How to Obtain a Court Order Establishing Mental Incapacity?

As people go through life, they may develop illnesses or sustain injuries that affect their ability to manage important decisions regarding their healthcare, finances, or other affairs. Some of the issues that can result in mental incapacity include Alzheimer’s Disease, a severe traumatic brain injury (TBI), stroke, or dementia.

In situations where the person has not planned for that eventuality by executing an enduring power of attorney and/or a representation agreement, it may be necessary to make an application to the Supreme Court under the Patient’s Property Act¹.  That statute permits the court to make a declaration that a person is no longer capable of managing their financial affairs or their personal care decisions or both.   Under the law, a person is presumed to be capable of managing their own affairs, so the burden of proof is upon the person seeking a declaration of incapacity. Therefore the court will only declare a person is incapable if there is, at a minimum, two affidavits sworn by medical doctors who have assessed the person attesting to that person’s incapability.

Incapacity Allows for a Committee to be Appointed

When a person is declared mentally incapable, the court is able to appoint a committee (the equivalent of a guardian for an adult and typically a family member) who will make decisions about the person’s healthcare, personal, financial, and legal affairs. If a family member or other suitable person cannot act as committee, the Public Guardian and Trustee of B.C.² is appointed.

Do I Need a Lawyer to Obtain a Committeeship?

Declaring someone incapable of managing their own affairs is obviously a very important decision that the Supreme Court takes very seriously.  The procedures and evidence required to obtain such a court order are complex.  As a result, almost all committeeship applications require legal representation.   Fortunately, the Patient’s Property Act allows the court application to be brought quickly on the basis of affidavit evidence and therefore the legal expenses are relatively modest when compared to the cost of a typical lawsuit.

Call McLarty Wolf to Speak with a BC Mental Incapacity Lawyer Today

If you have concerns that a person in your life has become unable to make important decisions on his or her own, you should speak with a lawyer as soon as possible. For a telephone free consultation with one of our lawyers, call McLarty Wolf today at 604-687-2277 today.