Difference between pages "Adult Guardianship (15:V)" and "Selling Your Home"

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{{LSLAP Manual TOC|expanded = guardianship}}
{{REVIEWEDPLS | reviewer = [https://www.ganapathico.com/our-team/nathan-ganapathi/ Nathan Ganapathi] and [https://www.ganapathico.com/our-team/anna-kurt/ Anna Kurt], Ganapathi Law Group|date= October 2017}} {{Dial-A-Law TOC|expanded = home}}
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.  
Selling a home is the biggest financial decision most people make. Learn what to consider before putting up the “For Sale” sign, and the steps involved in selling your home.


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.   
==Key things to consider==


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.  
===You can go it alone or hire a real estate agent===
You can sell your own home yourself. Many do. The costs of hiring a real estate agent can be substantial (as the seller typically absorbs the cost on the sale of a home).


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).
But there are advantages to working with a '''real estate agent'''. Agents are keenly aware of market trends and can help you get the best possible price for your home. They are connected to networks of potential buyers you would have a hard time reaching on your own. And they can help you navigate a complex process, advising on questions such as:


* What facts must you disclose?
* What paperwork is required?
* What about the existing mortgage?
* Who ensures you will get your money?


== A. Patients Property Act: Court-Ordered Committeeship ==
{| class="wikitable"
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.
|align="left"|'''Tip'''
 
[https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-42/latest/sbc-2004-c-42.html Under the law in BC], real estate agents must be licensed. [https://www.recbc.ca/about/licensee-search.html You can use the licensee search from the Real Estate Council of BC] to see if an agent is currently licensed.
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. <br>
===In signing a listing agreement===
 
If you hire a real estate agent, you will be asked to sign a '''listing agreement'''. This is a contract between you and your real estate agent, setting out the terms for selling your home.
• 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<br>
Most real estate agents use a '''multiple listing agreement'''. This means your agent can advertise and show your home to agents from other real estate agencies (and not just their own). In this way, many potential buyers can learn about your home.


• Conducting banking<br>
Most listing agreements are standardized forms from the local real estate board. The agent may not have a lot of room to negotiate terms. But there are a few terms to pay particular attention to:


• Paying expenses<br>
* '''Who the agent is representing'''. A real estate agent can be hired as an agent for the seller, as an agent for the buyer, or (as we explain shortly, in very limited circumstances) as an agent for both the seller and the buyer.
* '''The length of the agreement'''. Many agents prefer that the listing agreement continue for three months, but you can choose to list your home for a shorter period. If your home doesn’t sell within that time, you can either extend the term of the listing agreement or change agents.
* '''The agent’s pay'''. The listing agreement sets the amount of the agent’s pay, or commission. In BC, commissions can be a flat fee or a percentage of the sale price of the home. We explain these two options shortly.


• Selling real property
====The real estate agent’s duties depend on who they are acting for====
All real estate agents must act honestly and with reasonable care and skill in performing their work. They also have other duties that depend on who they are acting for.


==== b) Committee of the Person ====
A real estate agent can be hired as an agent for the seller, as an agent for the buyer, or (in very limited circumstances) as an agent for both the seller '''and''' the buyer. Under the law, an agent has to explain how these options change their duties to you.
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.
When an agent is acting only for you, as your '''sole agent''' in selling your home, the agent has these duties:


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.
* a duty of undivided loyalty to you
* a duty to keep your confidences
* a duty to obey all your lawful instructions
* a duty to account for all the money and property you place in their hands while acting for you


=== 2. The Court Ordered Committeeship Process ===
[https://www.recbc.ca/licensee/rules.html Under the rules in BC], real estate agents in the province can not practice '''dual agency'''. This means they can not act for both a buyer and a seller in the same transaction, or for two buyers who have conflicting interests. The sole exception to this rule is for property in a remote location that is under-served by real estate agents and it is “impracticable” for the parties to be represented by separate real estate agents.
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<br>
Before practicing dual agency under this exception, a real estate agent must make a disclosure to both parties to the transaction. The disclosure must inform them of the duties and responsibilities of the agent to the clients, and the risks associated with a dual agency relationship.


• The court appoints one or more individuals as Committee of the estate and/or the person
====The agent typically gets paid after the sale of your home====
In BC, a real estate agent’s pay (or '''commission''') can be a flat fee or a percentage of the sale price of the home.


==== a) Declaration of Patient Incapability ====
A common approach is for an agent to charge 7% on the first $100,000 of the sale price, plus 2.5% on the rest. For example, if your home sells for $400,000, the commission under this approach would be $14,500:
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.  
'''Portion of price Commission'''<br>
7% of $100,000 = $7,000<br>
2.5% of $300,000 = $7,500<br>
''Total commission = $14,500<br>''
As the seller, you pay this commission to your agent. Your agent then shares it with the buyer’s agent. The commission is typically deducted from the sale proceeds of the home at the time the sale is completed.


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.
===If you have a mortgage on your home===
If you have a '''mortgage''' on your home, you will need to deal with the mortgage in some way in selling your home.


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''.
One option to explore is whether a buyer can '''assume''' (meaning take over) the mortgage. If a buyer can assume the mortgage, this can save you money, avoiding the costs of paying out the mortgage on the sale.


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:
Another option is paying off the mortgage when you sell your home. Many mortgages have restrictions on paying out the mortgage early. Some have a '''prepayment penalty''', such as three months worth of mortgage payments. Sometimes a lender will waive the prepayment penalty if the buyer takes out a new mortgage with them, or if you take out a new mortgage with them when you buy a new home.


a) To direct the issue to be tried, following the Supreme Court Civil Rules
To find out if your mortgage can be assumed or includes a prepayment penalty, check your mortgage contract. Or check with your lender.


b) By order, to require the person to undergo an additional examination with either:
For more on mortgages, [[Mortgages and Financing a Home Purchase|see our information on mortgages and financing a home purchase]].


i) One or more medical practitioners other than those whose affidavits were before the court, or
===If you get an offer to purchase===


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
{{PLSStorybox
 
| image = [[File:Jasmin.jpeg|link=]]
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)
| text = “After our kids left for university, we decided to downsize. We got four offers on our home at the first open house. I had no idea there was so much to consider. Between the subject to clauses, the offer prices, the closing dates — it was dizzying. And that was before we even figured out the financing part of it."<br>
- Jasmin, Surrey''  
}}


'''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.
If someone offers to buy your home, they will present an '''offer to purchase'''. This is a contract setting out the terms of the sale of your home. It is usually written on a standard form provided by the local real estate board. Once you and the buyer sign the offer, it is a binding contract of purchase and sale.


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.  
Your real estate agent is under an obligation to bring all written offers to you for your consideration. If several offers are brought to you at once, you are under no obligation to accept any one offer over another.


• 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.  
If there is anything you don’t like in an offer (including the price or the completion date), you can write in your own terms instead. This becomes your '''counteroffer'''. This is considered to be a new offer altogether. It becomes a binding contract of purchase and sale if the buyer accepts. If the buyer doesn’t accept your counteroffer, there is no agreement.


In summary, the court application must include:
===If the offer includes a subject to clause===
'''Subject to clauses''' are conditions that must be met before a sale proceeds. Common subject to clauses a buyer may include in their offer are:


• Petition (''Supreme Court Civil Rules'', BC Reg 168/2009 2-1(2))<br>
* subject to the buyer getting financing (for example, a mortgage)
* subject to the buyer getting a property inspection
* subject to the buyer selling their home


• Affidavit of Service (unless notice requirement was waived)<br>
If you get an offer with a subject to clause, make sure the buyer has only a short time to remove the condition. Your home may be off the market for the time it takes the buyer to remove the condition, and you will likely want to keep that period short.


• Affidavit of Kindred and Fortune setting out next of kin and financial circumstances of patient (''PPA Rules'', Rule 2(3))<br>
As well, the subject to clause should be specific. Don’t accept a general clause, such as “subject to buyer obtaining satisfactory financing.” If the buyer changes their mind, all the buyer has to do to get out of the deal is to say they couldn’t get satisfactory financing. Instead, put details in the clause about the financing — the interest rate and principal amount the buyer is seeking to finance — as well as a deadline for when the buyer must remove the clause. A lawyer who practises real estate law can be helpful in this process.


• Affidavit from two physicians (''PPA'', s 3(1))<br>
===You must disclose any defects to a buyer===
As a seller, you must disclose any '''material latent defects''' about your home to a buyer. A material latent defect means a defect that cannot be discerned through a reasonable inspection of the property. This includes a defect that makes the home:


• Notice of Application to Appoint a Committee (''PPA Rules'', Rule 2(2))<br>
* dangerous or potentially dangerous to the occupants,
* unfit for habitation, or
* unfit for the purpose for which the buyer is acquiring it, if the buyer has made this purpose known to the seller.


• Chamber Order to Appoint a Committee
Common examples of material latent defects include:


While it is not required to include consent of the next of kin, it is recommended. See below.
* the basement leaks when it rains
* structural damage to the property
* underground storage tanks are located on the property
* problems with the potability or quantity of drinking water
* damage caused by the illegal use of the property (for example, a marijuana grow operation)


==== b) Resisting a Declaration of Incapability ====
Failure to disclose material latent defects can result in future problems, including legal issues if the new owner discovers problems that you were aware of and did not disclose.
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 ====
===What things in the home are included in the sale===
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.  
When someone buys your home, all the '''fixtures''' go along with it, unless you and the buyer agree otherwise. Defining a fixture can be difficult: generally, a fixture is anything that’s attached to the home to the point where removing it would damage the home or require repair. The bathroom sink is an obvious example. As objects like chandeliers are sometimes items that homeowners are interested in taking with them after the sale of their home, it is important these fixtures are explicitly excluded from the contract of purchase and sale. Better yet, before you put the home up for sale, replace the chandelier with a simple, inexpensive replacement.


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.
{| class="wikitable"
 
|align="left"|'''Tip'''
==== d) Subsequent Applications ====
The appliances — such as your washer, dryer, fridge and stove — aren’t fixtures. They aren’t included in the sale unless you and the buyer agree otherwise. You may be able to use them as bargaining tools if the buyer wants them.
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.   
===On the completion date===
The contract of purchase and sale will state the '''completion date''' for the sale. On that day, legal ownership will transfer from you to the new owner in exchange for the purchase price of the home.
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.
 
== 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.  
It is the normal practice for the buyer’s lawyer or notary public to prepare the documents needed to transfer the legal ownership. You, as the seller, may want to engage a lawyer or notary to act for you. Among other things, they can protect your interests by:


b) A health authority designate is defined by s 4 of the ''SPGR''.
* checking the documents prepared by the buyer’s lawyer and explaining them to you
* ensuring your old mortgage has been properly discharged, if this is required
* ensuring you have no further obligation regarding your old mortgage if it is being assumed by the buyer
* confirming all payments for which you are responsible have been made
* arranging for you to sign the transfer documents


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.
==The process to sell your home==


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)).  
===Step 1. Get a valuation of your home===
You will want to know what your home is worth and what it should sell for in today’s market. One way to find out is to get a professional '''appraisal'''. This will give you a value for your home based on what comparable homes in your area have sold for and what it would cost to replace your home. The charge will vary with the appraiser, but is often between $200 and $750.


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.
Another way to learn the value of your home is to contact some '''real estate agents''' who work in your area. They will look at your home and, for no charge, tell you what price they would list the home for and what they’d expect it to sell for. Keep in mind that realtors are not professional appraisers. You may decide to pay for the greater certainty of a professional appraiser’s opinion.


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.
===Step 2. Find out the details of your mortgage===
If you have a mortgage on your home, find out:


c) The certificate of incapability is Form 2 (''SPGR'' s 12).
* how much is owing on the mortgage
* whether the buyer can assume the mortgage (as we explained above)
* if the mortgage includes a prepayment penalty (also explained above)


To find out these details, check your mortgage agreement and statements. Or check with your lender. If the mortgage can be assumed, ask your lender if the buyer will need a certain income to qualify.


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.  
===Step 3. Decide if you are hiring a real estate agent===
Decide if you are going to sell your home yourself or hire a real estate agent.


a) The BC Government has created a form called ‘Health Authority Designate Concluding Letter’ for the purpose of providing notice to the adult.  
If you decide to use a realtor, pick someone you trust and are comfortable with. Word-of-mouth is a good way to find a realtor you can work with. Ask friends, neighbours and work colleagues who have recently bought or sold a home who they worked with and how that experience went. The internet is a good way to locate realtors who specialize in properties and regions that may be of interest to you.


b) The PGT becomes the committee of the adult on the date that the certificate was signed by the health authority designate.
{| class="wikitable"
 
|align="left"|'''Tip'''
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).
[http://online.recbc.ca/licensee-search You can use the licensee search from the Real Estate Council of BC] to see if an agent is currently licensed.
 
|}
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
===Step 4. Sign the listing agreement===
 
If you hire a real estate agent, you will be asked to sign a '''listing agreement'''. We explain what to watch for above, under “What you should know.”
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.  
The agent will provide you with a copy of the agreement. Keep it for future reference.


=== 2. Ending Committeeship (Statutory Property Guardian Authority Under the ''AGA'') ===
===Step 5. Consider any offer to purchase===
A statutory process committeeship can be ended in one of four ways:
If you get an offer to purchase, review it carefully. Be sure you understand the effect of any '''subject to clauses''' (explained above).


1. The PGT is satisfied that the adult no longer needs a Statutory Property Guardian.  
{| class="wikitable"
|align="left"|'''Tip'''
You may want to have a lawyer check the offer before you sign it. A lawyer can alert you to problem areas or signs of real estate fraud.
|}


a) Notice must be provided to the adult that they no longer have a Statutory Property Guardian.
===Step 6. Complete the sale===
Sign the documents, receive your money and turn over your keys. Your home is sold!


2.  After a second assessment, the health authority designate accepts that the adult is no longer incapable.
==Common questions==


a) The BC government has created a form for this purpose called ‘Health Authority Designate Acceptance of Determination of Capability’
===Do I have to pay a commission even if the real estate agent doesn’t sell my home?===
Normally, your real estate agent is entitled to be paid their commission when a buyer signs an offer to purchase, and you accept it. The buyer is someone who is “ready, willing and able to buy your home.” If the transaction later falls through, that doesn’t necessarily affect the agent’s right to be paid. The terms of the listing agreement will be key.


b) Notice must be provided to the PGT
If you sell the home yourself while the listing agreement is active, you may have to pay the commission. Check the terms of the listing agreement.


3.  A court order after a review of an incapability assessment under s 35 of the ''AGA''
You may even have to pay the commision is the home sells after the listing agreement has expired — if the agent had previously shown the home to the buyer or was the “effective cause of the sale.”


4.  The court appoints a committee under the ''PPA''
{| class="wikitable"
 
|align="left"|'''Tip'''
=== 3. Serving as a Committee ===
A lawyer can help you avoid situations where you have to pay a commission even where the realtor doesn’t sell your home.
 
|}
==== 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>
===Do I have to pay capital gains tax?===
 
If your home is your principal residence, you don’t have to pay tax on any profit ('''capital gain''') you make when you sell it. This is called the principal residence tax exemption on capital gains.
• 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 ====
If at any time during the period you owned the home, it was not your principal residence, you might not be able to benefit from this tax exemption. A lawyer can advise on whether the principal residence tax exemption applies to you.
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 ====
==Who can help==
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)).  
===With more information===
The '''Real Estate Council of BC''', the body that licenses real estate agents in the province, offers a guide on “Selling a Home in British Columbia.”


'''NOTE:''' At this time there is no section under the ''PPA'' governing the discharge of the PGT as committee.
* [https://www.recbc.ca/sellinghome.html Visit website]


==== c) Release from Liability ====
{{Dial-A-Law_Navbox|type=life}}
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.
{{Dial-A-Law Copyright}}
{{REVIEWED LSLAP | date= June 21, 2019}}
{{LSLAP Manual Navbox|type=chapters15-22}}

Latest revision as of 04:31, 7 October 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Nathan Ganapathi and Anna Kurt, Ganapathi Law Group in October 2017.
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Selling a home is the biggest financial decision most people make. Learn what to consider before putting up the “For Sale” sign, and the steps involved in selling your home.

Key things to consider

You can go it alone or hire a real estate agent

You can sell your own home yourself. Many do. The costs of hiring a real estate agent can be substantial (as the seller typically absorbs the cost on the sale of a home).

But there are advantages to working with a real estate agent. Agents are keenly aware of market trends and can help you get the best possible price for your home. They are connected to networks of potential buyers you would have a hard time reaching on your own. And they can help you navigate a complex process, advising on questions such as:

  • What facts must you disclose?
  • What paperwork is required?
  • What about the existing mortgage?
  • Who ensures you will get your money?
Tip

Under the law in BC, real estate agents must be licensed. You can use the licensee search from the Real Estate Council of BC to see if an agent is currently licensed.

In signing a listing agreement

If you hire a real estate agent, you will be asked to sign a listing agreement. This is a contract between you and your real estate agent, setting out the terms for selling your home.

Most real estate agents use a multiple listing agreement. This means your agent can advertise and show your home to agents from other real estate agencies (and not just their own). In this way, many potential buyers can learn about your home.

Most listing agreements are standardized forms from the local real estate board. The agent may not have a lot of room to negotiate terms. But there are a few terms to pay particular attention to:

  • Who the agent is representing. A real estate agent can be hired as an agent for the seller, as an agent for the buyer, or (as we explain shortly, in very limited circumstances) as an agent for both the seller and the buyer.
  • The length of the agreement. Many agents prefer that the listing agreement continue for three months, but you can choose to list your home for a shorter period. If your home doesn’t sell within that time, you can either extend the term of the listing agreement or change agents.
  • The agent’s pay. The listing agreement sets the amount of the agent’s pay, or commission. In BC, commissions can be a flat fee or a percentage of the sale price of the home. We explain these two options shortly.

The real estate agent’s duties depend on who they are acting for

All real estate agents must act honestly and with reasonable care and skill in performing their work. They also have other duties that depend on who they are acting for.

A real estate agent can be hired as an agent for the seller, as an agent for the buyer, or (in very limited circumstances) as an agent for both the seller and the buyer. Under the law, an agent has to explain how these options change their duties to you.

When an agent is acting only for you, as your sole agent in selling your home, the agent has these duties:

  • a duty of undivided loyalty to you
  • a duty to keep your confidences
  • a duty to obey all your lawful instructions
  • a duty to account for all the money and property you place in their hands while acting for you

Under the rules in BC, real estate agents in the province can not practice dual agency. This means they can not act for both a buyer and a seller in the same transaction, or for two buyers who have conflicting interests. The sole exception to this rule is for property in a remote location that is under-served by real estate agents and it is “impracticable” for the parties to be represented by separate real estate agents.

Before practicing dual agency under this exception, a real estate agent must make a disclosure to both parties to the transaction. The disclosure must inform them of the duties and responsibilities of the agent to the clients, and the risks associated with a dual agency relationship.

The agent typically gets paid after the sale of your home

In BC, a real estate agent’s pay (or commission) can be a flat fee or a percentage of the sale price of the home.

A common approach is for an agent to charge 7% on the first $100,000 of the sale price, plus 2.5% on the rest. For example, if your home sells for $400,000, the commission under this approach would be $14,500:

Portion of price Commission
7% of $100,000 = $7,000
2.5% of $300,000 = $7,500
Total commission = $14,500
 As the seller, you pay this commission to your agent. Your agent then shares it with the buyer’s agent. The commission is typically deducted from the sale proceeds of the home at the time the sale is completed.

If you have a mortgage on your home

If you have a mortgage on your home, you will need to deal with the mortgage in some way in selling your home.

One option to explore is whether a buyer can assume (meaning take over) the mortgage. If a buyer can assume the mortgage, this can save you money, avoiding the costs of paying out the mortgage on the sale.

Another option is paying off the mortgage when you sell your home. Many mortgages have restrictions on paying out the mortgage early. Some have a prepayment penalty, such as three months worth of mortgage payments. Sometimes a lender will waive the prepayment penalty if the buyer takes out a new mortgage with them, or if you take out a new mortgage with them when you buy a new home.

To find out if your mortgage can be assumed or includes a prepayment penalty, check your mortgage contract. Or check with your lender.

For more on mortgages, see our information on mortgages and financing a home purchase.

If you get an offer to purchase

Jasmin.jpeg
“After our kids left for university, we decided to downsize. We got four offers on our home at the first open house. I had no idea there was so much to consider. Between the subject to clauses, the offer prices, the closing dates — it was dizzying. And that was before we even figured out the financing part of it."
- Jasmin, Surrey

If someone offers to buy your home, they will present an offer to purchase. This is a contract setting out the terms of the sale of your home. It is usually written on a standard form provided by the local real estate board. Once you and the buyer sign the offer, it is a binding contract of purchase and sale.

Your real estate agent is under an obligation to bring all written offers to you for your consideration. If several offers are brought to you at once, you are under no obligation to accept any one offer over another.

If there is anything you don’t like in an offer (including the price or the completion date), you can write in your own terms instead. This becomes your counteroffer. This is considered to be a new offer altogether. It becomes a binding contract of purchase and sale if the buyer accepts. If the buyer doesn’t accept your counteroffer, there is no agreement.

If the offer includes a subject to clause

Subject to clauses are conditions that must be met before a sale proceeds. Common subject to clauses a buyer may include in their offer are:

  • subject to the buyer getting financing (for example, a mortgage)
  • subject to the buyer getting a property inspection
  • subject to the buyer selling their home

If you get an offer with a subject to clause, make sure the buyer has only a short time to remove the condition. Your home may be off the market for the time it takes the buyer to remove the condition, and you will likely want to keep that period short.

As well, the subject to clause should be specific. Don’t accept a general clause, such as “subject to buyer obtaining satisfactory financing.” If the buyer changes their mind, all the buyer has to do to get out of the deal is to say they couldn’t get satisfactory financing. Instead, put details in the clause about the financing — the interest rate and principal amount the buyer is seeking to finance — as well as a deadline for when the buyer must remove the clause. A lawyer who practises real estate law can be helpful in this process.

You must disclose any defects to a buyer

As a seller, you must disclose any material latent defects about your home to a buyer. A material latent defect means a defect that cannot be discerned through a reasonable inspection of the property. This includes a defect that makes the home:

  • dangerous or potentially dangerous to the occupants,
  • unfit for habitation, or
  • unfit for the purpose for which the buyer is acquiring it, if the buyer has made this purpose known to the seller.

Common examples of material latent defects include:

  • the basement leaks when it rains
  • structural damage to the property
  • underground storage tanks are located on the property
  • problems with the potability or quantity of drinking water
  • damage caused by the illegal use of the property (for example, a marijuana grow operation)

Failure to disclose material latent defects can result in future problems, including legal issues if the new owner discovers problems that you were aware of and did not disclose.

What things in the home are included in the sale

When someone buys your home, all the fixtures go along with it, unless you and the buyer agree otherwise. Defining a fixture can be difficult: generally, a fixture is anything that’s attached to the home to the point where removing it would damage the home or require repair. The bathroom sink is an obvious example. As objects like chandeliers are sometimes items that homeowners are interested in taking with them after the sale of their home, it is important these fixtures are explicitly excluded from the contract of purchase and sale. Better yet, before you put the home up for sale, replace the chandelier with a simple, inexpensive replacement.

Tip

The appliances — such as your washer, dryer, fridge and stove — aren’t fixtures. They aren’t included in the sale unless you and the buyer agree otherwise. You may be able to use them as bargaining tools if the buyer wants them.

On the completion date

The contract of purchase and sale will state the completion date for the sale. On that day, legal ownership will transfer from you to the new owner in exchange for the purchase price of the home.

It is the normal practice for the buyer’s lawyer or notary public to prepare the documents needed to transfer the legal ownership. You, as the seller, may want to engage a lawyer or notary to act for you. Among other things, they can protect your interests by:

  • checking the documents prepared by the buyer’s lawyer and explaining them to you
  • ensuring your old mortgage has been properly discharged, if this is required
  • ensuring you have no further obligation regarding your old mortgage if it is being assumed by the buyer
  • confirming all payments for which you are responsible have been made
  • arranging for you to sign the transfer documents

The process to sell your home

Step 1. Get a valuation of your home

You will want to know what your home is worth and what it should sell for in today’s market. One way to find out is to get a professional appraisal. This will give you a value for your home based on what comparable homes in your area have sold for and what it would cost to replace your home. The charge will vary with the appraiser, but is often between $200 and $750.

Another way to learn the value of your home is to contact some real estate agents who work in your area. They will look at your home and, for no charge, tell you what price they would list the home for and what they’d expect it to sell for. Keep in mind that realtors are not professional appraisers. You may decide to pay for the greater certainty of a professional appraiser’s opinion.

Step 2. Find out the details of your mortgage

If you have a mortgage on your home, find out:

  • how much is owing on the mortgage
  • whether the buyer can assume the mortgage (as we explained above)
  • if the mortgage includes a prepayment penalty (also explained above)

To find out these details, check your mortgage agreement and statements. Or check with your lender. If the mortgage can be assumed, ask your lender if the buyer will need a certain income to qualify.

Step 3. Decide if you are hiring a real estate agent

Decide if you are going to sell your home yourself or hire a real estate agent.

If you decide to use a realtor, pick someone you trust and are comfortable with. Word-of-mouth is a good way to find a realtor you can work with. Ask friends, neighbours and work colleagues who have recently bought or sold a home who they worked with and how that experience went. The internet is a good way to locate realtors who specialize in properties and regions that may be of interest to you.

Tip

You can use the licensee search from the Real Estate Council of BC to see if an agent is currently licensed.

Step 4. Sign the listing agreement

If you hire a real estate agent, you will be asked to sign a listing agreement. We explain what to watch for above, under “What you should know.”

The agent will provide you with a copy of the agreement. Keep it for future reference.

Step 5. Consider any offer to purchase

If you get an offer to purchase, review it carefully. Be sure you understand the effect of any subject to clauses (explained above).

Tip

You may want to have a lawyer check the offer before you sign it. A lawyer can alert you to problem areas or signs of real estate fraud.

Step 6. Complete the sale

Sign the documents, receive your money and turn over your keys. Your home is sold!

Common questions

Do I have to pay a commission even if the real estate agent doesn’t sell my home?

Normally, your real estate agent is entitled to be paid their commission when a buyer signs an offer to purchase, and you accept it. The buyer is someone who is “ready, willing and able to buy your home.” If the transaction later falls through, that doesn’t necessarily affect the agent’s right to be paid. The terms of the listing agreement will be key.

If you sell the home yourself while the listing agreement is active, you may have to pay the commission. Check the terms of the listing agreement.

You may even have to pay the commision is the home sells after the listing agreement has expired — if the agent had previously shown the home to the buyer or was the “effective cause of the sale.”

Tip

A lawyer can help you avoid situations where you have to pay a commission even where the realtor doesn’t sell your home.

Do I have to pay capital gains tax?

If your home is your principal residence, you don’t have to pay tax on any profit (capital gain) you make when you sell it. This is called the principal residence tax exemption on capital gains.

If at any time during the period you owned the home, it was not your principal residence, you might not be able to benefit from this tax exemption. A lawyer can advise on whether the principal residence tax exemption applies to you.

Who can help

With more information

The Real Estate Council of BC, the body that licenses real estate agents in the province, offers a guide on “Selling a Home in British Columbia.”

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