Difference between revisions of "Adult Guardianship (15:V)"

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{{REVIEWED LSLAP | date= September 1, 2020}}
{{REVIEWED LSLAP | date= September 1, 2020}}
{{LSLAP Manual TOC|expanded = guardianship}}
{{LSLAP Manual TOC|expanded = guardianship}}
In BC, adult guardianship (called ‘committeeship’) is currently governed by two acts: the ''Patients Property Act'', [''PPA''] and the ''Adult Guardianship Act'', [''AGA''].  The PPA allows a judge to appoint a committee (pronounced caw-mi-TEE, with emphasis on the end of the word).  Part 2.1 of the ''AGA'' contains a statutory process by which the Public Guardian and Trustee (PGT) becomes the ‘Statutory Property Guardian’.  All committees, whether an individual or the PGT, are legally authorized to make decisions for the patient.     
In BC, adult guardianship (called "committeeship") is currently governed by two acts: the ''Patients Property Act'', [''PPA''] and the ''Adult Guardianship Act'', [''AGA''].  The PPA allows a judge to appoint a committee (pronounced caw-mi-TEE, with emphasis on the end of the word).  Part 2.1 of the ''AGA'' contains a statutory process by which the Public Guardian and Trustee (PGT) becomes the "Statutory Property Guardian".  All committees, whether an individual or the PGT, are legally authorized to make decisions for the patient.     


The two different processes for creating a committeeship are quite different and are governed by different legislation.  It is important to 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.     
The two different processes for creating a committeeship are quite different and are governed by different legislation.  It is important to 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.     


An individual subject to committeeship, or the possibility of committeeship, may present as extremely upset, angry or confused.  To best assist this individual, it is important to understand the gravity of the situation for the individual, and why the individual may be feeling this way.  Keep in mind that the effect of a committeeship is that the adult loses their decision-making rights.  
An individual subject to committeeship, or the possibility of committeeship, may present as extremely upset, angry or confused.  To best assist this individual, it is important to understand the gravity of the situation for the individual, and why the individual may be feeling this way.  Keep in mind that the effect of a committeeship is that the adult loses their decision-making rights.  


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).  
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).  




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Section 1 of the PPA provides the following definitions:
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. <br>
• A "'''patient'''" is a person who is in incapable of managing their affairs or themselves, due to mental infirmity, disease, age etc. <br>


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


=== 1. Types of Committees ===
=== 1. Types of Committees ===
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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.
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''.
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:
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:
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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.   
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>.’ 
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).   
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).  
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 ====
==== i) Costs ====
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1.  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.  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.  


a) 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.  
a) 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.  
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.  
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a) The criteria are provided by sections 32(3)(a) to (e) of the ''AGA''. It is important to note that 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 32(3)(e)).  
a) The criteria are provided by sections 32(3)(a) to (e) of the ''AGA''. It is important to note that 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 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.  The BC Government has created a form called the ‘Health Authority Designate Notice of Intention to Issue a Certificate of Incapability’ for the purposes of this notification.   
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.  The BC Government has created a form called the "Health Authority Designate Notice of Intention to Issue a Certificate of Incapability" for the purposes of this notification.   


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.  
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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 of the certificate and provided with a copy.  
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 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.  
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 committee of the adult on the date that the certificate was signed by the health authority designate.  
b) The PGT becomes the committee of the adult on the date that the certificate was signed by the health authority designate.  
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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.  
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.  
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.   
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.   
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