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Adult Guardianship (15:V) (view source)
Revision as of 23:40, 5 October 2020
, 23:40, 5 October 2020→A. Patients Property Act: Court-Ordered Committeeship
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For more information, please visit the PGT website: https://www.trustee.bc.ca/Pages/default.aspx. | For more information, please visit the PGT website: https://www.trustee.bc.ca/Pages/default.aspx. | ||
== B. Adult Guardianship Act: Legislative Process Committeeship ('Statutory Property Guardian') == | |||
The other process by which a committeeship can be created is through the legislative process outlined by the ''AGA''. A committeeship created in this manner is referred to in the legislation as a ‘Statutory Property Guardian’. The main difference between a court order committeeship and a legislative process committeeship, is that under the latter, only the PGT can become committee and solely over the adult’s financial affairs. However, once the Public Guardian and Trustee becomes a Statutory Property Guardian, the ''PPA'' states that Statutory Property Guardian is a committee under the ''PPA''. In short, the process for the PGT to become a Statutory Property Guardian is through the ''AGA'' but then their duties are defined by the ''PPA''. | |||
=== 1. The Legislative Process Committeeship Process === | |||
==== a) Assessment of Incapability ==== | |||
For an adult to be certified as incapable under the ''AGA'' there are a number of steps. | |||
1. Any individual can notify the PGT and the PGT can conduct an investigation to determine whether intervention is warranted. If it is found to be so, the PGT can request an assessment of incapability by a qualified health care provider. | |||
a) A ‘qualified’ health care provider is defined in s 3(2) of the ''Statutory Property Guardianship Regulations'' [''SPGR'']. It includes a health care provider as defined in the ''Health Professions Act'' and the ''Social Workers Act'', as well as registrants of the British Columbia College of Social Workers; BC College of Nursing Professionals; College of Occupational Therapists of British Columbia; and registrants of the College of Psychologists of British Columbia. | |||
2. The qualified health care provider then assesses the adult according to the prescribed procedures and if satisfied, prepares a Report of Assessment of Incapability along with a Details of Assessment for review by a health authority designate. | |||
a) The proper procedures of an incapability assessment are outlined in s 5 through 10 of the ''SPGR''. These procedures are also required for any subsequent reassessment of the adult’s incapability such as a review requested by the adult or an ordered review. | |||
i) The assessment is composed of two parts: a medical component and a functional component. | |||
ii) Prior to conducting the assessment, the adult must be given notice of the purpose of the assessment and their rights | |||
iii) Section 10 outlines that an assessment report must be completed by filling out a Form 1 and that details of the assessment must be attached. The qualified health care provider must also inform the adult of the result and the determination and offer the adult a copy of Form 1 and the details attached. | |||
iv) The qualified health care provider does not need to inform the adult or offer a copy of the report if they have reason to believe that doing so may result in serious physical or mental harm to the adult or significant damage or loss to the adult's property. | |||
b) A health authority designate is defined by s 4 of the ''SPGR''. | |||
3. Upon receiving Form 1, the health authority designate may issue a report of incapability if they are satisfied with the criteria. The designate must also have consulted with the PGT and notified the adult and, if possible, any spouse or near relative of the adult, of the intention to issue a certificate. | |||
a) The criteria are provided by sections 32(3)(a) to (e) of the ''AGA''. It is important to note that the certificate cannot be signed if the adult has granted power over all of the adult's financial affairs to an attorney under an enduring power of attorney unless that attorney is not complying with the attorney's duties under the ''Power of Attorney Act'' or the enduring power of attorney, as applicable (''AGA'' s 32(3)(e)). | |||
b) The notice required to the adult and a near relative is outlined in s 11 of the ''SPGR''. Section 11(3) states that the adult or near relative be given at least 10 days to respond. The BC Government has created a form called the ‘Health Authority Designate Notice of Intention to Issue a Certificate of Incapability’ for the purposes of this notification. | |||
i) Notification does not need to be provided to the adult or near relative if the designate has reason to believe that doing so may result in serious physical or mental harm to the adult or significant damage or loss to the adult's property. | |||
c) The certificate of incapability is Form 2 (''SPGR'' s 12). | |||
4. Once the Certificate of Incapability is signed by the health authority designate, the certificate must be forwarded to the PGT. The adult and a spouse or near relative must be informed of the certificate and provided with a copy. | |||
a) The BC Government has created a form called ‘Health Authority Designate Concluding Letter’ for the purpose of providing notice to the adult. | |||
b) The PGT becomes the committee of the adult on the date that the certificate was signed by the health authority designate. | |||
i) The PGT must inform the adult and, a spouse or near relative that the PGT has the power to manage the adult’s financial affairs and that the adult has the right to request a second assessment and potentially a court review (''AGA'' s 33). | |||
ii) The adult or someone on behalf of the adult may request a second assessment within 40 days of being notified (''AGA'' s 60(2)) | |||
See ''A Guide to the Certificate of Incapability Process Under the Adult Guardianship Act'' available at http://www.trustee.bc.ca/reports-and-publications/Documents/A%20Guide%20to%20the%20Certificate%20of%20Incapability%20Process%20under%20the%20Adult%20Guardianship%20Act.pdf | |||
==== b) Reassessment of Incapability ==== | |||
Once a Certificate of Incapability has been issued and the time for a second assessment has passed, or the second assessment confirms the assessment of incapability, s 34 of the ''AGA'' outlines three different ways that a reassessment can be made of an adult’s incapability. | |||
1. If the PGT informs the body that designated the health authority designate who issued the certificate of incapability that a reassessment should occur. | |||
2. If the adult requests a reassessment and has not been reassessed within the preceding 12 months | |||
3. The court orders a reassessment under s 35(3) of the ''AGA''. | |||
==== c) Court Review of Assessment of Incapability ==== | |||
After a second reassessment has occurred and the adult is still declared incapable, the adult can apply for a court review. | |||
The parties to the court review are: | |||
• The adult <br> | |||
• The body that designated the health authority who issued the certificate of incapability<br> | |||
• If ordered by the court, a person appointed under the ''Patients Property Act'', as committee for the adult following a declaration under that Act that the adult is incapable of managing themselves | |||
The court may order another reassessment of the adult’s incapability. | |||
During this review, the court may confirm the determination of incapability, or reject the determination of incapability and order that the statutory property guardianship is ended. | |||
=== 2. Ending Committeeship (Statutory Property Guardian Authority Under the ''AGA'') === | |||
A statutory process committeeship can be ended in one of four ways: | |||
1. The PGT is satisfied that the adult no longer needs a Statutory Property Guardian. | |||
a) Notice must be provided to the adult that they no longer have a Statutory Property Guardian. | |||
2. After a second assessment, the health authority designate accepts that the adult is no longer incapable. | |||
a) The BC government has created a form for this purpose called ‘Health Authority Designate Acceptance of Determination of Capability’ | |||
b) Notice must be provided to the PGT | |||
3. A court order after a review of an incapability assessment under s 35 of the ''AGA'' | |||
4. The court appoints a committee under the ''PPA'' | |||
=== 3. Serving as a Committee === | |||
==== a) Duties ==== | |||
The committee’s general duty is to exercise their powers for the benefit of the patient, having regard to the nature and value of the patient’s property, and the patient’s circumstances and needs and those of their family (''PPA'' s 18). '''The committee is not allowed to use or take any benefit from their position'''. When the patient has assets, the PGT will often recommend that the committee post a bond to secure the proper performance of these duties or seek a restriction on accessing the patient’s funds. The committee may use professional services to assist them in some duties. However, professionals cannot be retained to do actions an ordinary person could perform. The cost of professional services is paid for by the patient’s estate. | |||
Specific duties of the committee include: | |||
• Passing accounts before the PGT, at the times directed by the PGT (''PPA'' s 10(d)). This includes, if the PGT requires it, a true inventory of the whole estate of the patient. The patient’s assets are not the committee’s, and thus the committee must account to the PGT for all transactions. Provisions regulating this duty are contained in s 10 of the ''PPA'' and in Rule 21-5 of the rules governing the Act in the ''Supreme Court Civil Rules'', BC Reg 168/2009<br> | |||
• Upon the patient’s death, the committee is no longer required to pass accounts before the PGT, but must provide the committee’s accounts to the executor or administrator of the patient’s estate, or, if the committee and the executor or administrator of the patient’s estate are the same person, to the beneficiaries of the patient’s estate (''PPA'' s 24)<br> | |||
• Paying patient’s maintenance, care and treatment costs out of the estate (''PPA'' s 23)<br> | |||
• Bringing an action, if necessary, on behalf of the patient as their litigation guardian (''PPA'' s 22)<br> | |||
• Exercising the rights, powers, duties, and privileges of the patient after the patient’s death, as if they had not died, and serving as executor or administrator until letters probate of the will or letters of administration to the estate of the patient are granted and notice in writing is served upon the committee (''PPA'' s 24)<br> | |||
• Filing income tax returns and applying for pensions <br> | |||
• If a person is appointed as committee for a person under disability, that person must be the litigation guardian of the patient in any proceeding unless the court otherwise orders as per Rule 20-2 of the ''Supreme Court Civil Rules'' | |||
==== b) Powers ==== | |||
The committee of the estate has all the rights, powers, and privileges over the patient’s estate as the patient would have if they had legal capacity (''PPA'' s 15). This includes power to buy and sell property, open and close bank accounts, pay accounts etc. These powers include that would have been exercisable by the patient as a trustee, guardian of a person, holder of power of appointment or as the personal representative of a person (''PPA'' s 17). For example, if the patient was acting as personal representative to their spouse prior to incapacity, the committee would now have the responsibility to make decisions for the spouse under the Representation Agreement. However, the court has discretion to place limits on any powers that the committee could otherwise perform (''PPA'' s 16). In such a case, any powers that were limited by the court would fall to the PGT. | |||
A committee of the person has the ‘custody of the person’ of the patient. This means the committee is responsible for the person’s welfare and well-being. | |||
For investing money, a committee is a trustee within the meaning of the ''Trustee Act'' (''PPA'', s 15(2)), which means a committee must comply with the provisions of this Act when it comes to investing the patient’s money. For example, the Committee must meet a certain standard of care in making investment decisions and freedom to delegate investment decisions is limited. | |||
If a patient (as opposed to the committee) transfers their property while incapable, for instance, by selling land or giving a gift, the transfer will be voidable (i.e. deemed to never have occurred at the option of the committee), unless full and valuable consideration was paid for the property, or a reasonable person would not have known that the adult was incapable (''AGA'' s 60(2)). | |||
'''NOTE:''' An Enduring Power of Attorney or representation agreement is ''terminated'' when a person becomes a ‘patient’ by being declared incapable of managing their affairs by court order (''PPA'' s 19). Therefore, the authority of a court order committee will never conflict with that conferred by a power of attorney. Where a committee is appointed under the ''AGA'' statutory property guardianship rules, any EPOA or s 7 RA for routine financial affairs is suspended (''PPA'' s 19.1). | |||
==== c) Remuneration ==== | |||
Under s 14 of the ''PPA'', a person is allowed ‘reasonable’ compensation from the patient’s estate for services rendered as committee. However, a person does not have to claim compensation. The amount of compensation is fixed on the passing of the accounts to the PGT. | |||
If the PGT acts as the committee of estate, its fees are charged in accordance with the ''Public Guardian and Trustee Fees Regulation''. Fees may be reduced or waived where the PGT is satisfied that hardship or injustice would result from charging the full fee (''PGT Fees Regulation'' s 3). | |||
A committee has a first lien upon the estate of the patient or the person who has ceased to be a patient (''PPA'' s 14(4)). | |||
'''NOTE: ''' The Public Guardian and Trustee has helpful information for private committees at www.trustee.bc.ca. | |||
=== 4. Discharge of a Committee === | |||
==== a) Rescission of a Committee ==== | |||
On application by the Attorney General, the PGT, or any other person, a judge may rescind the appointment of a person (other than the PGT) appointed as committee (''PPA'' s 6(2)). The rescission is subject to the committee complying with the requirement to pass accounts set out in s 13 of the ''PPA''. This application may be filed along with an application for a new committee. This process cancels the committee’s authority to act for the patient. | |||
==== b) Discharge of a Committee ==== | |||
If a person regains their mental capability and ceases to be a ‘patient,’ that person, or the committee (other than the PGT), may apply to the court for the discharge of the committee (''PPA'' s 12). Notice in writing of this application must be provided to the PGT 10 days prior to the application. The judge who hears the application may, and shall if asked by the PGT, order the committee to pass accounts. There will almost always be outstanding accounts. The fees payable will be rescinded as of the date of the order and discharged on the passing of accounts. | |||
An order of discharge or a discharge by the passing of accounts before the PGT is required before a security bond, if any, can be cancelled. Once the committee is discharged, the committee has no further powers or duties with respect to the estate of the person who has ceased to be a patient (''PPA'' s 13(4)(a)). | |||
'''NOTE:''' At this time there is no section under the ''PPA'' governing the discharge of the PGT as committee. | |||
==== c) Release from Liability ==== | |||
A discharged committee, whether it be a private committee or the PGT, is released from liability concerning the management of the estate except in respect of undisclosed acts, neglects, defaults, or accounts, or where the committee was dishonest or unlawful in their conduct (''PPA'' s 13(4)(b)). A difference of opinion between the person and committee as to how the estate should have been handled is not by itself a reason to support a committee’s discharge. | |||
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