What Is an “Incapable” Person?
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’.
Committee of Person vs. Committee of Estate
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.
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.
Committee of Person
A committee of the 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 the 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 the estate can, therefore, on behalf of the person, potentially make decisions regarding the acquisition or sale of property including investments, the transfer of payment of funds, entering into contracts and conducting legal affairs. A committee of the 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’.
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 number 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 the 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 opposed to the Public Guardian and Trustee). The Court, however, must be satisfied with 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 a 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.
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.