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Difference between revisions of "Adult Guardianship (15:V)"
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Adult Guardianship (15:V) (view source)
Revision as of 23:27, 5 October 2020
, 23:27, 5 October 2020→b) Resisting a Declaration of Incapability
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==== b) Resisting a Declaration of Incapability ==== | ==== 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). | |||
==== i) Costs ==== | |||
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<br> | |||
• The individual is incapable<br> | |||
• There is a need for someone to make financial decisions<br> | |||
• There is no suitable person available and willing to apply to be committee<br> | |||
• 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. | |||
{{REVIEWED LSLAP | date= June 21, 2019}} | {{REVIEWED LSLAP | date= June 21, 2019}} | ||
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