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

A court may appoint a committee to manage a patient’s affairs (the estate), their person or both.  A court-ordered committeeship and its application is a Supreme Court procedure: provincial courts do not have jurisdiction in this regard.

A patient may have either a committee of the estate, a committee of the person, or both. Usually, but not always, a person who is incapable of managing their personal health care decisions is also incapable of handling financial and legal decisions.  Therefore, a committee of the person is frequently coupled with a committee of the estate.  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 Committeeship Process ===

An individual must be declared incapable of managing their affairs (either financial, personal, or both) before the court can appoint a committee.  

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.  

a) To direct the issue to be tried, following the Supreme Court Civil Rules

• Chamber Order to Appoint a Committee

If the subject of the application wishes to oppose it, they are well advised to have a lawyer for the application hearing.

The affidavits of the medical practitioners may be challenged.  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. The medical affidavits provided should not be older than 6 months, and should clearly lay out the diagnosis, clinical findings and prognosis of the patient.  

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.  

Once the patient has been declared incapable, the judge will appoint a committee.  This appointment is governed by the ''PPA''.  

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

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

• There is no valid enduring power of attorney<br>

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

For an adult to be certified as incapable under the ''AGA'' there are a number of steps.  

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) The proper procedures of an incapability assessment are 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.  

ii) Prior to conducting the assessment, the adult must be given notice of the purpose of the assessment and their rights

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.  

 

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

3.  Upon receiving Form 1, the health authority designate may issue a report of incapability if they are satisfied with the criteria. 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.  

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.

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.  

 

 

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.  

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

i) The PGT must inform the adult and, a spouse or near relative that the PGT has the 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).  

A statutory process committeeship can be ended in one of four ways:  

a) The BC government has created a form for this purpose called ‘Health Authority Designate Acceptance of Determination of Capability’

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 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.  

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.  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.  

An order of discharge or a discharge by the passing of accounts before the PGT is required before a security bond, if any, can be cancelled.  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)).  

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.