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
If the subject of the application wishes to oppose it, they are well advised to have a lawyer for the application hearing.
c) Challenging Affidavits
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.
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.
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, 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).
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.
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
• 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:
1. 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.
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 more information, please visit the PGT website: https://www.trustee.bc.ca/Pages/default.aspx.
|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.|