Adult Guardianship (15:V): Difference between revisions

Latest revision as of 00:30, 3 September 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 2, 2024.

In BC, a person or the Public Guardian and Trustee (the “PGT”) may be appointed to manage the legal, financial and/or personal and health care decisions for another person.

The Patients Property Act (PPA) allows a judge to appoint a committee (pronounced caw-mi-TEE, with an emphasis on the end of the word). A court appointed committee steps into the shoes of the adult and is authorized to make legal and financial decisions (committee of estate) and/or personal and health care decisions (committee of person) on behalf of an adult who has been declared incapable of making those decisions by the Court.

Part 2.1 of the Adult Guardianship Act (AGA) contains a statutory process by which the PGT becomes statutory property guardian. As statutory property guardian, the PGT has the same authority as a committee of estate and will make legal and financial decisions on behalf of the adult.

Adults may consult CLAS and the Public Guardian and Trustee for more information on committeeship. The Public Guardian and Trustee produces a number of helpful publications on committeeships. The resources can be found at http://www.trustee.bc.ca/reports-and-publications/Pages/default.aspx. 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. Patients Property Act: Court-Ordered Committeeship

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.

Section 1 of the PPA provides the following definitions:

A "patient" is a person who is in incapable of managing their affairs or themselves, due to mental infirmity, disease, age etc.
A "committee" can be an appointed individual, the PGT, or a statutory property guardian.

1. Types of Committees

a) Committee of the Estate

A committee of the estate has the authority to make financial and legal decisions on the patient’s behalf. This routinely includes:

Controlling the patient’s income
Conducting banking
Paying expenses
Selling real property

b) Committee of the Person

A committee of the person holds the authority to make decisions regarding the patient’s health and well-being, place of residence, and admission to a care facility.

A committee of the person can only be appointed by the court.

A patient may have either a committee of the estate, a committee of the person, or both. It may be that the same individual is appointed to a committeeship comprising both estate and person, or it may be that separate individuals are appointed to each committeeship.

2. The Court Ordered Committee

There are two steps involved in appointing a committee for an individual who is incapable:

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) Declaration of Patient Incapability

An individual must be declared incapable of managing their affairs before a committee of estate can be appointed. Similarly, a person must be declared incapable of managing themselves before a committee of person is appointed.

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 T.H.N et al v Q.V.L., 2000 BCSC 24.

In summary, the court application must include:

Petition (Supreme Court Civil Rules, BC Reg 168/2009 2-1(2))
Affidavit of Service (unless notice requirement was waived)
Affidavit of Kindred and Fortune setting out next of kin and financial circumstances of patient (PPA Rules, Rule 2(3))
Affidavit from two physicians (PPA, s 3(1))
Notice of Application to Appoint a Committee (PPA Rules, Rule 2(2))
Chamber Order to Appoint a Draft Order

While it is not required to include consent of the next of kin, it is recommended. See below.

b) Resisting a Declaration of Incapability

If the subject of the application wishes to oppose it, they are entitled to be represented at the hearing either in person or through counsel.

c) Challenging Affidavits

The medical affidavits provided should not be older than six months, and should clearly lay out the diagnosis, clinical findings, and prognosis of the patient. Under the PPA, s 5(2), the judge may order that the subject be examined by one or more duly qualified medical practitioners other than those whose affidavits were before the court. The judge may also order an examination by a board of three or more duly qualified medical practitioners designated by BC’s College of Physicians and Surgeons.

Section 5(3) of the PPA provides that the judge must order such an examination if the subject asks unless the court or judge is satisfied that the person is not mentally competent to form and express the request. However, the person does not need to wait for the courts order to present other evidence of their capability or their own independent medical affidavit evidence.

d) Subsequent Applications

If a person is declared incapable by the court, that person can apply to the court after one year, for a declaration that they are no longer incapable. However, such an application cannot be made by the person or anyone else more than once per year, except by leave of a judge. Affidavit evidence of two medical practitioners will be required to support the application (PPA s 4).

e) Appointment of a Committee

Once the patient has been declared incapable, the judge will appoint a committee. This appointment is governed by the PPA. If the court does not appoint a committee, the role defaults to the PGT (PPA s 6).

f) Private Committee

A family member, friend, or any other person can apply to the court to become a committee of the patient.

The PPA, Patient Property Act Rules, BC Reg 311/76 (PPA Rules) and the Supreme Court Civil Rules, BC Reg 168/2009 govern the application process.

Although the PPA does not say who else should be served, in practice the proposed committee should obtain consents to their appointment as committee from next-of-kin, or if they do not consent, serve the next-of-kin with the application and supporting affidavits.

If the committee was nominated by the patient prior to incapability, then the written nomination should also be included (see below). In addition, if the applicant was appointed attorney, representative or executor, it would be useful to include proof of this in the application. If they were appointed as attorney, representative or executor, they will likely be exempted from the requirement to post security.

g) Notice to the Public Guardian and Trustee

Section 7 of the PPA provides that notice in writing of the application must be served on the Public Guardian and Trustee not less than 10 days prior to the hearing of the application and, if applicable, to a committee already appointed. The PGT can review the application and oppose the appointment if the applicant is considered unsuitable. The PGT may also impose terms on the committee or make recommendations to the court that conditions be imposed on the committee. The PGT will file a Response, setting out the position of the PGT on the appropriateness of the applicant to act as committee and will make recommendations with respect to bonding or restrictions upon the committee’s management of the adult’s affairs.

h) Nomination of Committee by Patient

Under s 9 of the PPA, an individual has the power to nominate a committee of their choice. However, the person nominated cannot serve as a committee until appointed by the court. The nomination must be in writing and signed by the person when they were of full age and of sound and disposing mind (i.e. before the court declares them incapable). A person may want to execute a nomination and have a lawyer hold it in reserve to be released if there is an application for the appointment of a committee.

The nomination must be executed in accordance with the requirements for the making of a will under the Wills, Estates and Succession Act (WESA), which are that it must be in writing, signed by the nominator and properly witnessed (WESA s 37).

Note that members of military forces are exempt from some of the formal requirements; see the WESA s 38.

Other than compliance with the WESA, there are no formal requirements for the nomination of a committee. Therefore, a brief, clear statement may be best.

E. g.: "In the event of my becoming mentally incapacitated, I hereby nominate <name of nominee> as my committee. <Signed and Dated. > Witnessed in the presence of the signatory, who signed in our presence. <Signature of Witnesses>."

Each witness must be present at the time the other witness ascribed their name on the document. For a full precedent, see Wills Precedents: An Annotated Guide, Continuing Legal Education Society of British Columbia, 2019 (Bogardus, Wetzel & Hamilton).

If the nomination is in proper form, it will later be submitted with the application for the appointment of a committee. The judge shall appoint the committee that has been so nominated "unless there is good and sufficient reason for refusing the appointment" (PPA s 9).

i) Costs

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 recent case of Wong (Re), 2023 BCSC 22 reiterates that the costs of all proceedings are in the discretion of the court. In para 14 of Wong (Re), the court acknowledged that the default approach is to award special costs to all parties to a committeeship application whose good faith participation

was effected solely in the patient’s best interests, and
was unmotivated by the possibility of personal benefit or other improper ulterior considerations.

However, in para 14, Wong (Re) confirms that the Court may depart from this approach due to

concerns regarding an applicant’s motives,
how the applicant conducted the proceeding, and
the estate’s ability to bear a costs order.

Another recent case Horton (Re), 2020 BCSC 87 is an example of the court deciding not to award costs in favour of either child who submitted competing applications for appointment as committee of the estate and person of their parent. Where committee petition is contested, costs payable from patient’s estate are not guaranteed to be granted to the applicants. In particular, competing petitions driven by animosity or power struggle may not be awarded the costs as explained in Horton (Re).

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
The individual is incapable
There is a need for someone to make financial decisions
There is no suitable person available and willing to apply to be committee
There are no other less intrusive options

The PGT charges a fee to provide estate management services in accordance with the Public Guardian and Trustee Fees Regulation, BC Reg 312/2000 [PGT Fees Regulation].

The PGT can become committee of estate and/or person in one of two ways:

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

For more information, please visit the PGT website: https://www.trustee.bc.ca/Pages/default.aspx.

B. Adult Guardianship Act: Statutory Property Guardian

The PGT may become statutory property guardian through a legislative process outlined in the AGA. A statutory property guardian is the equivalent to a committee of estate and has the duties and responsibilities to the adult as set out in the PPA.

1. The Legislative Committeeship Process

a) Assessment of Incapability

Several steps are required before an adult may be certified as incapable under the AGA.

Any individual can notify the PGT and the PGT can conduct an investigation to determine whether intervention is warranted. If it is found to be so, the PGT can request an assessment of incapability by a qualified health care provider.

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 A Guide to the Certificate of Incapability Process Under the Adult Guardianship Act.

b) Reassessment of Incapability

Once a Certificate of Incapability has been issued and the time for a second assessment has passed, or the second assessment confirms the assessment of incapability, s 34 of the AGA outlines three different ways that a reassessment can be made of an adult’s incapability.

If the PGT informs the body that designated the health authority designate who issued the certificate of incapability that a reassessment should occur.
If the adult requests a reassessment and has not been reassessed within the preceding 12 months
The court orders a reassessment under s 35(3) of the AGA.

c) Court Review of Assessment of Incapability

After a second reassessment has occurred and the adult is still declared incapable, the adult can apply for a court review.

The parties to the court review are:

The adult
The body that designated the health authority who issued the certificate of incapability
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

The court may order another reassessment of the adult’s incapability.

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.

2. Ending Committeeship (Statutory Property Guardian Authority Under the AGA)

A Statutory Property Guardianship can be ended in one of four ways:

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

3. Serving as a Committee

a) Duties

The committee’s general duty is to exercise their powers for the benefit of the patient, having regard to the nature and value of the patient’s property, and the patient’s circumstances and needs and those of their family (PPA s 18). The committee is fiduciary and is not allowed to use or take any benefit from their position. When the patient has assets, the PGT will often recommend that the committee post a bond to secure the proper performance of these duties or seek a restriction on accessing the patient’s funds. The committee may use professional services to assist them in some duties. However, professionals cannot be retained to do actions an ordinary person could perform. The cost of professional services is paid for by the patient’s estate.

Specific duties of the committee include:

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
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)
Paying patient’s maintenance, care and treatment costs out of the estate (PPA s 23)
Bringing an action, if necessary, on behalf of the patient as their litigation guardian (PPA s 22)
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)
Filing income tax returns and applying for pensions

b) Powers

The committee of the estate has all the rights, powers, and privileges over the patient’s estate as the patient would have if they had legal capacity (PPA s 15). This includes power to buy and sell property, open and close bank accounts, pay accounts etc. These powers include that would have been exercisable by the patient as a trustee, guardian of a person, holder of power of appointment or as the personal representative of a person (PPA s 17). For example, if the patient was acting as personal representative to their spouse prior to incapacity, the committee would now have the responsibility to make decisions for the spouse under the Representation Agreement. However, the court has discretion to place limits on any powers that the committee could otherwise perform (PPA s 16). In such a case, any powers that were limited by the court would fall to the PGT.

A committee of the person has the "custody of the person" of the patient. This means the committee is responsible for the person’s welfare and well-being.

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.

If a patient (as opposed to the committee) transfers their 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 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).

c) Remuneration

Under s 14 of the PPA, a person is allowed ‘reasonable’ compensation from the patient’s estate for services rendered as committee. However, a person does not have to claim compensation. The amount of compensation is fixed on the passing of the accounts to the PGT.

If the PGT acts as the committee of estate, its fees are charged in accordance with the Public Guardian and Trustee Fees Regulation. Fees may be reduced or waived where the PGT is satisfied that hardship or injustice would result from charging the full fee (PGT Fees Regulation s 3).

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 www.trustee.bc.ca.

4. Discharge of a Committee

a) Rescission of a Committee

On application by the Attorney General, the PGT, or any other person, a judge may rescind the appointment of a person (other than the PGT) appointed as committee (PPA s 6(2)). The rescission is subject to the committee complying with the requirement to pass accounts set out in s 13 of the PPA. This application may be filed along with an application for a new committee. This process cancels the committee’s authority to act for the patient.

b) Discharge of a Committee

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.

Once the committee is discharged, the committee has no further powers or duties with respect to the estate of the person who has ceased to be a patient (PPA s 13(4)(a)).

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

c) Release from Liability

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)). Disagreement between the person who has ceased to be a patient and the committee regarding management of the estate would mitigate against the discharge of the committee.