In May of 2019, a high-profile singer appeared in a court in the United States with both of her parents to speak to a judge about the singer’s 11-year-long ‘conservatorship’. The singer’s father had been her conservator since 2008 follow
ing the singer’s public meltdown and had legal control over nearly all the singer’s business and personal affairs.
The singer had publicly hinted her discontent with having her father as her conservator. The singer’s mother who had been divorced from her father since 2002 had strong intentions of assuming the role of a conservator. The singer was ordered to undergo a custody evaluation, a competency examination typically issued to assess whether an individual has regained the capacity to manage their own affairs.
In the United States, conservatorship is a form of trusteeship whereby a court appoints a person (or institution) to manage a person’s personal and financial affairs following incapacitation, or if the person is a minor. Conservatorship and guardianship differ legally as guardianship may be limited to physical and medical care, whereas conservatorship normally includes assuming the human rights and overseeing the legal and financial affairs of a minor or adult with limited capacity.
Some examples of rights exercised by a conservator on behalf of a person are the rights to sell property and voting rights. Conservators can be appointed not only for a person but may include conservatorship over an estate.
In British Columbia, the equivalent of conservatorship is called committeeship/statutory property guardianship. The legal principles for committeeship are established in two statutes: the Patients Property Act and the Adult Guardianship Act. These statutes set out different approaches for the appointment of a committee:
Committee of Person is usually a family member or close friend who can be trusted to make appropriate personal care and medical decisions on behalf of an incapable adult.
Committee of Estate can be a family member, close friend, trust company, or the Public Guardian and Trustee of British Columbia. Such an appointee must be able to make appropriate financial and legal decisions to secure the best interests of the incapable adult.
Mental Incapacity: When an adult, due to mental illness, degenerative diseases, or brain damage is no longer able to care for themselves or make legal or financial decisions.
Abuse or Neglect: When an adult is under physical restraint or handicap that limits their ability to seek help or has an illness, disease or other condition that affects their ability to make decisions about the abuse or neglect.
A committeeship may be required when the adult has not made:
A committeeship is also an option to effectively remove an attorney acting under a power of attorney or a representative acting under a representation agreement if it can be established the attorney or representative has not been acting in the adult’s best interests. A court order declaring an adult is incapable automatically terminates a power of attorney and also terminates a representation agreement unless “the court orders otherwise”.
Nomination: While you are mentally capable, you can nominate someone you want to be your committee in the event you ever lose mental capability. The nomination to be effective has to be confirmed by a court order. Such an order can typically be obtained unless a third party can show good reason why the nomination should not be approved.
Petition: A person seeking to be a committee over an incapacitated person will have to file an application called a petition with the B.C. Supreme Court.
The petition will set out the facts that support the application and reference the evidence relied upon. The evidence is presented in the form of affidavits of the person seeking to be appointed committee and of two doctors who have to provide opinions that the adult is incapable.
If a committeeship application is successful, the Court will make an order appointing the committee. That order depending on its terms will give the committee the legal authority to act in the name of the adult. Importantly, once the order is made, the adult cannot make legally binding decisions on their own behalf.
Committees once appointed remain subject to the court’s jurisdiction and the terms of the court order appointing them. The order may restrict the committee’s ability to make certain decisions, such as the sale of a house or transfer or redemption of investment accounts unless the PGT approves the decision in advance. Committees also have to regularly provide accounts to the PGT. For this reason, committees must keep detailed records of all assets, liabilities, and cash inflows and outflows out of the person’s estate.
Committees are entitled to compensation for performing their duties once their accounts are passed by the PGT. The amount of compensation will depend on a number of factors including the size of the adult’s estate, the nature of the assets in the estate, the degree of responsibility required of the committee, the length of the committeeship as well as other factors.
Certificate of Incapability: If the PGT proceeds under the Adult Guardianship Act, and the local health authority issues a ‘certificate of incapability’, then the PGT is automatically the adult’s statutory property guardian (equivalent to the committee of the estate).
A committeeship can be terminated by a new court order. Examples of when the court may terminate a committeeship include a) if the adult regains mental capacity, and b) if the committee no longer wants to act as a committee or is held not to be acting in the adult’s best interests.
A committee of estate continues to have “the rights, powers, duties and privileges that the committee would have had “ if the adult had not died until a ‘representation grant’ has been made by the court for the administration of the deceased person’s estate under the laws that govern the distribution of estates pursuant to a will or the rules of intestacy.
If you believe that a family member can no longer make decisions to properly manage their personal, legal or financial affairs and therefore require a committee appointed, or if you have already been appointed by the Courts to act as a committee and have inquiries regarding your powers and duties, or if you know a committee that is not carrying out their duties properly, McLarty Wolf has extensive experience and expertise in handling committeeship, cases. Contact us at 604-688-9542 or fill out our online contact form for assistance.
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