Committeeship (Script 426)

From Clicklaw Wikibooks

A committee is a last resort option when someone becomes mentally incapable. A committee can make decisions for someone else who can’t make decisions for themselves. Learn how committeeship works.

Understand the legal framework

A committee is usually appointed by the court

Once an adult becomes mentally incapable, they usually aren’t in a position to make important decisions for themselves. A committee (pronounced caw-mi-tay, or caw-mi-tee, with emphasis on the end of the word) is a person or body usually appointed by the BC Supreme Court to make personal, medical, legal, or financial decisions for someone in BC who is mentally incapable. The court can appoint more than one person as committee.

Appointing a committee is a serious legal step because it takes away a person's right to decide things for themselves. It is intended to be used as a last resort.

Our information about powers of attorney and representation agreements (no. 180) explains how you plan in advance, and avoid committeeship.

A committee can only be appointed for someone who is mentally incapable

Anyone who suffers from a mental illness or handicap, a head injury, a degenerative disease, or some other kind of disability may not be mentally capable to make decisions about their personal, medical, financial, or legal affairs. In the extreme case, a person may be unconscious and completely unable to communicate or decide anything. Someone who is mentally incapable may lose track of bank accounts, forget to pay bills, be unable to decide where and how to live, or be taken advantage of and abused. In these cases, appointing a committee is one possible solution.

There are two types of committee

A committee of person can make only personal and medical decisions, including decisions about where the person will live or whether to accept health care treatment. Usually a family member or close friend will fill this role. Only the court can appoint a committee of person.

A committee of estate can make only financial and legal decisions. A family member or close friend, a trust company, or the Public Guardian and Trustee of BC can fill this role. A committee of estate can be appointed by the court. The Public Guardian and Trustee can also be appointed as committee of estate by a certificate of incapability under the Adult Guardianship Act. No one else can be appointed this way.

Often, people lose capacity to manage their financial and legal affairs before they lose capacity to manage themselves, so a committee of estate is more common that a committee of person. For example, a person may know how to cook and bathe, but not how to handle banking and legal affairs.

Committees appointed by the court are sometimes called private committees

Committees (other than the Public Guardian and Trustee) are sometimes called private committees. The Public Guardian and Trustee may apply to court to be the committee if no suitable person is willing to act.

You can choose your own committee while you’re still capable

If you're mentally capable, you can name (nominate) someone you want to be your committee if you ever need one. Then, if you later become mentally incapable, the court will appoint that person unless someone can show there's a good reason not to. It is best to see a lawyer if you want to do this because there are specific legal requirements.

The role of the Public Guardian and Trustee

The Public Guardian and Trustee is an entity independent of the BC government, with offices in Vancouver, Victoria and Kelowna. One of its duties is to be committee when no other suitable person is willing to be committee. It charges fees, set by regulation, for this service.

If you think a person needs a committee and you can’t do the job, or if there’s a family conflict, you should contact the Public Guardian and Trustee. When the Public Guardian and Trustee becomes committee, the court isn’t involved. This public body can automatically be appointed after a certificate of incapability is issued. This is a certificate issued by a provincial health authority after a medical and functional assessment finds that an adult is mentally incapable.

The Public Guardian and Trustee also reviews all court applications to appoint a committee and makes recommendations to the court about the applications. The recommendations include whether a committee should post a security bond or have only limited access to the person’s assets.

The Public Guardian and Trustee also reviews all committee accounts, decides on payments to committees, and receives and investigates reports of abuse and mismanagement by committees.

The Public Guardian and Trustee has the necessary forms, samples of accounts committees must keep, and a handbook for private committees. For more information, or to ask them to send you these documents, call 604-660-4444 in the Lower Mainland. Elsewhere in BC, call Service BC at 1-800-663-7867 and ask for the Public Guardian and Trustee. You can also email the office at mail@trustee.bc.ca.

What a committee should know

Applying to become a committee

You might want to be a committee if one of your family members or close friends has lost the mental capacity to make important decisions and you want to help.

To become a committee, you must apply to the BC Supreme Court to be appointed by an order under the Patients Property Act. But first, you must confirm that the person is mentally incapable. The person's doctor may be able to help you do that. A committee can be appointed only if two doctors say the person is mentally incapable.

A lawyer can help you with the required court documents. If you're applying to be committee of estate, the doctors’ statements must say the person is not able to manage their financial and legal affairs and explain why. If you're applying to be committee of person, the doctors' statements must say the person cannot manage their personal and medical decisions and explain why.

The person must be notified of your court application unless the doctors say it would be harmful to them. Sometimes the person will oppose the application. You should also notify the person’s family members, and if you can, get their consent to your application.

Give the lawyer as much information as you can about the medical condition and financial affairs of the person. Because of privacy laws, some financial institutions may not want to give you information.

When the paperwork is ready, a lawyer can help you apply to court for an order to appoint you as committee. A lawyer can also advise you on how to act as committee.

Depending on the value of a person’s assets and income, and other circumstances, the court may order you, as committee, to post a security bond. The security bond and other expenses a committee incurs acting for the person usually comes out of the person’s (and not the committee’s) pocket.

If the person becomes capable again

They or you can apply to court to end your role as committee. You may have to get court approval of your final accounts for the person’s estate — unless the newly capable person agrees you do not have to.

If the person dies

Their committee continues to act for them until an executor or administrator is appointed for the deceased person.

The Public Guardian and Trustee reviews all court applications to be appointed committee and monitors committees.

A committee has broad powers and important duties

Generally, a committee has the same powers to deal with a person's estate (that is, their money and property) and affairs as the person has when they are capable. But there are some things a committee can't do for a person: for example, a committee can’t change a person’s will, vote in a general election, or consent to marriage.

A committee must act in the person’s best interests

A committee has a fiduciary responsibility. A committee must put the person’s interest ahead of their own. They cannot mix the person’s assets with their own. A committee must avoid conflict-of-interest situations. These are important duties and it can be hard to fulfil them.

The court can limit a committee’s powers

A court might say a committee can't sell any of the person's real estate without first getting the court’s permission or the consent of the Public Guardian and Trustee. Or the court may restrict access to an investment so that the committee can access only the income from the investment, not the investment itself.

A committee has certain duties when investing

A committee must follow the Trustee Act when they invest for a person. If they invest in things the Trustee Act does not allow, they may have to pay the estate for any losses. Unless an estate is small, a committee should get professional investment advice.

Generally, a committee can’t get benefit from their appointment

Normally, a committee can't use the person's property or get any benefit from it. There are exceptions to this — for example, if a person’s committee is their spouse. An incapable person must still support their spouse and dependent children. So a spouse who is committee can use some of the person’s assets and income for their own living expenses. Before a committee uses their spouse’s assets or income to support a family member or themselves, they should check with the Public Guardian and Trustee or a lawyer.

Responsibilities of a committee

A committee of estate can be responsible for:

  • handling the person's property
  • doing the person's banking (this could include borrowing money for the person, though there may be restrictions on using property as security to borrow and court permission may be required)
  • paying the person's expenses
  • budgeting for the person's family
  • selling the person's property
  • entering into contracts for the person and running the person's business
  • dealing with any lawsuits involving the person
  • filing the person's income tax returns
  • applying for pensions and other benefits for the person

Committees must keep detailed records of all the assets, liabilities, and money coming in and going out of the person's estate. They must give periodic reports (called accounts) to the Public Guardian and Trustee.

The Public Guardian and Trustee:

  • will review and decide whether to pass (or accept) the accounts
  • decide how often a committee must file the accounts — from every six months to every five years
  • receives and investigates reports of mismanagement by committees

A committee of person is responsible for making medical decisions for the person and deciding where and how the person should live.

Committees can hire professional help for tasks that require expert advice or work, but not for things that an ordinary person could do. Any professional fees paid out of the person’s money should be reasonable and necessary.

A committee is usually paid

A committee is paid a reasonable fee for their service. This is paid from the money and property owned by the mentally incapable person. The size of the fee depends on the size of the estate and how much work a committee must do to manage it. The Public Guardian and Trustee decides the fee each time it approves a committee’s accounts.

Committees should keep written records of the work they do and the time they spend on the estate to show what they did, why, and how. Careful record-keeping is essential for committees.

Common questions

How is a committee different from a power of attorney?

Preparing a power of attorney is easier than a committee order. The catch is that a person must sign a power of attorney while still mentally capable. So it doesn't work for a person who is already incapable.

As well, a power of attorney ends when the person who gave it becomes mentally incapable, unless it has an enduring clause. An enduring clause says that the power of attorney continues if the person becomes mentally incapable.

Finally, a power of attorney deals only with legal and financial affairs, not personal or medical issues.

Are there other laws that promote adults’ rights to care for themselves?

BC has the following four laws to promote adults’ rights to care for themselves. The laws aim to help people who can't make their own decisions or who could be taken advantage of by dishonest people:

These laws provide other ways, besides a committee order to help a person who is mentally incapable. Our information about powers of attorney and representation agreements (no. 180) explains how you can plan while you are still mentally capable, and avoid committeeship.

What if the adult receives a pension from the federal government?

If a person who becomes mentally incapable has no assets or property but receives a pension from the Canadian government (such as from the Canada Pension Plan or Old Age Security), then a pension trustee is an option. Service Canada has more on this. Call 1-800-277-9914.

Get help

With more information

The Public Guardian and Trustee of British Columbia provides information and forms relating to the committee process.

Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
Toll-free: 1-800-663-7867
Web: trustee.bc.ca

The Nidus Personal Planning Resource Centre & Registry has information about committeeship and personal planning alternatives.

Web: nidus.ca


[updated June 2018]

The above was last reviewed for legal accuracy by Services to Adults, Public Guardian and Trustee.



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