When an adult person due to illness (such as dementia) or a brain injury is no longer able to care for themselves and/or make decisions, a legal guardian can be appointed, known as a ‘committee’. Under the Patients Property Act, two different kinds of legal guardians can be appointed by the Court in British Columbia—a committee of the ‘estate’ and/or a committee of ‘person’. A committee of estate takes charge of the incapable person’s legal and financial affairs while a committee of person handles matters regarding their personal care, health care, and living arrangements. The Court may appoint a committee upon receiving the affidavit evidence of 2 physicians that the person is incapable of managing their affairs and/or their own care. The application to the Court is usually made by a member of the person’s family. If the family can’t agree who should be the committee, the Court will decide based on the incapable person’s ‘best interests’. In some cases, the Public Guardian and Trustee (the “PGT”) is automatically appointed a person’s committee if a ‘certificate of incapability’ is issued by a government appointed medical officer.
Committee of Person
A committee of person can make decisions regarding the personal care of the incapable person such as where the person is to reside (such as at a private residence, an assisted living residence or long term care facility), who can have access to the person, and what medical treatment decisions should be made (such as administering medications or undergoing surgery) if the person’s health care providers determine that the person can’t make their own decisions. In making any such decision, a committee must act in the best interests of the person and try to determine the person’s current wishes. If that is not possible, a committee needs to consider the person’s previously expressed wishes or beliefs.
Committee of Estate
A committee of estate has the power to act as an agent of the incapable person and has all of the management powers that the individual would have over their own property and legal affairs if they were capable, subject to any restriction on those powers imposed by the Court in the order appointing the committee. A committee of estate can therefore, on behalf of the person, potentially make decisions regarding the acquisition or sale of property including investments, the transfer or payment of funds, entering into contracts and conducting legal affairs. A committee of estate also has to act in the person’s best interests and for investment decisions is treated as a trustee who is held to the standard of care of the ‘prudent investor’.
Duties of a Committee
In carrying out his or her duties, a committee must keep records of all transactions involving the incapable person, establish and maintain a separate bank account, and submit accounts describing all financial transactions on a regular basis to the PGT for their review. Further details of these duties are set out in the Private Committee Handbook published by the PGT.
Discuss your situation with an experienced BC Committeeship lawyer
If you believe that a family member can no longer make decisions to properly manage their affairs or personal care and therefore needs to have a committee appointed, or if you have already been appointed a committee by the Court and have inquiries regarding your powers and duties, or if you know of a committee that is not carrying out their duties properly, contact an experienced Vancouver committeeship lawyer at the law firm of McLarty Wolf. Please call today at 604-688-9542 for assistance.