BullyFreeBC is an advocacy and law reform agency operating to address problems of bullying and harassment in BC.

The group first formed in 2007, meeting in a Vancouver constituency office to discuss personal harassment in the workplace. The organizers came from different sectors and professions, but all had experienced bullying as a serious personal and professional problem – as an employer unable to resolve a situation between staff members engaged in mob warfare, as a co-worker who stood by helplessly and watched abuse happen repeatedly to a respected colleague, as a target who lost a career when the new boss used harassment to avoid paying severance. So those involved in the initial planning for BullyFreeBC already knew the damage that bullying and harassment can cause to individuals and workplaces.

The group widened the discussion and search for solutions at a 2008 symposium to consider how law reform might deal with this complex of problems. The participants looked at three options of where to put new coverage as a protection under law:

Employment Standards Act > … But the ESA does not cover enough people. It is designed to protect worker rights on statutory holiday pay and the number of hours of work in a day before overtime applies. There is no capacity in this legislation to deal with a toxic workplace or problems between employees.

Human Rights Code > … But the Code is not workplace specific, and it protects people from discrimination only on the grounds of group status. This is not the same as bullying which is personal harassment, targeted against an individual and not a member of a group.

Workers Compensation Act > … But the WCA only addresses injuries, not conduct and ethics at work. And the health and safety sector is not trained, equipped, or mandated to deal with problems of dysfunctional and potentially abusive relations between people at work.

In 2010 the BullyFreeBC Legislation Working Group carried on the symposium initiative and crafted a proposal for workplace bullying legislation. The proposed legislation addresses the various concerns and issues associated with the complex of problems for workers and workplaces dealing with bullying, and also allows for simultaneous changes to other affected laws and regulations as needed to harmonize with existing frameworks.

But in 2012, following on Saskatchewan and Ontario, BC passed Bill 14 to create coverage for workplace bullying and harassment under the Workers Compensation Act.

BullyFreeBC has been monitoring implementation of the coverage since then, and held a review session late in 2016 to assess the effects of the new legislation. While the discussion group found progress in awareness, participants from various workplace settings advised that adoption of anti-bullying measures was largely dependent on individual employer compliance and interest. The question of treating bullying and harassment as health and safety issues remains problematic. Of particular concern are the small business and non-profit workplaces, which provide most of the private sector employment opportunities in the province.

However, there is growing interest in revising and expanding protections for employees under the Employment Standards Act, so that standards for conduct in the workplace might be included.

As well, BC is re-introducing a Human Rights Commission (announcement), which could also offer expanded protections for workers dealing with personal harassment as a rights violation.

And BC passed a new Societies Act in 2016, coming into full force in 2019, requiring higher standards of workplace conduct and imposing real consequences for non-profits that do not fulfil their legal and fiduciary duties as employers.

BullyFreeBC continues to engage in discussion and law reform activities on all these concerns, while encouraging adoption of five recommendations, proposed in conjunction with the 2017 provincial election, to improve conditions generally in BC workplaces.

A Brief History of BFBC – Part I

BullyFreeBC began in 2007 as a community-based dialogue group, organized by a coalition of volunteering individuals and staff from Lower Mainland human rights and legal service agencies. Participants met several times to discuss and share concerns about workplace bullying and harassment and then invited others to join in the conversation in May 2008 at an SFU-Wosk Centre for Dialogue event.

The dialogue group continued to meet over the next few years as diverse viewpoints helped to identify different types of harassment and contributed to a variety of options and solutions through working groups assigned to develop programming around law reform and awareness.

The Law Reform Working Group drafted legislation. The Awareness Group launched a website and began a social media program.

Recognizing the need for a more structured, formal and sustainable basis for operations, the organizers consulted with participants in 2010 and early 2011 to draft an agency mandate. Then BFBC registered as a provincial non-profit in April 2011.

As written into the Constitution, the purposes of the BullyFreeBC Society are:
a. to consult with various levels of government regarding anti-bullying legislation;
b. to assist government, companies and non-profit organizations to develop anti-bullying policies;
c. to educate the public about bullying;
d. to conduct research into bullying; and
e. to work with other groups to carry out the above purposes.

The duty of directors is to maintain the Society while working to fulfill the mandate. Membership supports this effort through dues and engagement.

After registering BFBC as a non-profit, the new directors outlined membership criteria and invited participants to join and help build the agency. Meanwhile, the group continued to hold dialogue sessions to discuss workplace bullying and legal reforms in Canada.

At that time, several provinces had already enacted workplace anti-bullying legislation (Quebec 2004 – website, Saskatchewan 2007 .pdf – 4 pp, Ontario 2009 .pdf – 10 pp), most recognizing the problem as an occupational health and safety concern.

As well, in 2009 the BC Supreme Court found that WorkSafeBC was treating workers with mental injuries differently from workers with physical injuries. The Charter of Rights and Freedoms prohibits this type of inequity, guaranteeing every Canadian equal treatment by public bodies (Section 15 – Equality Rights).

As a result of the BC Supreme Court decision (Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188 – CanLII), WorkSafeBC had to extend coverage to more mental stress injuries and deal with avoidable causes of workplace stress like harassment and bullying.

In March 2012, BFBC organized a law reform conference to consider the new coverage. Interested participants gathered for a day of presentations and discussion on how best to support employers and employees through the transition and requirements. The group attending and presenting helped to identify priorities and strategies, outlined training programs and how standards could be created, and made plans for connecting to different groups. Based on information collected and researched, BFBC distributed a grant-funded e-binder of resources on workplace anti-bullying programs, policies and law reform to people requesting the research.

According to the Workers Compensation Amendment Act 2011 – Bill 14, claims relating to mental disorders, including bullying and harassment, may now be accepted under the Workers Compensation Act. WorkSafeBC Occupational Health and Safety (OHS) regulations and policies outline responsibilities for both supervisors and employees to prevent and address bullying and harassment in the workplace, and the WorkSafeBC website provides free resources such as guidebooks and forms.

Next time > Part II – Since Bill 14

BullyFreeBC – Plans for growth in 2018

Starting next month, BullyFreeBC is launching a three part series of articles for September, October, and November to discuss current programming and explore new ground for 2018.

September will feature the world of work in British Columbia, from the start of BFBC anti-bullying and harassment programming in 2008 to next steps for the Workplace Recommendations project launched in conjunction with the 2017 provincial election campaign. (Details are in the May 4th post.)

In October, BFBC shifts focus to look at challenges to fairness and safety for older people, especially newcomers to Canada and people with disabilities such as dementia who are dependent on others for their quality of life and vulnerable to abuse which is difficult to detect and address.

November will be all about the kids. BullyFreeBC is looking at what children in BC need from us and the world in order to have a good childhood, a solid education, and opportunities for success in life. BFBC can help by making sure that young people and their families know about their rights and the rights of others.

The launch of these initiatives for seniors and kids as well as workers is part of a growth plan for BullyFreeBC, as the organizers and the membership collaborate in fulfilling our mandate to address bullying and harassment in BC.

To participate, contact info@bullyfreebc.ca for information on becoming a member of the BullyFreeBC Society.

BFBC Workplace Recommendations – For the 2017 BC Election

The BullyFreeBC Society recently wrote to candidates in each constituency to ask them to consider a set of recommendations to improve employment conditions and supports in the workplace.

For BC and each region …

  1. Anti-harassment programs – to protect and assist workers, especially those in marginalized groups, who are experiencing discrimination, harassment or bullying in the workplace.
  2. Local job initiatives – to help people bridge work gaps and career shifts, and avoid entrenched unemployment or precarious employment, while addressing regional service needs.
  3. Employment-focused training – to offer everyone who experiences job insecurity the retraining and up-skilling required to maintain long-term economic stability.
  4. A provincial plan for registration & regulation of workplace training providers – to establish a framework for employment-based adult education services across the province.
  5. Co-ordination between self-regulating professions – to ensure high standards for conduct, professional development, and complaint management, and to maintain focus on serving the needs of the general public.

Responses will be posted as they arrive.

Hello world!

Welcome to the BullyFreeBC Society, which registered as a provincial non-profit in 2011.

As written in the Constitution, the purposes of the Society are:

  • to consult with various levels of government regarding anti-bullying legislation;
  • to assist government, companies and non-profit organizations to develop anti-bullying policies;
  • to educate the public about bullying;
  • to conduct research into bullying; and
  • to work with other groups to carry out the above purposes.

The Board of Directors:

  • Diane Rodgers (President)
  • Michelle Bell
  • Robyn Durling

BullyFreeBC is not a charity, and is funded by membership fees.

For more information contact info@bullyfreebc.ca.

Media enquiries: RobynDurling@gmail.com