Adult Guardianship (15:V): Difference between revisions

{{REVIEWED LSLAP | date= July 8, 2022}}

A court may declare a person incapable of managing their affairs, their person, or both. Upon making the declaration, the appointment of a committee of estate and/or person is required to allow decisions to be made on behalf of the person. A court-ordered committee and its application is a Supreme Court procedure: provincial courts do not have jurisdiction in this regard.

* A "'''committee'''" can be an appointed individual, the PGT, or a statutory property guardian

 

• Controlling the patient’s income<br>

 

• Conducting banking<br>

 

• Paying expenses<br>

 

• Selling real property

=== 2. The Court Ordered Committee Process ===

• An order must be made by the Supreme Court declaring that the patient is incapable of managing their own affairs and/or person<br>

 

• The court appoints one or more individuals as Committee of the estate and/or the person

1. Section 2 of the ''PPA'' provides that the Attorney General, a near relative or the subject, or any other person may file an application to the court for an order declaring incapability. Supreme Court Civil Rules (Rules) R. 2-1(2)(e) states that, unless R. 17-1 applies, guardianship proceedings must be commenced by way of petition.

 

2. The court will then consider the affidavits of two medical practitioners who provide their opinion on the incapacity of the subject. The medical practitioners must be members of the BC College of Physicians and Surgeons.

 

3. In addition to the medical practitioners’ affidavits, the applicant must swear an "affidavit of kindred and fortune", which as the name suggests, set out particulars of the patient’s family and financial affairs. The affidavit of kindred and fortune must be in a prescribed form (Form 3), as set out in the ''Patients Property Act Rules''.

 

4. The court then may decide whether the subject is incapable based on the affidavit material before it on the application, or it may proceed:

 

a) By converting the petition into an action. The test for determining whether a petition is to be tried was recently reviewed and amended in ''Cepuran v. Carlton'', 2022 BCCA 76. The court clarified that “a judge hearing a petition proceeding that raises triable issues is not required to refer the matter to trial. The judge has discretion to do so or to use hybrid procedures within the petition proceeding itself to assist in determining the issues, pursuant to R. 16-1(18) and R. 22-1(4)” (para 160). There are no determinative factors for referring a matter to trial; rather, the courts have discretion on a case-by-base basis to determine whether a proceeding is suitable for trial.

 

b) By order, to require the person to undergo an additional examination with either:

 

i) One or more medical practitioners other than those whose affidavits were before the court, or

 

ii) A board of 3 or more medical practitioners designated by the College of Physicians and Surgeons of British Columbia at the request of the court

5. Notice of the application to the courts must be personally served on the subject '''not less than 10 days prior''' to the date of the application hearing.  See s 2(2) of the ''PPA''.  This requirement may be waived if the court is satisfied that to serve notice of the application would injure the subject’s health, or would otherwise be inadvisable in the interests of the subject.  

 

• In order for a waiver of notice to be granted, there must be a medical affidavit advising the court that it would be injurious to the health of the adult to be served with notice of the application. The affidavit must demonstrate this clearly and provide evidence, it is not sufficient to simply restate the language of the statute. A discussion on this can be found in ''[https://www.canlii.org/en/bc/bcsc/doc/2000/2000bcsc24/2000bcsc24.html T.H.N et al v Q.V.L.]'', 2000 BCSC 24.  

• Petition (''Supreme Court Civil Rules'', BC Reg 168/2009 2-1(2))<br>

 

• Affidavit of Service (unless notice requirement was waived)<br>

 

• Affidavit of Kindred and Fortune setting out next of kin and financial circumstances of patient (''PPA Rules'', Rule 2(3))<br>

 

• Affidavit from two physicians (''PPA'', s 3(1))<br>

 

• Notice of Application to Appoint a Committee (''PPA Rules'', Rule 2(2))<br>

 

• Chamber Order to Appoint a Draft Order

The costs of all proceedings are in the discretion of the court (''PPA'' s 27).  Generally, the court orders payment of all the committee’s reasonable legal fees from the patient’s estate, theoretically so the applicant does not suffer losses for doing what, in many cases, is considered their moral obligation.  Even though the patient’s estate initially pays costs, the PGT may later review the costs on a passing of accounts to ensure that they are reasonable.  If the fees paid by the patient’s estate are unreasonable, the committee must return the excess amount to the patient’s estate.  The committee should have legal fees reviewed by the registrar of the court if unsure of their reasonableness.  

==== j) Public Guardian and Trustee (PGT) as Committee ====

The PGT is a corporation established under the ''Public Guardian and Trustee Act'' with a unique statutory role to protect the interests of British Columbians who lack legal capacity to protect their own interests.  This may include acting as committee of estate and/or person where a person needs assistance and there is no other family member or friend who can assume this role, or where there is conflict among family members and a neutral party is preferred.  

The Public Guardian and Trustee (PGT) may take steps to become committee of estate if:

• There is no valid enduring power of attorney, or the attorney is not fulfilling their role<br>

• The individual is incapable<br>

• There is a need for someone to make financial decisions<br>

• There is no suitable person available and willing to apply to be committee<br>

 

• There are no other less intrusive options  

1. The PGT may become committee of estate and/or person by Court Order.  The PGT may bring an application for the appointment or, in a proceeding to appoint a committee, where there is a conflict, one or more of the parties may seek an Order that the PGT be appointed.  The PGT will provide a response in the proceedings setting out whether they are prepared to take on this role.  Typically, the PGT will only agree to act as committee of estate.  A committee of person is required to make very personal decisions on behalf of the person and a family member or friend is usually more appropriate to act in this role if it is required.     

2. As of December 1, 2014, the PGT may also become committee of estate by a legislative process set out in the ''AGA''.  See below.

== B. Adult Guardianship Act: Legislative Process Committeeship ('Statutory Property Guardian') ==

The other process by which a committeeship can be created is through the legislative process outlined by the ''AGA''. A committeeship created in this manner is referred to in the legislation as a ‘Statutory Property Guardian’. The main difference between a court order committeeship and a legislative process committeeship, is that under the latter, only the PGT can become committee and solely over the adult’s financial affairs. However, once the Public Guardian and Trustee becomes a Statutory Property Guardian, the ''PPA'' states that Statutory Property Guardian is a committee under the ''PPA''.  In short, the process for the PGT to become a Statutory Property Guardian is through the ''AGA'' but then their duties are defined by the ''PPA''.  

=== 1. The Legislative Process Committeeship Process ===

1. A "qualified" health care provider is defined in s 3(2) of the ''Statutory Property Guardianship Regulations'' [''SPGR''].  It includes a health care provider as defined in the ''Health Professions Act'' and the ''Social Workers Act'', as well as registrants of the British Columbia College of Social Workers; BC College of Nursing Professionals; College of Occupational Therapists of British Columbia; and registrants of the College of Psychologists of British Columbia.  

 

2. The qualified health care provider then assesses the adult according to the prescribed procedures and if satisfied, prepares a Report of Assessment of Incapability along with a Details of Assessment for review by a health authority designate.  

 

a) The procedure for an incapability assessment is outlined in s 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 an ordered review.  

 

i) The assessment is composed of two parts: a medical component and a functional component.   

 

ii) Prior to conducting the assessment, the adult must be given notice of the purpose of the assessment and their rights (see ''SPGR'' s 6(1)(a-f)

 

iii) Section 10 outlines that an assessment report must be completed by filling out a Form 1 and that details of the assessment must be attached.  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.  

 

iv) 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. A health authority designate is defined by s 4 of the ''SPGR''.  

 

3. Upon receiving Form 1, the health authority designate may issue a Certificate of Incapability if they are satisfied the criteria has been met. The criteria should be set out here. The designate must also have consulted with the PGT and notified the adult and, if possible, any spouse or near relative of the adult, of the intention to issue a Certificate of Incapability.  

 

a) The criteria are provided by sections 32(3)(a) to (e) of the ''AGA''. It is important to note that the Certificate of Incapability 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 32(3)(e)).  

 

b) The notice required to the adult and a near relative is outlined in s 11 of the ''SPGR''.  Section 11(3) states that the adult or near relative be given at least 10 days to respond. Notice is given in writing of the intention to issue a Certificate of Incapability. 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).  

 

4. Once the Certificate of Incapability is signed by the health authority designate, the certificate must be forwarded to the PGT.  The adult and a spouse or near relative must be informed that the Certificate of Incapability has been issued 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.  

 

b) The PGT becomes the statutory property guardian on the date that the certificate was signed by the health authority designate.  

i) The PGT must inform the adult and, if information is available, a spouse or near relative, that the PGT has the power to manage the adult’s financial affairs (AGA s 33(2)). Tand that the adult, or person acting on their behalf, may request a second assessment and potentially a court review (''AGA'' s 33(3)). 

 

ii) The adult or someone on behalf of the adult may request a second assessment within 40 days of being notified (''AGA'' s 60(2))

 

See  [http://www.trustee.bc.ca/reports-and-publications/Documents/A%20Guide%20to%20the%20Certificate%20of%20Incapability%20Process%20under%20the%20Adult%20Guardianship%20Act.pdf ''A Guide to the Certificate of Incapability Process Under the Adult Guardianship Act''].

1.  If the PGT informs the body that designated the health authority designate who issued the certificate of incapability that a reassessment should occur.  

 

2.  If the adult requests a reassessment and has not been reassessed within the preceding 12 months

 

3.  The court orders a reassessment under s 35(3) of the ''AGA''.  

• The adult <br>

 

• The body that designated the health authority who issued the certificate of incapability<br>

• If ordered by the court, a person appointed under the ''Patients Property Act'', as committee for the adult following a declaration under that Act that the adult is incapable of managing themselves  

During this review, the court may confirm the determination of incapability, or reject the determination of incapability and order that the statutory property guardianship is ended.  

1. The PGT is satisfied that the adult no longer needs a Statutory Property Guardian.  

 

a) Notice must be provided to the adult that they no longer have a Statutory Property Guardian.

 

2. After a second assessment, the health authority designate accepts that the adult is no longer incapable.  

 

a) The adult will be provided a form entitled 'Health Authority Designate Acceptance of Determination of Capability.'

 

b) Notice must be provided to the PGT  

 

3. A court order after a review of an incapability assessment under s 35 of the ''AGA''  

 

4. The court appoints a committee under the ''PPA''  

• Passing accounts before the PGT, at the times directed by the PGT (''PPA'' s 10(d)). This includes, if the PGT requires it, a true inventory of the whole estate of the patient. The patient’s assets are not the committee’s, and thus the committee must account to the PGT for all transactions.   Provisions regulating this duty are contained in s 10 of the ''PPA'' and in Rule 21-5 of the rules governing the Act in the ''Supreme Court Civil Rules'', BC Reg 168/2009<br>

 

• Upon the patient’s death, the committee is no longer required to pass accounts before the PGT, but must provide the committee’s accounts to the executor or administrator of the patient’s estate, or, if the committee and the executor or administrator of the patient’s estate are the same person, to the beneficiaries of the patient’s estate (''PPA'' s 24)<br>

 

• Paying patient’s maintenance, care and treatment costs out of the estate (''PPA'' s 23)<br>

 

• Bringing an action, if necessary, on behalf of the patient as their litigation guardian (''PPA'' s 22)<br>

 

• Exercising the rights, powers, duties, and privileges of the patient after the patient’s death, as if they had not died, and serving as executor or administrator until letters probate of the will or letters of administration to the estate of the patient are granted and notice in writing is served upon the committee (''PPA'' s 24)<br>

 

• Filing income tax returns and applying for pensions <br>

For investing money, a committee is a trustee within the meaning of the ''Trustee Act'' (''PPA'', s 15(2)), which means a committee must comply with the provisions of this Act when it comes to investing the patient’s money.  For example, the Committee must meet a certain standard of care in making investment decisions and freedom to delegate investment decisions is limited.   

'''NOTE:''' An Enduring Power of Attorney or representation agreement is ''terminated'' when a person becomes a ‘patient’ by being declared incapable of managing their 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: ''' The Public Guardian and Trustee has helpful information for private committees at www.trustee.bc.ca.

If a person regains their mental capability and ceases to be a ‘patient,’ that person, or the committee (other than the PGT), may apply to the court for the discharge of the committee (''PPA'' s 12).  Notice in writing of this application must be provided to the PGT 10 days prior to the application.  The judge who hears the application may, and shall if asked by the PGT, order the committee to pass accounts. The order declaring the person capable may also discharge the committee upon passing accounts or upon receipt of a waiver of that requirement from the adult.  There will almost always be outstanding accounts.  The fees payable will be rescinded as of the date of the order and discharged on the passing of accounts.  

'''NOTE:''' At this time there is no section under the ''PPA'' governing the discharge of the PGT as committee.

A discharged committee, 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)). Disagreements between the person and the committee regarding management of the estate does not warrant discharging the committee.  

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