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SNL2011 CHAPTER A-4.01

ADULT PROTECTION ACT

Amended:

 

CHAPTER A-4.01

AN ACT RESPECTING THE PROTECTION OF ADULTS

(Assented to May 31, 2011)

Analysis


       
1.   Short title

       
2.   Definitions

              PART I
APPLICATION AND SERVICE PRINCIPLES

       
3.   Labrador Inuit rights

       
4.   Application

       
5.   Adult in need of protective intervention

       
6.   Presumption

       
7.   Right to be heard

       
8.   Service principles

       
9.   Directors

     
10.   Provincial director

     
11.   Review

              PART II
ADULT IN NEED OF PROTECTIVE INTERVENTION

     
12.   Reporting required

     
13.   Evaluation

     
14.   Investigation may be directed

     
15.   Investigators

     
16.   Investigation

     
17.   Warrant re: entry

     
18.   Telewarrant

     
19.   Application and orders re: investigation

     
20.   Action following investigation

     
21.   Application for declaration

     
22.   Order of court

     
23.   Emergency intervention

     
24.   Emergency intervention-financial affairs

     
25.   Appeal

     
26.   Proceedings

              PART III
GENERAL

     
27.   Service plan

     
28.   Review committee

     
29.   Confidentiality

     
30.   Good faith protection

     
31.   Protection of employee from reprisal

     
32.   Offences

     
33.   Regulations

              PART IV
TRANSITIONAL, REPEAL AND COMMENCEMENT

     
34.   Transitional

     
35.   NLR 11/07 Amdt.

     
36.   SNL1995 cA-4.1 Amdt.

     
37.   RSNL1990 cJ-4 Amdt.

     
38.   RSNL1990 cM-10 Amdt.

     
39.   NLR 18/08 Amdt.

     
40.   RSNL1990 cN-3 Rep.

     
41.   Commencement


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Adult Protection Act.

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Definitions

        2. In this Act

             (a)  "abuse" means the deliberate mistreatment of an adult who lacks the capacity to protect himself or herself that causes or is reasonably likely, within a short period of time, to cause the adult

                      (i)  serious physical, psychological or emotional harm, or

                     (ii)  substantial damage to or substantial loss of assets

and includes intimidation, humiliation and sexual assault;

             (b)  "adult" means a person who is not a child or youth within the meaning of the Child, Youth and Family Services Act;

             (c)  "adult in need of protective intervention" means an adult in need of protective intervention referred to in section 5;

             (d)  "authority" means a regional health authority established under section 6 of theRegional Health Authorities Act;

             (e)  "co-habiting partner" means either of 2 persons who have co-habited in a conjugal relationship outside of marriage for a period of at least one year;

             (f)  "court", unless otherwise specified, means the Provincial Court or the Trial Division;

             (g)  "department" means the department presided over by the minister;

             (h)  "director" means a person appointed by an authority who has responsibilities under this Act;

              (i)  "judge", unless otherwise specified, means a Provincial Court judge or a judge of the Trial Division;

              (j)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (k)  "neglect" means the failure to provide care, assistance, guidance or attention to an adult who lacks capacity that causes, or is reasonably likely, within a short period of time, to cause to the adult serious physical, psychological or emotional harm or substantial damage to or substantial loss of assets;

              (l)  "next of kin" means, in order of priority, the adult in need of protective intervention's

                      (i)  spouse or co-habiting partner,

                     (ii)  children, or

                    (iii)  parents or guardian,

                   and "adult in need of protective intervention" includes a person who may be an adult in need of protective intervention;

           (m)  "peace officer" means a member of the Royal Newfoundland Constabulary or the Royal Canadian Mounted Police and includes a person approved by the Attorney General to perform the duties of a peace officer;

             (n)  "provincial director" means the Provincial Director of Adults in Need of Protective Intervention;

             (o)  "reprisal" means one or more of the following measures taken against an employee because the employee has, in good faith, made a report or participated in an investigation as required under this Act:

                      (i)  a disciplinary measure,

                     (ii)  a demotion,

                    (iii)  termination of employment,

                    (iv)  a measure that adversely affects his or her employment or working conditions, or

                     (v)  a threat to take a measure referred to in subparagraphs (i) to (iv);

             (p)  "self-neglect" means the failure of an adult who lacks capacity to take adequate care of himself or herself where that failure causes, or is reasonably likely, within a short period of time, to cause serious physical or psychological harm or substantial damage to or substantial loss of assets, and includes

                      (i)  living in grossly unsanitary conditions,

                     (ii)  suffering from an untreated illness, disease or injury that, within a short period of time is likely to cause physical or psychological harm,

                    (iii)  suffering from malnutrition to the extent that, without intervention, the adult's physical or mental health is likely to be severely impaired, and

                    (iv)  creating a hazardous situation that will likely cause serious physical harm to the adult or others or cause substantial damage to or substantial loss of the adult’s assets; and

             (q)  "social worker" means a person

                      (i)  registered under the Social Workers Act , and

                     (ii)  employed by an authority or by the province.

PART I
APPLICATION AND SERVICE PRINCIPLES

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Labrador Inuit rights

        3. This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act.

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Application

        4. (1) This Act applies to every person who is not a child or youth as defined in the Child, Youth and Family Services Act , including a person who is a patient or resident in

             (a)  a facility operated by an authority established under paragraph 6(1)(b) of the Regional Health Authorities Act;

             (b)  a personal care home as defined in the Personal Care Home Regulations;

             (c)  a long term care home;

             (d)  a community care facility; and

             (e)  an assisted living facility.

             (2)  This Act does not apply to a person who is the subject of a certificate or a community treatment order issued under the Mental Health Care and Treatment Act.

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Adult in need of protective intervention

        5. An adult in need of protective intervention means an adult who lacks capacity and who

             (a)  is incapable of caring for himself or herself, or who refuses, delays or is unable to make provision for adequate care and attention for himself or herself; or

             (b)  is abused or neglected.

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Presumption

        6. (1) An adult is presumed to have the capacity to make decisions unless the contrary is proven.

             (2)  An adult shall be considered to lack the capacity to make a decision where that adult

             (a)  is unable to understand information relevant to the decision where that decision concerns his or her health care, physical, emotional, psychological, financial, legal, residential or social needs; or

             (b)  is unable to appreciate the reasonably foreseeable consequences of a decision or the lack of a decision.

             (3)  Where an adult is determined to lack the capacity for decision-making referred to in subsection (2) in one particular context, he or she shall not be presumed to lack the capacity for decision-making in those other contexts or all of them unless the contrary is proven.

             (4)  An adult's method of communicating with others is not grounds for deciding that he or she is incapable of making decisions.

             (5)  For the purpose of this section, capacity for decision-making may be assessed by those persons approved by the minister in the regulations.

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Right to be heard

        7. In a matter or proceeding under this Act, whether before a court or a person having authority to make a decision that affects the adult who is or may be in need of protective intervention, that adult has the right to be heard either on his or her own behalf or through a spokesperson.

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Service principles

        8. The following principles apply to the delivery of programs and services under this Act:

             (a)  an adult is entitled to live in the manner he or she wishes as long as that adult

                      (i)  has the capacity to make decisions respecting his or her lifestyle, and

                     (ii)  does not harm himself, herself or others;

             (b)  in relation to an intervention to assist or protect an adult who is or may be in need of protective intervention, the paramount consideration shall be the best interests of that adult;

             (c)  an adult who is or may be in need of protective intervention should be involved to the greatest possible extent in decisions relating to him or her;

             (d)  an adult who is or may be in need of protective intervention should receive the most effective but the least restrictive and intrusive form of support or protection when unable to care for himself or herself or his or her assets as program and service resources, including budgetary appropriations, permit;

             (e)  an intervention to assist or protect an adult should be designed for the specific needs of that adult and should be reviewed and revised as his or her needs and condition change;

             (f)  the delivery of services under this Act should provide for the preservation of family ties and contacts in all appropriate circumstances; and

             (g)  an adult who is or may be in need of protective intervention should, if desired, be encouraged to obtain support, assistance and advice from family and friends to help that adult understand choices, and to make and communicate decisions.

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Directors

        9. (1) An authority shall appoint one or more directors who shall exercise the powers and perform the duties that are conferred or imposed upon them by this Act.

             (2)  A director appointed under subsection (1) may designate a person who is a social worker as acting director to exercise the powers and perform the duties of that director where the director is absent or unable to act.

             (3)  A director shall, every 6 months or more often if requested by the provincial director, make a report to the provincial director respecting the exercise of that director's duties under this Act, and the report shall include the information that the provincial director may require.

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Provincial director

      10. (1) There shall be a Provincial Director of Adults in Need of Protective Intervention who shall

             (a)  establish province-wide policies, programs and standards respecting adults in need of protective intervention;

             (b)  evaluate and monitor adherence to the established policies, programs and standards; and

             (c)  where ordered by the court or otherwise under the authority of this Act, maintain custody of persons who are or may be adults in need of protective intervention.

             (2)  The provincial director may require that a director exercise and perform duties assigned under this Act in the manner that the provincial director considers appropriate, and a director shall comply with those requirements.

             (3)  Notwithstanding that a power is conferred or a duty is imposed upon a director under this Act, the provincial director may, in his or her discretion, exercise that power or perform that duty.

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Review

      11. The minister shall, every 5 years, perform a review of this Act and the regulations made under it, the principles upon which it is based and consider the areas in which it may be improved and report his or her findings to the Lieutenant-Governor in Council.

PART II
ADULT IN NEED OF PROTECTIVE INTERVENTION

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Reporting required

      12. (1) A person who reasonably believes that an adult may be an adult in need of protective intervention shall immediately give that information, together with the name and address of the adult, if known, to the provincial director, a director, a social worker or a peace officer.

             (2)  Where a person makes a report under subsection (1), the person shall report all the information of which he or she has knowledge.

             (3)  Where a report is made to a peace officer under subsection (1), the peace officer shall, as soon as possible after receiving the report, inform the provincial director, a director or a social worker.

             (4)  This section applies notwithstanding that the information is confidential or privileged, and an action does not lie against the person providing the information in good faith unless the information is given maliciously or without reasonable cause.

             (5)  Subsection (4) applies to information which is solicitor-client privileged.

             (6)  A person shall not interfere with or harass a person who gives information under this section.

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Evaluation

      13. (1) A director shall complete an evaluation where he or she

             (a)  receives a report under section 12 ;

             (b)  is referred a report from a person who received it under section 12; or

             (c)  reasonably believes that a person may be an adult in need of protective intervention.

             (2)  An evaluation shall be completed as soon as practicable but no later than 5 clear days of a director receiving a report under section 12 .

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Investigation may be directed

      14. (1) Where an evaluation has been completed and a director believes, on reasonable grounds, that the adult is an adult in need of protective intervention, the director shall direct that an investigation be completed.

             (2)  Notwithstanding that, following an evaluation, a director is satisfied that there are no reasonable grounds to believe that the adult is an adult in need of protective intervention and that an investigation is not required, the director may, where appropriate, refer that adult to health care, social, legal or other services which may assist the adult.

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Investigators

      15. (1) A person who acts as an investigator shall be a social worker or another person or class of persons designated by the minister in the regulations.

             (2)  An investigator may act for and in the name of a director or the provincial director and a social worker who is acting as an investigator may, on behalf of a director or the provincial director, appear in court.

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Investigation

      16. (1) Where a director requires that an investigation be completed under section 14 , a person shall cooperate with that investigation.

             (2)  An investigator shall make all reasonable efforts to interview the adult who is the subject of the investigation.

             (3)  An investigator may

             (a)  communicate with and assess the adult who may be an adult in need of protective intervention;

             (b)  request that the adult participate in a capacity assessment;

             (c)  require a person to provide information or produce records, documents or other things in that person's possession or control which, in the opinion of the person completing the investigation, may be relevant to it;

             (d)  solicit, accept and review reports and information from health care providers, persons who or agencies that have provided services to the adult who is the subject of the investigation, or a person who manages the adult's financial affairs, business or other assets;

             (e)  interview anyone who may have information which would be relevant to the investigation; and

             (f)  require the production of medical or other records respecting the adult who is the subject of the investigation.

             (4)  For the purpose of subsection (3), the right to information overrides

             (a)  a claim of confidentiality or privilege, except solicitor-client privilege; and

             (b)  a restriction in an enactment or the common law about the disclosure or confidentiality of information.

             (5)  Notwithstanding paragraph (4)(a), an investigator may, in the course of an investigation, require and access information that is solicitor-client privileged where it  relates to the report of a solicitor under section 12.

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Warrant re: entry

      17. (1) A judge may issue a warrant authorizing a director or an investigator named in the warrant to enter on lands or premises and exercise a power referred to in section 16 where the judge is satisfied on evidence under oath that there are reasonable grounds to believe that entry on the lands or premises is necessary to assess the person who is the subject of the investigation or access, copy or remove documents necessary for the investigation and

             (a)  that the director or investigator has been denied entry to the lands or premises or has been obstructed in exercising a power under section 16 with respect to the lands or premises; or

             (b)  there are reasonable grounds to believe the director or investigator will be denied entry to the lands or premises or obstructed in exercising a power with respect to the lands or premises.

             (2)  A warrant issued under subsection (1) shall

             (a)  specify the times, which may be during the day or night, during which the warrant may be carried out; and

             (b)  state when the warrant expires.

             (3)  A judge may extend the date on which a warrant expires for those additional periods as the judge considers necessary.

             (4)  A judge may receive and consider an application for a warrant or extension of a warrant under this section without notice to the owner or occupant of the land or premises to which it applies.

             (5)  A director or an investigator authorized under a warrant issued under subsection (1) to enter land or premises may call on peace officers as necessary and may use force as necessary to make the entry and take the action authorized in the warrant.

             (6)  A director or an investigator named in a warrant issued under subsection (1) may call on other persons he or she considers advisable to assist in the execution of the warrant.

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Telewarrant

      18. (1) Where, in the opinion of a director or investigator it would not be practical to appear in person before a judge to apply for a warrant, the director or investigator may make the application by telephone or other means of telecommunication.

             (2)  Where a director or investigator enters on land or premises under the authority of a warrant obtained under this section, the director or investigator shall provide the person who is the owner or occupier of that land or premises with a facsimile of the warrant.

             (3)  In subsection (2), "facsimile" includes a record produced by electronic means or a written record of a telephone conversation made by both parties to the conversation while it is in progress and which the parties have confirmed as to its accuracy by reading their record of the conversation to one another at the end of the conversation.

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Application and orders re: investigation

      19. (1) Where it may be necessary during the course of an investigation, a director may apply to a court for an order under subsection (2).

             (2)  A judge may make an order

             (a)  requiring the release of information referred to in section 16;

             (b)  requiring a medical assessment by a health care professional;

             (c)  requiring a capacity assessment by a person approved to perform it under subsection 6(5);

             (d)  allowing a person performing an assessment under paragraph (b) or (c) to enter into a premises to perform that assessment;

             (e)  requiring auditing or other financial evaluation of assets;

             (f)  requiring that the adult who may be an adult in need of protective intervention be removed from the place of residence; or

             (g)  that the judge considers necessary

where the judge is satisfied on evidence under oath that there are reasonable grounds to believe those actions are required to assess the adult who is the subject of the investigation, or his or her assets.

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Action following investigation

      20. (1) Where, following an investigation, a director believes that an adult is an adult in need of protective intervention, the director

             (a)  may

                      (i)  report the matter to the police,

                     (ii)  make an application for a warrant to remove the adult to a place of safety under section 23,

                    (iii)  remove the adult to a place of safety without a warrant under the authority of subsection 23(3), or

                    (iv)  provide or arrange for support services consistent with the service plan prepared under paragraph (b); and

             (b)  shall

                      (i)  prepare a service plan for that adult based on criteria set by the minister, and

                     (ii)  report that belief to the provincial director.

             (2)  Where the provincial director receives a report under subparagraph (1)(b)(ii), the provincial director may

             (a)  report the matter to the police; or

             (b)  apply to the court for an order, as appropriate.

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Application for declaration

      21. (1) Where the provincial director receives a report under section 20 indicating that an adult is believed by a director to be an adult in need of protective intervention, the provincial director may apply to the court for a declaration that the adult is an adult in need of protective intervention.

             (2)  A hearing under this section shall be held within 30 clear days of the filing of the application under subsection (1).

             (3)  A capacity assessment shall accompany an application under this section.

             (4)  Notice of the time and place of a hearing under this section shall be served not later than 10 clear days after the date for holding the hearing is obtained from the court

             (a)  on the adult who is the subject of the application; and

             (b)  where the adult who is the subject of the application resides 

                      (i)  in a personal care home, on the licensee of the personal care home,

                     (ii)  in a community care facility, on the owner of the community care facility, or

                    (iii)  in a long term care facility, on the administrator of the long term care facility.

             (5)  The provincial director shall notify the following persons of the date of a hearing under this section:

             (a)  a person with whom the adult who is the subject of the application resides, if appropriate; or

             (b)  the next of kin of the adult who is the subject of the application, and where the next of kin are determined to be the children of the adult, efforts shall be made to notify all of those children.

             (6)  The provincial director may make an application to dispense with the requirement for notice under subsection (5), and the court may make the order considered appropriate in the circumstances.

             (7)  Where an application is made under subsection (1), a judge may make an order under section 22 .

             (8)  Not later than 5 clear days before a hearing under this section, the provincial director shall file a service plan for the adult who is the subject of the application with the court and shall provide a copy to those persons to whom notice of the hearing has been served or given.

             (9)  Not later than 2 clear days before the hearing under this section, the persons to whom a copy of a plan has been given under subsection (8) may respond to the plan and file an alternate written plan with the court and provide a copy to the provincial director.

          (10)  An adult who is the subject of an application under this section has a right to be heard, directly or indirectly, in all proceedings relating to the application, and that adult may be consulted in private if he or she so desires.

          (11)  Notwithstanding another provision of this section, where an application is made further to an emergency intervention under section 23, notice required under this section may be given as soon as practicable, and the lack of notice does not impair an application under this section.

          (12)  The onus of proving the adult is an adult in need of protective intervention is on the provincial director.

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Order of court

      22. (1) Upon hearing an application under section 21, where a judge finds that the adult is an adult in need of protective intervention, the judge may so declare and may, where it appears to him or her in the best interests of that adult, make an order

             (a)  that the adult

                      (i)  continue to live independently subject to supervision by a director,

                     (ii)  remain where the adult is living in the care and custody of the person in whose care he or she may be, subject to supervision by a director,

                    (iii)  be removed to the home of some suitable person and committed to the care and custody of that person, subject to supervision by a director, or

                    (iv)   be committed to the care and custody of the provincial director, who in his or her discretion may make decisions on behalf of the adult, including health care decisions; and

             (b)  requiring the payment of support by a spouse or co-habiting partner of a person declared to be an adult in need of protective intervention.

             (2)  An order made under subparagraphs (1)(a)(ii) or (iii) may contain conditions which apply to the person with whom the adult is placed, but shall not contain conditions which apply to the provincial director, a director, a social worker, an authority or the department.

             (3)  An order made under subparagraph (1)(a)(iv) shall not contain conditions.

             (4)  Where there is a pension or other income payable to

             (a)  an adult who has been declared to be an adult in need of protective intervention; or

             (b)  a person responsible for the support of an adult who has been declared to be an adult in need of protective intervention,

and the pension or other income is capable of being attached, a judge may, after giving a person referred to in paragraph (a) or (b) an opportunity of being heard, order that the part of the pension or other income that the judge considers appropriate be attached and be paid to a person that the judge may direct.

             (5)  The order under subsection (4) is authority to the person by whom the pension or other income is payable to make the payment so ordered, and the receipt of the person to whom the payment is ordered to be made shall be a sufficient discharge to the person by whom the pension or other income is payable.

             (6)  For the purpose of subsections (4) and (5), "income" includes pension income, savings and other assets.

          (7)  A judge may order that a person who is found to be a source of neglect or abuse to the adult in need of protective intervention

             (a)  stop living in and stay away from the premises where the adult in need of protective intervention lives, where the person is not the owner or lessee of the premises;

             (b)  not visit, communicate with, harass or interfere with the adult in need of protective intervention; or

             (c)  cease all contact or association with the adult in need of protective intervention and have no further involvement in his or her affairs, business dealings or estate.

             (8)  Where there is a material change in the circumstances of the adult in need of protective intervention, a person may make an application to vary or terminate the order or to make a new order, and unless the application relates to the termination of an order, an updated service plan shall be filed with the court.

             (9)  Where an adult has been declared an adult in need of protective intervention, the provincial director shall send a notice to the public trustee in accordance with section 22.1 of the Mentally Disabled Persons Estates Act.

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Emergency intervention

      23. (1) Where a director or social worker believes

             (a)  that an adult is in need of protective intervention; and

             (b)  a less intrusive course of action that would adequately protect the adult is not available,

the director or social worker shall file an application with the court for a warrant to remove that adult.

             (2)  Where satisfied on the basis of the director's or social worker's sworn information that there are reasonable grounds to believe that

             (a)  an adult is in need of protective intervention; and

             (b)  a less intrusive course of action that would adequately protect the adult is not available,

a judge may issue a warrant authorizing the director or social worker to enter a premises or vehicle or board a vessel or aircraft, by force if necessary, to remove the adult.

             (3)  Notwithstanding subsection (1), where a director or social worker has reasonable grounds to believe there would be an immediate risk to the adult’s health and safety if no action were taken during the time required to obtain a warrant, the director or social worker may enter a premises or vehicle or board a vessel or aircraft, by force if necessary, to remove the adult without a warrant.

             (4)  At the request of a director or social worker, a peace officer shall assist in enforcing a warrant issued under subsection (2), or if a warrant is not obtained, the peace officer shall assist a director or social worker under subsection (3).

             (5)  A warrant issued under subsection (2) need not describe the adult by name or specify a particular premises.

             (6)  An application under this section may be made by telephone or other means of telecommunication, and section 18 applies with the necessary changes to the manner of obtaining that telewarrant.

             (7)  A copy of the warrant or telewarrant shall be given to

             (a)  the adult who is the subject of the warrant;

             (b)  the person from whose premises the adult is removed, if applicable; and

             (c)  the provincial director.

             (8)  Where an adult is removed from the premises in which he or she is living to another place and it appears to a director or social worker that there is danger of loss of, or damage to, property of the adult because of the adult’s temporary or permanent inability to deal with his or her property, and that no other suitable arrangements have been or are being made for the purpose, it is the duty of the director or social worker to take reasonable steps to prevent or mitigate the loss or damage.

             (9)  A director or social worker has power at reasonable times to enter premises which immediately before the adult’s removal were the adult’s place of residence or usual place of residence, and to deal with property of the adult in a way which is reasonably necessary to prevent or mitigate loss or damage.

          (10)  A director or social worker may recover from the adult, or from a person liable to maintain him or her, reasonable expenses incurred by the director or social worker under subsection (9).

          (11) The provincial director shall, within 2 clear days of an adult being removed

             (a)  under the authority of a warrant issued under subsection (2); or

             (b)  under the authority of subsection (3)

make an application to a court under section 21 and a court shall hear that application within 2 clear days of the making of the application.

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Emergency intervention-financial affairs

      24. (1) Where the provincial director reasonably believes that an urgent situation exists in which a person who is evidently an adult in need of protective intervention but has not yet been declared as such

             (a)  is unable to manage his or her affairs or assets; and

             (b)  there is immediate danger of substantial damage to or substantial loss of those assets,

the public trustee may, at the request of the provincial director, intervene in a manner and to the degree that may be demonstrably necessary to temporarily prevent or contain that loss or damage.

             (2)  Where the public trustee takes the action referred to in subsection (1), he or she shall, within 3 clear days of taking that action, apply to a court and the court shall hear that application within 5 clear days of the making of the application.

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Appeal

      25. (1) A person aggrieved by an order of a judge under this Act, or by the refusal of a judge to make an order, may appeal from the decision granting or refusing the order, where the judge is a judge of the

             (a)  Provincial Court, to the Trial Division; and

             (b)  Trial Division, to the Court of Appeal,

and the provisions of the Judicature Act and the Rules of the Supreme Court, 1986 shall govern the proceedings on the appeal.

             (2)  The Trial Division or Court of Appeal to which an appeal is made may set aside or confirm the order referred to in subsection (1) or may make an order that a judge under this Act can make or may, by order directed to the judge from whom the appeal is taken, require that judge to make an order as the circumstances of the case may require.

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Proceedings

      26. (1) A proceeding under this Act

             (a)  is civil in nature;

             (b)  may be as informal as a judge may allow; and

             (c)  shall be held in private, unless otherwise ordered by the judge.

             (2)  In a proceeding under this Act, a judge may admit and act upon

             (a)  the evidence, including hearsay, that the judge considers relevant and reliable in the circumstances;

             (b)  an oral statement which has been video-taped;

             (c)  a written statement;

             (d)  a report the judge considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding; and

             (e)  evidence taken and a declaration made at a prior proceeding under this Act or under a similar statute.

             (3) A proceeding under this Act may be conducted by means of teleconference, videoconference or other means of telecommunication.

             (4)  A judge may

             (a)  shorten the time period to serve a notice under this Act; or

             (b)  dispense with a requirement to serve notice of a proceeding under this Act.

PART III
GENERAL

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Service plan

      27. (1) A director or his or her designate shall prepare a service plan for every adult who is declared to be an adult in need of protective intervention.

             (2)  A schedule of review shall be incorporated into every service plan, and every service plan shall be reviewed at least every 6 months.

             (3)  Notwithstanding subsection (2), where there is a material change in the circumstances or condition of the adult in need of protective intervention, that adult's service plan shall be reviewed and modified as necessary.

             (4)  An adult who is or may be in need of protective intervention has the right to participate in the development of his or her service plan, including amendments to it.

             (5)  Where a person was declared to be a neglected adult under the Neglected Adults Welfare Act , a service plan for that person shall be prepared or updated within 6 months of the coming into force of this Act.

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Review committee

      28. (1) There shall be a review committee which shall review, at least once every year, the service plans of every adult who has been declared to be an adult in need of protective intervention, and that review shall be in addition to another review required under this Act.

             (2)  The review committee shall be comprised of the provincial director and all directors appointed by the regional health authorities with duties under this Act.

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Confidentiality

      29. (1) A person employed in the administration of this Act shall maintain confidentiality with respect to all matters that come to his or her knowledge in the course of that person's employment and shall not communicate the matters to another person, including a person employed by the government, except

             (a)  with the consent of the person to whom the information relates;

             (b)  where the disclosure is required by another Act of the province;

             (c)  for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of information;

             (d)  where, in the opinion of a director, the disclosure is in the best interests of the person to whom the information relates;

             (e)  where the disclosure is necessary to the performance of duties or the exercise of powers under this Act;

             (f)  where the disclosure is to the next of kin of the adult in need of protective intervention, where that disclosure is, in the opinion of a director, in the best interests of the person to whom the information relates;

             (g)  where the disclosure is for research approved by a research ethics body; or

             (h)  for another purpose authorized by the regulations

and the information released under this section shall only be used for the purpose for which it was released.

             (2)  The department or an authority is not liable for damages caused to a person as a result of the release of information under subsection (1).

             (3)  A person shall be denied access to information where

             (a)  there are reasonable grounds to believe that the disclosure might result in physical, emotional or financial harm to that person or another person;

             (b)  where the disclosure would identify a person who made a report under section 12; or

             (c)  the disclosure could reasonably be expected to jeopardize an investigation under this Act or a criminal investigation.

             (4)  Where information excepted from disclosure under this section can reasonably be severed, a person who is otherwise permitted to receive information under this section shall be given the remainder of the information.

             (5)  A person has a right of access to information or records created or maintained respecting that person in the course of the administration of this Act except where

             (a)  that information would identify a person making a referral under section 12; or

             (b)  there are reasonable grounds to believe that the disclosure might result in physical, emotional or financial harm to that person or another person.

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Good faith protection

      30. An action for damages does not lie against a trustee, an officer or an employee of an authority, an employee of the department or the minister personally for anything done or omitted in good faith in the performance or intended performance of a duty or the exercise or intended exercise of a power under this Act, or for a neglect or default in the performance, or intended performance, of a duty, or the exercise or intended exercise, of a power, in good faith, under this Act.

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Protection of employee from reprisal

      31. (1) A person shall not take a reprisal against an employee or direct that one be taken against an employee because that employee has, in good faith

             (a)  sought advice about making a report;

             (b)  made a report; or

             (c)  cooperated in an investigation under this Act.

             (2)  A person who takes a reprisal against an employee or directs that one be taken contrary to subsection (1) is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from another sanction provided by law.

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Offences

      32. A person who contravenes this Act or the regulations is guilty of an offence and is liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding one year in default of payment or to both a fine and imprisonment.

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Regulations

      33. The minister may make regulations respecting

             (a)  the persons who may conduct assessments of capacity under section 6 ;

             (b)  the disclosure of information under paragraph 29(1)(h);

             (c)  the required components of a service plan;

             (d)  the persons or classes of persons who may act as investigators under this Act; and

             (e)  generally, to give effect to the purpose of this Act.

PART IV
TRANSITIONAL, REPEAL AND COMMENCEMENT

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Transitional

      34. Where

             (a)  an evaluation or investigation was begun but had not concluded before the coming into force of this Act, the provisions of this Act shall apply and the coming into force of this Act does not affect the validity of that evaluation or investigation; and

             (b)  a person was declared to be a neglected adult under the Neglected Adults Welfare Act, that person shall be considered to be an adult in need of protective intervention under this Act, and the provisions of this Act shall apply.

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NLR 11/07 Amdt.

      35. Section 5 of the Access to Information Regulations is amended by adding immediately after paragraph (a) the following:

         (a.1)  section 29 of the Adult Protection Act;

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SNL1995 cA-4.1 Amdt.

      36. Subsections 10(3), (4) and (5) of the Advance Health Care Directives Act are repealed and the following substituted:

             (3)  Notwithstanding subsection (1), where a person has indicated in an advance health care directive that he or she does not wish an individual to act as his or her substitute decision maker, the individual may only act as the substitute decision maker where he or she is the person's guardian appointed by the court or the Provincial Director of Adults in Need of Protective Intervention under the Adult Protection Act.

             (4)  Notwithstanding subsection (1), a substitute decision maker referred to in that subsection, other than a court appointed guardian, the Provincial Director of Adults in Need of Protective Intervention under the Adult Protection Act , or a health care professional, may not act as a substitute decision maker unless he or she has had personal involvement with the incompetent person at some time during the preceding 12 months.

             (5)  A substitute decision maker other than a court appointed guardian, the Provincial Director of Adults in Need of Protective Intervention under the Adult Protection Act or health care professional may apply to the Trial Division to shorten or waive the 12 month requirement under subsection (4).

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RSNL1990 cJ-4 Amdt.

      37. Subsection 43.9(1) of the Judicature Act is amended by adding immediately after paragraph (l) the following:

           (l.1)  protective intervention matters relating to adults under the Adult Protection Act;

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RSNL1990 cM-10 Amdt.

      38. The Mentally Disabled Persons' Estates Act is amended by adding immediately after section 22 the following:

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Notice to be sent to public trustee

   22.1 (1) A director appointed under the Adult Protection Act shall, in accordance with subsection 22(9) of that Act, notify the public trustee where a person has been declared to be an adult in need of protective intervention under that Act, and the notification shall contain

             (a)  the name, address and, where known, the age of that person;

             (b)  the date the person was declared to be an adult in need of protective intervention;

             (c)  the names, known to the director, of members of the immediate family and other close relatives of that person; and

             (d)  information which the director may possess that could assist the public trustee in locating property owned or held by that person.

             (2)  A notice which is sent under subsection (1) shall be sent within 14 days after the date the person was declared to be an adult in need of protective intervention.

             (3)  The public trustee is the guardian of the estate of a person referred to in subsection (1) from the date on which he or she receives the notice sent to him or her under that subsection as if he or she had been appointed guardian under subsection 3(1), and the public trustee is the guardian of that estate until

             (a)  the court or a judge makes an order appointing another person to be the guardian or confirming the appointment of a person who had been appointed guardian before the public trustee received the notice; or

             (b)  he or she is discharged by the court or a judge under section 19.

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NLR 18/08 Amdt.

      39. (1) Paragraph 4(l) of the Regional Health Authorities Regulations is repealed and the following substituted:

              (l)  adults in need of protective intervention; and

             (2)  Subsection 7(1) of the regulations is repealed.

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RSNL1990 cN-3 Rep.

      40. The Neglected Adults Welfare Act is repealed.

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Commencement

      41. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. (In force - Jun. 30/14)