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

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

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

::(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.

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.  

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 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''.  

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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