Guardianship in BC: Committeeship (15:VII) - Revision history

LSLAP at 20:18, 23 November 2019

2019-11-23T20:18:15Z

← Older revision		Revision as of 20:18, 23 November 2019
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	A discharged committee, whether it be a private committee or the PGT, is released from liability concerning the management of the estate except in respect of undisclosed acts, neglects, defaults, or accounts, or where the committee was dishonest or unlawful in their conduct (PPA s 13(4)(b)). A difference of opinion between the person and committee as to how the estate should have been handled is not by itself a reason to support a committee’s discharge.		A discharged committee, whether it be a private committee or the PGT, is released from liability concerning the management of the estate except in respect of undisclosed acts, neglects, defaults, or accounts, or where the committee was dishonest or unlawful in their conduct (PPA s 13(4)(b)). A difference of opinion between the person and committee as to how the estate should have been handled is not by itself a reason to support a committee’s discharge.




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LSLAP at 08:13, 15 August 2019

2019-08-15T08:13:55Z

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LSLAP at 01:29, 13 August 2017

2017-08-13T01:29:48Z

← Older revision		Revision as of 01:29, 13 August 2017
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	It is important to keep in mind that the two different processes for creating a Committeeship are quite different from each other and are governed by different pieces of legislation. Students should identify which type of Committeeship is present or being sought. In the rest of this section a Committeeship created under the PPA is referred to as a court order Committeeship while one created under the AGA is referred to as a statutory process Committeeship. These are not technical or legal phrases but used solely for clarity. Details for the two types are produced below.		It is important to keep in mind that the two different processes for creating a Committeeship are quite different from each other and are governed by different pieces of legislation. Students should identify which type of Committeeship is present or being sought. In the rest of this section a Committeeship created under the PPA is referred to as a court order Committeeship while one created under the AGA is referred to as a statutory process Committeeship. These are not technical or legal phrases but used solely for clarity. Details for the two types are produced below.

	~~'''IMPORTANT TIP FOR STUDENTS:''' A client seeking advice~~ or ~~legal information on Commiteeships may be a concerned family member or friend wanting information about~~ the ~~process from the standpoint~~ of ~~acting~~ as ~~Committee~~ to ~~a loved one who has lost capacity. Alternatively~~, the ~~client may be~~ the individual ~~adult for whom a Committee has been appointed. In either instance~~, the ~~guardianship process can~~ be ~~emotional, and is often connected~~ to ~~complex family dynamics and longstanding conflicts.~~		An individual subject to Committeeship, or the threat of Committeeship, may present as extremely upset, angry or confused, especially if there were no court proceedings in which they were involved. In order to assist this this individual best possible way, it is important to understand of the gravity of the situation for the individual, and why the individual may be feeling this way. Factors to keep in mind include:

	An individual subject to Committeeship, or the threat of Committeeship, may present as extremely upset, angry or confused, especially if there were no court proceedings in which they were involved. In order to assist this client in the best possible way, it is important that the student is aware of the gravity of the situation for the client, and that the student appreciates why the client may be feeling this way. Factors to keep in mind include:
	*The effect of a Committeeship is that the adult loses his or her decision-making rights and is considered a non-person under the law;		*The effect of a Committeeship is that the adult loses his or her decision-making rights and is considered a non-person under the law;
	*The adult will likely have a Committee for the rest of his or her life;		*The adult will likely have a Committee for the rest of his or her life;
	*Committeeship is difficult and costly to reverse;		*Committeeship is difficult and costly to reverse;
	*The Committee, subject to some limitations, has the power to do almost anything the adult could do for themselves, if he or she were mentally capable. This authority is wide ranging and may include consenting to healthcare, determining where the adult will live, what the adult can purchase, what medications he or she will take, etc. As such, the adult becomes highly dependent on the Committee and is vulnerable to abuse and neglect.		*The Committee, subject to some limitations, has the power to do almost anything the adult could do for themselves, if he or she were mentally capable. This authority is wide ranging and may include consenting to healthcare, determining where the adult will live, what the adult can purchase, what medications he or she will take, etc. As such, the adult becomes highly dependent on the Committee and is vulnerable to abuse and neglect.
	*The test of mental capacity is a legal test, based on the opinion of two doctors. However, the adult may remain able to manage independent decision-making in some aspect(s) of his or her life, and the adult may, at first glance, present as capable.		*The test of mental capacity is a legal test, based on the opinion of two doctors. However, the adult may remain able to manage independent decision-making in some aspect(s) of his or her life, and the adult may, at first glance, present as capable.


	:'''NOTE:''' A court ordered Committeeship and its application is a Supreme Court procedure. Provincial courts do not have the jurisdiction required. Consequently, LSLAP cannot represent clients who are applying for Committeeship, nor can LSLAP complete the required forms and documents required for applications. The role of LSLAP in assisting clients with Committeeship matters is strictly informational and advisory.		:'''NOTE:''' A court ordered Committeeship and its application is a Supreme Court procedure. Provincial courts do not have the jurisdiction required. Consequently, LSLAP cannot represent clients who are applying for Committeeship, nor can LSLAP complete the required forms and documents required for applications. The role of LSLAP in assisting clients with Committeeship matters is strictly informational and advisory.

	~~Clinicians~~ may consult ~~CLAS and~~ the Public Guardian and Trustee for more information on Committeeship. The Public Guardian and Trustee produces a number or helpful publications on Committeeships. The resources can be found at http://www.trustee.bc.ca/reports_publications/index.html. ~~Clients may be advised~~ to contact an Estate and Guardianship Litigation Lawyer, possibly through the Law Society’s Lawyer Referral Service (604-687-3221).		Individuals may consult the Public Guardian and Trustee for more information on Committeeship. The Public Guardian and Trustee produces a number or helpful publications on Committeeships. The resources can be found at http://www.trustee.bc.ca/reports_publications/index.html. It is also advisable to contact an Estate and Guardianship Litigation Lawyer, possibly through the Law Society’s Lawyer Referral Service (604-687-3221).

	== A. Court Ordered Committeeship ==		== A. Court Ordered Committeeship ==

Desy Wahyuni at 18:38, 28 October 2016

2016-10-28T18:38:43Z

← Older revision		Revision as of 18:38, 28 October 2016
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	*The test of mental capacity is a legal test, based on the opinion of two doctors. However, the adult may remain able to manage independent decision-making in some aspect(s) of his or her life, and the adult may, at first glance, present as capable.		*The test of mental capacity is a legal test, based on the opinion of two doctors. However, the adult may remain able to manage independent decision-making in some aspect(s) of his or her life, and the adult may, at first glance, present as capable.

	'''NOTE:''' A court ordered Committeeship and its application is a Supreme Court procedure. Provincial courts do not have the jurisdiction required. Consequently, LSLAP cannot represent clients who are applying for Committeeship, nor can LSLAP complete the required forms and documents required for applications. The role of LSLAP in assisting clients with Committeeship matters is strictly informational and advisory.		:'''NOTE:''' A court ordered Committeeship and its application is a Supreme Court procedure. Provincial courts do not have the jurisdiction required. Consequently, LSLAP cannot represent clients who are applying for Committeeship, nor can LSLAP complete the required forms and documents required for applications. The role of LSLAP in assisting clients with Committeeship matters is strictly informational and advisory.

	Clinicians may consult CLAS and the Public Guardian and Trustee for more information on Committeeship. The Public Guardian and Trustee produces a number or helpful publications on Committeeships. The resources can be found at http://www.trustee.bc.ca/reports_publications/index.html. Clients may be advised to contact an Estate and Guardianship Litigation Lawyer, possibly through the Law Society’s Lawyer Referral Service (604-687-3221).		Clinicians may consult CLAS and the Public Guardian and Trustee for more information on Committeeship. The Public Guardian and Trustee produces a number or helpful publications on Committeeships. The resources can be found at http://www.trustee.bc.ca/reports_publications/index.html. Clients may be advised to contact an Estate and Guardianship Litigation Lawyer, possibly through the Law Society’s Lawyer Referral Service (604-687-3221).
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	If a patient (as opposed to the Committee) transfers his or her property while incapable, for instance, by selling land or giving a gift, the transfer will be voidable (i.e. deemed to never have occurred at the option of the Committee), unless full and valuable consideration was paid for the property, or a reasonable person would not have known that the adult was incapable (AGA, s 60.2).		If a patient (as opposed to the Committee) transfers his or her property while incapable, for instance, by selling land or giving a gift, the transfer will be voidable (i.e. deemed to never have occurred at the option of the Committee), unless full and valuable consideration was paid for the property, or a reasonable person would not have known that the adult was incapable (AGA, s 60.2).

	'''NOTE:''' An Enduring Power of Attorney or representation agreement is ''terminated'' when a person becomes a ‘patient’ by being declared incapable of managing his or her affairs by court order (PPA, s 19). Therefore, the authority of a court order Committee will never conflict with that conferred by a Power of Attorney. Where a Committee is appointed under the AGA statutory property guardianship rules, any EPOA or s. 7 RA for routine financial affairs is suspended. (PPA, s 19.1)		:'''NOTE:''' An Enduring Power of Attorney or representation agreement is ''terminated'' when a person becomes a ‘patient’ by being declared incapable of managing his or her affairs by court order (PPA, s 19). Therefore, the authority of a court order Committee will never conflict with that conferred by a Power of Attorney. Where a Committee is appointed under the AGA statutory property guardianship rules, any EPOA or s. 7 RA for routine financial affairs is suspended. (PPA, s 19.1)

	=== 3. Remuneration ===		=== 3. Remuneration ===
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	A Committee has a first lien upon the estate of the patient or the person who has ceased to be a patient (PPA, s 14(4)).		A Committee has a first lien upon the estate of the patient or the person who has ceased to be a patient (PPA, s 14(4)).

	'''NOTE:''' The Public Guardian and Trustee has helpful information for private committees at: http://www.trustee.bc.ca.		:'''NOTE:''' The Public Guardian and Trustee has helpful information for private committees at: http://www.trustee.bc.ca.

	== E. Discharge of a Committee ==		== E. Discharge of a Committee ==
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	Where the Public Guardian and Trustee is acting as Committee, the Public Guardian and Trustee is liable for payments made out of an estate that were not mandated by court order, if they were not reasonable in the circumstances. The existence of a court order mandating payments at a lower level would make voluntary higher payments unreasonable: see ''Wood v British Columbia (Public Trustee)'', (1986) 25 DLR (4th) 356.		Where the Public Guardian and Trustee is acting as Committee, the Public Guardian and Trustee is liable for payments made out of an estate that were not mandated by court order, if they were not reasonable in the circumstances. The existence of a court order mandating payments at a lower level would make voluntary higher payments unreasonable: see ''Wood v British Columbia (Public Trustee)'', (1986) 25 DLR (4th) 356.


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Desy Wahyuni: Desy moved page Adult Guardianship and Committeeship (15:VII) to Guardianship in BC: Committeeship (15:VII): 2016 revision

2016-08-16T21:40:53Z

Desy moved page Adult Guardianship and Committeeship (15:VII) to Guardianship in BC: Committeeship (15:VII): 2016 revision

← Older revision	Revision as of 21:40, 16 August 2016
(No difference)

Desy Wahyuni: /* 1. Declaring an Adult Incapable */

2016-06-26T05:37:29Z

1. Declaring an Adult Incapable

Desy Wahyuni: /* 3. Release from Liability */

2016-06-25T05:33:53Z

3. Release from Liability

← Older revision		Revision as of 05:33, 25 June 2016
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	A discharged Committee, whether it be a private Committee or the Public Guardian and Trustee, is released from liability concerning the management of the estate except in respect of undisclosed acts, neglects, defaults, or accounts, or where the Committee was dishonest or unlawful in his or her conduct (PPA, s 13(4)(b)). A difference of opinion between the person and Committee as to how the estate should have been handled is not by itself a reason to support a Committee’s discharge.		A discharged Committee, whether it be a private Committee or the Public Guardian and Trustee, is released from liability concerning the management of the estate except in respect of undisclosed acts, neglects, defaults, or accounts, or where the Committee was dishonest or unlawful in his or her conduct (PPA, s 13(4)(b)). A difference of opinion between the person and Committee as to how the estate should have been handled is not by itself a reason to support a Committee’s discharge.

	Where the Public Guardian and Trustee is acting as Committee, the Public Guardian and Trustee is liable for payments made out of an estate that were not mandated by court order, if they were not reasonable in the circumstances. The existence of a court order mandating payments at a lower level would make voluntary higher payments unreasonable: see ''Wood v British Columbia (Public Trustee)'', (1986) 25 DLR (4th) 356.		Where the Public Guardian and Trustee is acting as Committee, the Public Guardian and Trustee is liable for payments made out of an estate that were not mandated by court order, if they were not reasonable in the circumstances. The existence of a court order mandating payments at a lower level would make voluntary higher payments unreasonable: see ''Wood v British Columbia (Public Trustee)'', (1986) 25 DLR (4th) 356.

	~~15-48~~

Desy Wahyuni: /* D. Serving as a Committee */

2016-06-25T05:33:33Z

D. Serving as a Committee

@@ Line 215: / Line 215: @@
 *Filing income tax returns and applying for pensions.
 *If a person is appointed as Committee for a person under disability, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders as per Rule 20-2 of the Supreme Court Civil Rules.
 -48

Desy Wahyuni: /* 4. Ending Committeeship (Statutory Property Guardian Authority under the A GA ) */

2016-06-25T05:15:26Z

4. Ending Committeeship (Statutory Property Guardian Authority under the A GA )

@@ Line 196: / Line 196: @@
 #A court order after a review of an incapability assessment under s. 35 of  the AGA.
 #The court appoints a committee under the PPA.
 -48

Desy Wahyuni: /* 1. Declaring an Adult Incapable */

2016-06-25T04:57:31Z

1. Declaring an Adult Incapable

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 #Once the Certificate of Incapability is signed by the health authority designate, the certificate must be forwarded to the Public Guardian  and Trustee. The adult and, if contact information is known, a spouse or near relative must be informed of the certificate and provided with a copy.
 #*a) The BC Government has created a form called “Health Authority Designate Concluding Letter” for the purpose of providing notice to the adult (See Appendix U).
+=== 2. Reassessment of Incapability ===
 -48

← Older revision		Revision as of 05:37, 26 June 2016
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	#*a) The proper procedures of an incapability assessment are outlined in sections 5 through 10 of the SPGR. These procedures are also required for any subsequent reassessment of the adult’s incapability such as a review requested by the adult or a order ordered review.		#*a) The proper procedures of an incapability assessment are outlined in sections 5 through 10 of the SPGR. These procedures are also required for any subsequent reassessment of the adult’s incapability such as a review requested by the adult or a order ordered review.
	#**i) The assessment is composed of two parts: a medical component (see [[Assessment of Financial Incapability - Medical Component AGA Part 2.1 (15:App O) \| Appendix O]]) and a functional component (see [[Assessment of Financial Incapability - Functional Component AGA Part 2.1 (15:App P) \| Appendix P]]).		#**i) The assessment is composed of two parts: a medical component (see [[Assessment of Financial Incapability - Medical Component AGA Part 2.1 (15:App O) \| Appendix O]]) and a functional component (see [[Assessment of Financial Incapability - Functional Component AGA Part 2.1 (15:App P) \| Appendix P]]).
	#**ii) Prior to conducting the assessment the adult must be given notice of the purpose of the assessment and their rights (see Appendix P)		#**ii) Prior to conducting the assessment the adult must be given notice of the purpose of the assessment and their rights (see [[Adult Information Sheet (15:App Q) \| Appendix Q]])
	#**i) Section 10 outlines that an assessment report must be completed by filling out Form 1 (see Appendix Q) and that details of the assessment must be attached (see Appendix R). The qualified health care provider must also inform the adult of the result and the determination and offer the adult a copy of Form 1 and the details attached.		#**i) Section 10 outlines that an assessment report must be completed by filling out Form 1 (see [[Form 1: Report of Assessment of Incapability (15:App R) \| Appendix R]]) and that details of the assessment must be attached (see [[Details of Assessment (15:App S) \| Appendix S]]). The qualified health care provider must also inform the adult of the result and the determination and offer the adult a copy of Form 1 and the details attached.
	#**ii) The qualified health care provider does not need to inform the adult or offer a copy of the report if they have reason to believe that doing so may result in serious physical or mental harm to the adult or significant damage or loss to the adult's property.		#**ii) The qualified health care provider does not need to inform the adult or offer a copy of the report if they have reason to believe that doing so may result in serious physical or mental harm to the adult or significant damage or loss to the adult's property.
	#*b) A health authority designate is defined by section 4 of the SPGR.		#*b) A health authority designate is defined by section 4 of the SPGR.
	#Upon receiving Form 1, the health authority designate may issue a report of incapability if they are satisfied of a number of criteria. The designate must also have consulted with the Public Guardian and Trustee and notified the adult and, if possible, any spouse or near relative of the adult, of the intention to issue a certificate.		#Upon receiving Form 1, the health authority designate may issue a report of incapability if they are satisfied of a number of criteria. The designate must also have consulted with the Public Guardian and Trustee and notified the adult and, if possible, any spouse or near relative of the adult, of the intention to issue a certificate.
	#*a) The criteria are provided by sections 3(a) through 3(e) of the AGA. Important to note, the certificate cannot be signed if the adult has granted power over all of the adult's financial affairs to an attorney under an enduring power of attorney, unless that attorney is not complying with the attorney's duties under the ''Power of Attorney Act'' or the enduring power of attorney, as applicable (AGA, s 3(e)).		#*a) The criteria are provided by sections 3(a) through 3(e) of the AGA. Important to note, the certificate cannot be signed if the adult has granted power over all of the adult's financial affairs to an attorney under an enduring power of attorney, unless that attorney is not complying with the attorney's duties under the ''Power of Attorney Act'' or the enduring power of attorney, as applicable (AGA, s 3(e)).
	#*b) The notice required to the adult and a near relative is outlined in section 11 of the SPGR. Section 11(3) states that the adult or near relative be given at least 10 days to respond. The BC Government has created a form called “Health Authority Designate Notice of Intention to Issue a Certificate of Incapability” for the purposes of this notification. (See Appendix S).		#*b) The notice required to the adult and a near relative is outlined in section 11 of the SPGR. Section 11(3) states that the adult or near relative be given at least 10 days to respond. The BC Government has created a form called “Health Authority Designate Notice of Intention to Issue a Certificate of Incapability” for the purposes of this notification. (See [[Health Authority Designate Notice of Intention to Issue a Certificate of Incapability (15:App T) \| Appendix T]]).
	#**i) Notification does not need to be provided to the adult or near relative if the designate has reason to believe that doing so may result in serious physical or mental harm to the adult or significant damage or loss to the adult's property.		#**i) Notification does not need to be provided to the adult or near relative if the designate has reason to believe that doing so may result in serious physical or mental harm to the adult or significant damage or loss to the adult's property.
	#*c) The certificate of incapability is Form 2 (SPGR, s 12; see Appendix T).		#*c) The certificate of incapability is Form 2 (SPGR, s 12; see [[Form 2: Certificate of Incapability (15:App U) \| Appendix U]]).
	#Once the Certificate of Incapability is signed by the health authority designate, the certificate must be forwarded to the Public Guardian and Trustee. The adult and, if contact information is known, a spouse or near relative must be informed of the certificate and provided with a copy.		#Once the Certificate of Incapability is signed by the health authority designate, the certificate must be forwarded to the Public Guardian and Trustee. The adult and, if contact information is known, a spouse or near relative must be informed of the certificate and provided with a copy.
	#*a) The BC Government has created a form called “Health Authority Designate Concluding Letter” for the purpose of providing notice to the adult (See Appendix U).		#*a) The BC Government has created a form called “Health Authority Designate Concluding Letter” for the purpose of providing notice to the adult (See [[Health Authority Designate Concluding Letter (15:App V) \| Appendix V]]).
	#*b) The Public Guardian and Trustee becomes the Committee of the adult on the date that the certificate was signed by the health authority designate.		#*b) The Public Guardian and Trustee becomes the Committee of the adult on the date that the certificate was signed by the health authority designate.
	#**i) The Public Guardian and Trustee must inform the adult and, if contact information is known, a spouse or near relative that the Public Guardian and Trustee has power to manage the adult’s financial affairs and that the adult has the right to request a second assessment and potentially a court review (AGA, s 33).		#**i) The Public Guardian and Trustee must inform the adult and, if contact information is known, a spouse or near relative that the Public Guardian and Trustee has power to manage the adult’s financial affairs and that the adult has the right to request a second assessment and potentially a court review (AGA, s 33).
	#**ii) The adult or someone on behalf of the adult, may request a second assessment within 40 days of being notified.		#**ii) The adult or someone on behalf of the adult, may request a second assessment within 40 days of being notified.

	=== 2. Reassessment of Incapability ===		=== 2. Reassessment of Incapability ===