Adult Guardianship (15:V): Difference between revisions
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→a) Declaration of Patient Incapability
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An individual must be declared incapable of managing their affairs before a committee of estate can be appointed. Similarly, a person must be declared incapable of managing themselves before a committee of person is appointed. | An individual must be declared incapable of managing their affairs before a committee of estate can be appointed. Similarly, a person must be declared incapable of managing themselves before a committee of person is appointed. | ||
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. Supreme Court Civil Rules (Rules) R. 2-1(2)(e) states that, unless R. 17-1 applies, guardianship proceedings must be commenced by way of petition.<br> | :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. Supreme Court Civil Rules (Rules) R. 2-1(2)(e) states that, unless R. 17-1 applies, guardianship proceedings must be commenced by way of petition.<br> | ||
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.<br> | :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.<br> | ||
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''.<br> | :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''.<br> | ||
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: | ||
:(a) By converting the petition into an action. The test for determining whether a petition is to be tried was recently reviewed and amended in ''Cepuran v. Carlton'', 2022 BCCA 76. The court clarified that “a judge hearing a petition proceeding that raises triable issues is not required to refer the matter to trial. The judge has discretion to do so or to use hybrid procedures within the petition proceeding itself to assist in determining the issues, pursuant to R. 16-1(18) and R. 22-1(4)” (para 160). There are no determinative factors for referring a matter to trial; rather, the courts have discretion on a case-by-base basis to determine whether a proceeding is suitable for trial. | ::(a) By converting the petition into an action. The test for determining whether a petition is to be tried was recently reviewed and amended in ''Cepuran v. Carlton'', 2022 BCCA 76. The court clarified that “a judge hearing a petition proceeding that raises triable issues is not required to refer the matter to trial. The judge has discretion to do so or to use hybrid procedures within the petition proceeding itself to assist in determining the issues, pursuant to R. 16-1(18) and R. 22-1(4)” (para 160). There are no determinative factors for referring a matter to trial; rather, the courts have discretion on a case-by-base basis to determine whether a proceeding is suitable for trial. | ||
:(b) By order, to require the person to undergo an additional examination with either: | ::(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 | ::::(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 | ::::(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 | ||
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. | :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 ''[https://www.canlii.org/en/bc/bcsc/doc/2000/2000bcsc24/2000bcsc24.html T.H.N et al v Q.V.L.]'', 2000 BCSC 24. | * 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 ''[https://www.canlii.org/en/bc/bcsc/doc/2000/2000bcsc24/2000bcsc24.html T.H.N et al v Q.V.L.]'', 2000 BCSC 24. | ||