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. Often, the Public Guardian and Trustee acts as committee for persons. 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.
We regularly assist families in making committeeship applications to secure their appointment as committee of their family member’s financial affairs.
When an individual becomes mentally incapable of managing his or her healthcare and financial affairs, either as a result of aging or perhaps from an accident or illness, the Court may appoint a person to protect the interests of and make decisions on behalf of that individual. Sometimes people think of this person as the Legal Guardian of the mentally incapable person, however, in British Columbia the legal term for the person appointed to manage the affairs of the mentally incapable adult is called a Committee.
In many cases, it is necessary to secure a legal committeeship, also known as a guardianship, over a family member. Such committees are appointed under the Patients Property Act and are typically a family member. If no family member can serve as committee, the Public Guardian and Trustee (PGT) will assume that role. (The PGT is also automatically appointed statutory property guardian (similar to a committee) under the Adult Guardianship Act of an adult for whom a certificate of incapability has been issued by certain government designated medical professionals.) Committees may be appointed to make financial and legal decisions and/or to make personal care and health care decisions.
The two types of committee are:
- Committee of the estate, which gives the committee authority over financial, business and legal decisions.
- Committee of the person, which relates only to health and medical
If you are concerned about the decision-making ability of a family member and wish to be given the legal authority to manage the affairs of your loved one, it is important to speak to a B.C. Committeeship lawyer.
Typical Disputes in Regards to a Committee
Most often those that are appointed as committee or act under powers of attorney or representation agreements perform their obligations in the best interests of the incapable party. Disputes can arise where:
- one person applies to be committee of a family member’s financial affairs and others in the family don’t think that person is the best qualified or will not act in the best interest of the incapable person and are opposed to that person being appointed (disputed committeeship applications).
- a person appointed as a committee or acting under a power of attorney or representation agreement abuses their powers to benefit themselves to the financial detriment of the person whose interest they are supposed to be representing.
- A person appointed as committee or acting under a power of attorney misappropriates the funds of the person they were appointed to protect there is a need to recover the misappropriated funds.
- the person who has been declared incapable disputes that and says that they are capable of managing the financial affairs and do not require a committee.
- A person who is incapable of managing their financial affairs but has not been formally declared incapable either purchases something or is sold something entirely contrary to their interests or financial means and it is necessary to set aside the transaction.
McLarty Wolf has experience in handling these types of disputes. Regrettably these disputes involve disagreements among family members or situations where a person who is becoming incapable has been the victim of financial abuse. If such a dispute arises and affects a family member or friend you are welcome to contact Ross and Murray to discuss the matter.
Cases We Handle
- Financial elder abuse including fraud
- Patients Property Act disputes
- Committeeship applications
- Disputes involving representatives pursuant to Representation Agreements
- Disputes involving attorneys pursuant to Powers of Attorney
Vancouver Representation Agreements
The Representation Agreement Actallows an individual to appoint someone as their legal representative to handle routine financial, legal, personal care and health care decisions when a person is unable to make those decisions on their own. A Representation Agreement can be changed or revoked by the individual as long as he or she still has the mental capacity to make a Representation Agreement. Changes or revocations can be made in accordance with the terms of the agreement and are effective once the representative(s) as been given written notice.
If the individual no longer has the mental capacity to revoke or change a Representation Agreement and it appears that the representative is not acting according to the wishes of the individual or otherwise acts inappropriately, a concerned person may make an “objection” to the PGT. Under the Representation Agreement Act, the PGT has the duty to investigate the objection, apply to Court to change or cancel an agreement, recommend that someone else make the application to Court or take any other necessary action.
Power of Attorney
A “Power of Attorney” is a legal document through which one person, known as “the donor”, authorizes a second person, known as “the attorney”, to act on their behalf. An individual named in a Power of Attorney has a legal duty to follow the direction of the person giving the authority, or to act as a fiduciary if the person can no longer direct them. Unlike a Representation Agreement which can confer upon the representative the power to make an individual’s personal care and healthcare decisions, the power of attorney can only authorize the attorney to make financial and legal decisions on behalf of the donor.
If the named attorney abuses the terms of a Power of Attorney, the abuse can be stopped by revoking the document, generally where the donor still has legal capacity. Often times this process requires the assistance of a lawyer and the courts to recover money, property or other assets under the terms of the Power of Attorney Act. If the donor is no longer capable, a concerned person can apply to Court to be appointed committee of the adult pursuant to the Patients Property Act (which appointment necessarily revokes the Power of Attorney) or make a report to the PGT that an attorney is abusing his or her power and the PGT is required to review that report and conduct an investigation, apply to Court to revoke the power or seek other relief or advise the concerned person to make his or her own application to Court to seek similar relief.
Contact a Vancouver Mental Incapacity/Committeeship Lawyer
If you are concerned about protecting the interests of a friend or family member who is unable to make important financial or medical decisions, or if a loved one is, or is suspected to be, the victim of financial elder abuse, it is important to contact a Vancouver lawyer as soon as possible. To discuss your case with one of our lawyers, call our office today at 604-688-9542 or send us an email.
BC Committee Terms
Here are some of the common terms used in connection with Committees:
- Committee: A person or institution who is appointed to make personal, medical, legal and/or financial decisions for an adult person who is mentally incapable and cannot make those decisions for him or herself. A family member or close friend, a trust company, or the Public Guardian and Trustee of British Columbia can fill this role. A committee of the estate can be appointed by the court.
- Committee of the Estate: Able to make financial and legal decisions on behalf of the Patient.
- Committee of the Person: Able to make personal and medical decisions for the Patient
- Incapable: The Attorney General, a near relative of a person or other person may apply to the court for an order declaring that a person is unable to manage his affairs or manage himself because of:
- (a) mental infirmity arising from disease, age or otherwise, or
- (b) disorder or disability of mind arising from the use of drugs.
- Patient: An adult person who is mentally incapable and cannot make those decisions for him or herself.
Pursuant to section 2 of the Patients Property Act (PPA) any person may apply to the British Columbia Supreme Court for an order declaring that an adult is incapable and that the applicant be appointed as the adult’s Committee.