Adult Guardianship (15:V)
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.
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).
A. Patients Property Act: Court-Ordered Committeeship
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.
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. 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
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 (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.
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) To direct the issue to be tried, following the Supreme Court Civil Rules
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 This additional examination can be requested by the patient and cannot be refused by the court unless the court believes the patient is not mentally competent to form and express the request (PPA s 5)
NOTE: It is very rare for the issue to be tried, and the court will most commonly opt to order another assessment if the medical affidavit evidence is disputed.
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 Committee
While it is not required to include consent of the next of kin, it is recommended. See below.
b) Resisting a Declaration of Incapability
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 21, 2019.|
|© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.|