When a parent or spouse becomes incapable of managing their own affairs due to dementia or another illness/injury, and there is no enduring power of attorney or representation agreement in place appointing an attorney or representative to manage the person’s affairs, it may be necessary to apply to the Supreme Court to have a legal guardian known as a ‘committee’ appointed to make decisions on his or her behalf. Appointing a committee is rightly considered to be a very important step because it in effect takes away a person’s decision making capacity and gives it to someone else. Before the Court takes that step, it must be address three important issues or questions. First, is the person incapable of managing his or own affairs? Second, if the person is not capable of making decisions, does his or her lack of capacity extend to all aspects of their life or only some types of decisions. Third, if the person is in fact incapable, who is the best person to serve as his or her committee.
Medical Evidence required to prove Lack of Capability
Under the Patients Property Act, before the Court will make an order appointing a committee, it must be satisfied on sworn evidence that the person is incapable of making his or her own decisions. That opinion evidence can only be provided by affidavits sworn by at least 2 medical practitioners the person is incapable due to ‘mental infirmity arising from disease, age or otherwise or disorder or disability of mind arising from the use of drugs’.
Obtaining such evidence can be challenging depending on the circumstances of the person’s illness or injury and involves a numbers of considerations. The person’s general physician may be reluctant to help because the patient may resent their doctor providing evidence the patient does not agree with or understand. That resentment could negatively impact their future patient/doctor relationship and any effort to obtain one of the necessary affidavits from that source must be sensitive to that potential issue. In other cases, the person may not have a family doctor or one that is familiar with their current disability or illness due to a sudden hospitalization. In those situations, it will be necessary to obtain one or both of the needed affidavits from one of the specialists tasked with treating the person in hospital or retaining a consulting geriatric psychiatrist, gerontologist or other specialist to attend on the person to make the assessment required. In these situations, consideration needs to be given to what medical records the doctor will be provided as well as whether ‘collateral’ or independent sources of information are needed, for example interviews of friends or other family members regarding the person’s behavior.
Incapability of Estate and/or Person
The doctors who provide their opinions must be asked to address two separate questions because the Patients Property Act recognizes two possible types of incapability. One of those is called incapability of ‘estate’ or ‘affairs’ which means the inability to handle financial and legal decisions. The other is called incapability of ‘person’ which means the inability to manage medical and personal care decisions. It is sometimes the case that a person is found to be incapable of only one of these types of decisions. That is, the medical evidence may establish that a person can handle their own medical and personal care decisions but not financial or legal decisions. In that case, only a committee of estate would be appointed and the person would retain their legal capacity to make their own medical and personal care decision.
Selection of a Committee
If the Court decides that a person is incapable, it then must select a committee. A family member is usually the preferred choice as committee (as opposed to the Public Guardian and Trustee). The Court however must be satisfied on the evidence, in this case an affidavit from the proposed committee, that the family member will act in the best interests of the person declared to be incapable.
Any application to appoint a committee of a person must be served on all of the person’s family members. In most cases, the family will consent to the selection of the committee. However sometimes, family members don’t agree and bring competing applications to be named as committee. These types of disputes are hard fought and the competing parties will tender extensive evidence as to why they should be appointed committee and their competitor should not.
Consult a Lawyer
The lawyers at McLarty Wolf have been involved in a large number of committeeship applications to the Supreme Court. If you are concerned that a loved one can no longer make correct decisions regarding their financial affairs or health/personal care, you should consult with one of the experienced lawyers at McLarty Wolf regarding your options. Call the law offices of McLarty Wolf at (604) 688-9542 today or contact us via our online form here.