Guardianship in BC: Committeeship (15:VII)

In BC, adult guardianship (called Committeeship) is currently governed by two acts: the Patient’s Property Act, RSBC 1996 c 349 [PPA] and the Adult Guardianship Act, RSBC 1996 c 6 [AGA]. The PPA allows a judge to declare a person incapable of managing themselves or their affairs and appointing a Committee (pronounced caw-mi-TAY, with emphasis on the end of the word). Section 2.1 of the AGA contains a statutory process by which a person can be declared incapable of managing their financial affairs and the Public Guardian and Trustee becomes their Statutory Property Guardian. All Committees, whether an individual or the Public Guardian and Trustee, are legally authorized to make decisions for the patient, who is incapable of making their decisions for him or herself.

A person may be incapable from birth, or may become incapable at some point later in life. An individual may be rendered incapable due to an accident, illness, or a disability. Being a Committee is the highest form of fiduciary obligation that one person can hold to another.

It is important to keep in mind that the two different processes for creating a Committeeship are quite different from each other and are governed by different pieces of legislation. Students should 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.

IMPORTANT TIP FOR STUDENTS: A client seeking advice or legal information on Commiteeships may be a concerned family member or friend wanting information about the process from the standpoint of acting as Committee to a loved one who has lost capacity. Alternatively, the client may be the individual adult for whom a Committee has been appointed. In either instance, the guardianship process can be emotional, and is often connected to complex family dynamics and longstanding conflicts.

An individual subject to Committeeship, or the threat of Committeeship, may present as extremely upset, angry or confused, especially if there were no court proceedings in which they were involved. In order to assist this client in the best possible way, it is important that the student is aware of the gravity of the situation for the client, and that the student appreciates why the client may be feeling this way. Factors to keep in mind include:

• The effect of a Committeeship is that the adult loses his or her decision-making rights and is considered a non-person under the law;
• The adult will likely have a Committee for the rest of his or her life;
• Committeeship is difficult and costly to reverse;
• The Committee, subject to some limitations, has the power to do almost anything the adult could do for themselves, if he or she were mentally capable. This authority is wide ranging and may include consenting to healthcare, determining where the adult will live, what the adult can purchase, what medications he or she will take, etc. As such, the adult becomes highly dependent on the Committee and is vulnerable to abuse and neglect.
• The test of mental capacity is a legal test, based on the opinion of two doctors. However, the adult may remain able to manage independent decision-making in some aspect(s) of his or her life, and the adult may, at first glance, present as capable.

NOTE: A court ordered Committeeship and its application is a Supreme Court procedure. Provincial courts do not have the jurisdiction required. Consequently, LSLAP cannot represent clients who are applying for Committeeship, nor can LSLAP complete the required forms and documents required for applications. The role of LSLAP in assisting clients with Committeeship matters is strictly informational and advisory.

Clinicians may consult CLAS and the Public Guardian and Trustee for more information on Committeeship. The Public Guardian and Trustee produces a number or helpful publications on Committeeships. The resources can be found at http://www.trustee.bc.ca/reports_publications/index.html. Clients may be advised to contact an Estate and Guardianship Litigation Lawyer, possibly through the Law Society’s Lawyer Referral Service (604-687-3221).

A. Court Ordered Committeeship

A court may appoint a committee to manage a person's affairs (the estate), their person or both.

1. 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;

• conducting banking;
• paying expenses; and
• budgeting for the patient’s family.

As circumstances dictate, a Committee of Estate can also include the authority to:

• dispose of personal and real property through sale or gift;
• enter into contracts on the behalf of the patient;
• operate the patient’s business; or
• bring and defend against all lawsuits in which the patient is a party.

A Committee of Estate can be appointed by the court (family, friend or Public Guardian and Trustee), or after a medical Certificate of Incapability has been issued (Public Guardian and Trustee only). See above.

2. Committee of the Person

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 health care facility. These powers can include such decisions as:

• medical treatment;
• medication; or
• consent to treatment.

A Committee of the Person can only be appointed by the court.

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 15-43