Committeeship (Script 426)
|The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. This script gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.|
This script explains “committeeship” in BC. You should also check script 180, called “Power of Attorney and Representation Agreements”.
- 1 What is a committee?
- 2 How and when could you become a committee?
- 3 Choosing, or nominating, your own committee
- 4 What powers and duties does a committee have?
- 5 Responsibilities of a committee of the estate
- 6 Are committees of the estate paid?
- 7 The Public Guardian and Trustee of British Columbia
- 8 Committee compared to power of attorney
- 9 Summary
What is a committee?
A committee (pronounced caw-mi-tay, or caw-mi-tee, with emphasis on the end of the word) is a non-government person appointed by the BC supreme court to make personal, medical, legal, or financial decisions for someone in BC who is mentally incapable and cannot make those decisions. The court can appoint more than one person as committee.
Anyone who suffers from a mental illness or handicap, a head injury, a degenerative disease, or some other kind of disability may not be mentally capable to make decisions about their personal, medical, financial, or legal affairs. They may be unconscious and unable to decide anything, including where and how to live. They may lose track of bank accounts, forget to pay bills, or be taken advantage of and abused. In these cases, appointing a committee is one possible solution. It’s a serious legal step because it takes away a person's right to decide things for themselves. It is usually a last resort.
A committee of the person can make only personal and medical decisions, including decisions about where the person will live. Usually a family member or close friend will fill this role. Only the court can appoint a committee of the person.
A committee of the estate can make only financial and legal decisions. A family member or close friend, a trust company, or the Public Guardian and Trustee of BC can fill this role. A committee of the estate can be appointed by the court. The Public Guardian and Trustee can also be appointed as committee of the estate by a certificate of incapability under the Adult Guardianship Act. No one else can be appointed this way.
Often, people lose capacity to manage their financial and legal affairs before they lose capacity to manage themselves, so a committee of the estate is more common that a committee of the person. For example, a person may know how to cook and bathe, but not how to handle banking and legal affairs.
Committees appointed by the court (other than the Public Guardian and Trustee) are sometimes called private committees. The Public Guardian and Trustee may apply to court to be the committee if no suitable person is willing to act (see details below).
How and when could you become a committee?
You might want to be a committee if one of your family members or close friends has lost the mental capacity to make important decisions and you want to help.
To become a committee, you must apply to the BC supreme court to be appointed by an order under the Patients Property Act. But first, you must confirm that the person is mentally incapable. The person's doctor may be able to help you do that. A committee can be appointed only if 2 doctors say the person is mentally incapable.
A lawyer can help you with the required court documents. If you're applying to be committee of estate, the doctors’ statements must say the person is not able to manage their financial and legal affairs and explain why. If you're applying to be committee of person, the doctors' statements must say the person cannot manage their personal and medical decisions and explain why.
The person must be notified of your court application unless the doctors say that it would be harmful to them. Sometimes the person will oppose the application. You should also notify the person’s family members, and if you can, get their consent to your application.
Give the lawyer as much information as you can about the medical condition and financial affairs of the person. Because of privacy laws, some financial institutions may not want to give you information.
When the paperwork is ready, a lawyer can help you apply to court for an order to appoint you as committee. A lawyer can also advise you on how to act as committee.
Depending on the value of a person’s assets and income, and other circumstances, the court may order you, as committee, to post a security bond. The person's estate usually pays for the security bond and other expenses a committee incurs acting for the person.
If the person becomes capable again, they or you can apply to court to end your role as committee. You may have to get court approval of your final accounts for the person’s estate—unless the newly capable person agrees you do not have to.
If the person dies, their Role After an Adults Death.pdf committee continues to act for them until an executor or administrator is appointed for the dead person.
The Public Guardian and Trustee reviews all court applications to be appointed committee and monitors committees.
Choosing, or nominating, your own committee
If you're mentally capable, you can name (nominate) someone you want to be your committee if you ever need one. Then, if you later become mentally incapable, the court will appoint that person unless someone can show there's a good reason not to. You should see a lawyer if you want to do this because there are specific legal requirements.
What powers and duties does a committee have?
Generally, a committee has the same powers to deal with a person's estate and affairs as the person has when they are capable. But there are some things a committee can't do for a person: for example, a committee can’t change a person’s will or estate plan, vote in a general election, or consent to marriage.
Everything a committee does must be in the person’s best interests. A committee has a fiduciary responsibility. A committee must put the person’s interest ahead of their own. They cannot mix the person’s assets with their own. A committee must avoid conflict-of-interest situations. These are important duties and it can be hard to fulfil them.
The court can limit a committee’s powers. For example, it might say a committee can't sell any of the person's real estate without first getting the court’s permission or the consent of the Public Guardian and Trustee. Or the court may restrict access to an investment so that the committee can access only the income from the investment, not the investment itself.
A committee must follow the Trustee Act when they invest for a person. If they invest in things the Trustee Act does not allow, they may have to pay the estate for any losses. Unless an estate is small, a committee should get professional investment advice.
Normally, a committee can't use the person's property or get any benefit from it. There are exceptions to this—for example, if a person’s committee is their spouse. An incapable person must still support their spouse and dependent children. So a spouse who is committee can use some of the person’s assets and income for their own living expenses. Before a committee uses their spouse’s assets or income to support a family member or themselves, they should check with the Public Guardian and Trustee or a lawyer.
Responsibilities of a committee of the estate
Committees of the estate can be responsible to:
- handle the person's property
- do the person's banking (this could include borrowing money for the person, though there may be restrictions on using property as security to borrow and court permission may be required)
- pay the person's expenses
- budget for the person's family
- sell the person's property
- enter into contracts for the person and run the person's business
- deal with any lawsuits involving the person
- file the person's income tax returns
- apply for pensions and other benefits for the person
Committees must keep detailed records of all the assets, liabilities, and money coming in and going out of the person's estate. They must give periodic reports (called accounts) to the Public Guardian and Trustee (PGT). The PGT will review and decide whether to pass (or accept) the accounts. The PGT also decides how often a committee must file the accounts—from every 6 months to every 5 years. The PGT also receives and investigates reports of mismanagement by committees.
Responsibilities of a committee of the person include making medical decisions for the person and deciding where and how the person should live.
The Public Guardian and Trustee has the necessary forms, samples of accounts committees must keep, and a Handbook.pdf handbook for private committees. For more information, or to ask them to send you these documents, call 604.660.4444 in the lower mainland. Elsewhere in BC, call Service BC at 1.800.663.7867 and ask for the Public Guardian and Trustee. You can also email the office at firstname.lastname@example.org.
Committees can hire professional help for tasks that require expert advice or work, but not for things that an ordinary person could do. Any professional fees paid by the person's estate should be reasonable and necessary.
Are committees of the estate paid?
A person's estate pays a reasonable fee for the service of a committee of the estate. The size of the fee depends on the size of the estate and how much work a committee must do to manage it. The PGT decides the fee each time it approves a committee’s accounts.
Committees should keep written records of the work they do and the time they spend on the estate to show what they did, why, and how. Careful record-keeping is essential for committees.
The Public Guardian and Trustee of British Columbia
The Public Guardian and Trustee is an entity independent of the BC Government, with an office at 700-808 West Hastings Street in Vancouver. One of its duties is to be committee when no other suitable person is willing to be committee. It charges fees, set by regulation, for this service. If you think a person needs a committee and you cannot be it, or if there is a family conflict, you should contact the Public Guardian and Trustee.
The Public Guardian and Trustee also reviews all court applications to appoint a committee and makes recommendations to court about the applications, including whether a committee should post a security bond or have only limited access to the person’s assets.
The Public Guardian and Trustee also reviews all committee accounts, decides on payments to committees, and receives and investigates reports of abuse and mismanagement by committees.
Committee compared to power of attorney
Although a power of attorney might seem easier than a committee order, a person must sign it while still mentally capable of doing that. So it doesn't work if a person is already incapable. And a power of attorney becomes invalid when the person who gave it becomes mentally incapable, unless it has an enduring clause. An enduring clause means the power of attorney continues if the person becomes mentally incapable. Finally, a power of attorney deals only with legal and financial things, not personal or medical issues. Script [Power of Attorney and Representation Agreements (Script 180)|180, called “Power of Attorney and Representation Agreements,” has more on this.
Other options—four laws to promote adults’ rights to care for themselves BC has the following four laws to promote adults’ rights to care for themselves. The laws aim to help people who can't make their own decisions or who could be taken advantage of by dishonest people:
- The Representation Agreement Act
- The Health Care (Consent) and Care Facility (Admission) Act
- The Adult Guardianship Act
- The http://www.bclaws.ca/civix/document/id/complete/statreg/96383_01 Public Guardian and Trustee Act]
These laws provide other ways, besides a committee order (such as representation agreements and powers of attorney—see script 180) to help a person who is mentally incapable.
Agreement to administer federal pension benefits by a trustee—if a person who becomes mentally incapable has no assets or property but receives a pension from the Canadian government (Canada Pension Plan or CPP, Old Age Supplement or OAS, Guaranteed Income Supplement, Veteran's Pension) then a pension trustee is an option. Service Canada has more on this. Call it at 1.800.277.9914.
A committee is a non-government person appointed by the BC supreme court to manage the affairs of a person in BC who has become mentally incapable. A committee must act in the person's best interests and generally has the same power over the person's estate as the person has when they are capable. Appointing a committee is a serious legal step because it takes away a person's right to decide things for themselves.
For more information, check:
- The Office of the Public Guardian and Trustee.
- The Nidus Personal Planning Resource Centre and Registry website.
[updated June 2018]
The above was last edited by John Blois.
|© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.|