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.

B. The Court Ordered Committeeship Process

There are two steps involved in appointing a Committee for an individual who is incapable:

• an order must be made by the Supreme Court that the patient is incapable of managing his or her own affairs and/or person; and
• the court appoints one or more individuals as Committee of the estate and/or the person.

1. Declaration of Patient Incapability

An individual must be declared incapable of managing his or her 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.
2. The court will then consider the affidavits of two medical practitioners who provide their opinion on the incapacity of the subject.
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 subject’s family and financial affairs.
4. The court then may decide whether the subject is incapable based on the affidavit material before it on the application, or it may proceed: #*a) to direct the issue to be tried, following the Supreme Court Civil Rules
   • b) by order, to require the person to undergo an additional examination with either:
     • i) one or more medical practitioners other than those whose affidavits were before the court
     • 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
     • 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)
5. Notice of the application to the courts must be personally served on the subject not less than 10 days prior to the date of the application hearing. See s 2(2) of the PPA. This requirement may be waived if the court is satisfied that to serve notice of the application would injure the subject’s health, or would otherwise be inadvisable in the interests of the subject.
   • In order for a waiver of notice to be granted, there must be a medical practitioner advising the court that it would harm the subject to be served with notice of the application.

In summary, the court application must include:

• Petition (SCCR 2-1(2));
• Affidavit of Service (unless notice requirement was waived);
• Affidavit of Kindred and Fortune setting out next of kin and financial circumstances of patient (PPA Rules, Rule 2(3));
• Affidavit from two physicians (PPA, s 3(1));
• Notice of Application to Appoint a Committee (PPA Rules, Rule 2(2)); and
• Chamber Order to Appoint a Committee.

2. Resisting a Declaration of Incapability

If the subject of the application wishes to oppose it, he or she is well advised to have a lawyer for the application hearing. The judge may direct that the incapacity issue be tried in Supreme Court (PPA).

a) 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.

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.

b) Appeals

If the subject unsuccessfully opposes the application, he or she can appeal to the BC Court of Appeal. The PPA does not preclude the power of habeas corpus and other prerogative writs.

c) 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 he or she is 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). Note, however, that this applies only to court ordered Committees made under the PPA. Review of a statutory process Committee under the AGA has its own review process under that Act.

3. Appointment of a Committee

Once the subject has been declared incapable, the judge will appoint a Committee. This appointment is governed by the PPA.

a) Private Committee

A family member, friend, or any other person can apply to the court to become a Committee of the patient.

The 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 his or her 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 Section VII.B.3.c: Nomination of Committee by Patient, below). In addition, if the applicant was appointed Attorney, Representative or executor, it would be useful to include proof of this in the application.

b) 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 Public Guardian and Trustee can review the application and oppose the appointment if the applicant is considered unsuitable. The Public Guardian and Trustee may also impose terms on the Committee, or make recommendations to the court that conditions be imposed on the Committee. If the Public Guardian and Trustee does not oppose the appointment, it will issue a letter to that effect. The applicant must present this letter to the judge at the time of the Committee application.

c) Nomination of Committee by Patient

Under s 9 of the PPA, an individual has the power to nominate a Committee of his or her 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 he or she was of full age and of sound and disposing mind (i.e. before the court declares him or her 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, SBC 2009, c 13 [WESA], 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 his or her name on the document. For a full precedent, see Wills Precedents: An Annotated Guide, Continuing Legal Education Society of British Columbia, 2014 (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).

d) 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 his or her moral obligation. Even though the patient’s estate initially pays costs, the Public Guardian and Trustee later reviews the costs to ensure 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.

e) Public Guardian and Trustee as Committee =

The Public Guardian and Trustee (the “PGT”) is a corporation sole 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 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 she is 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. Since December 1, 2014 the PGT may also become committee of estate by the legislative process that is provided by the Adult Guardianship Act. This process is described in the next section. It is important to note that the PGT can only become committee of estate through this process. An appointment as committee of person requires a Court Order.

C. Legislative Process Committeeship (Statutory Property Guardian)

The other process by which a Committeeship can be created is through the legislative process outlined by the Adult Guardianship Act. The major difference over a court order Committeeship is that only the Public Guardian and Trustee can become Committee and only over the adult’s financial affairs. The term used in the legislation is a Statutory Property Guardian [SPG]. However, once the PGT becomes a SPG, the PPA states that the SPG is a committee under the PPA. In short, the process for the Public Guardian and Trustee to become a SPG is through the AGA but then their duties are defined by the PPA.

1. Declaring an Adult Incapable

For an adult to be declared incapable under the AGA a number of steps need to take place.

1. If the concerned person is a health care provider, they can request that a qualified health care provider assess the adult’s incapability. Anyone else can notify the PGT and the PGT can request as assessment of incapability.
   • a) A “qualified” health care provider is defined in section 3 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; College of Registered Nurses of British Columbia; College of Registered Psychiatric Nurses of British Columbia; 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 incapability for review by a health authority designate.
   • a) The proper procedures of an incapability assessment are outlined in sections 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 a order ordered review.
     • i) The assessment is composed of two parts: a medical component (see Appendix O) and a functional component (see Appendix P).
     • ii) Prior to conducting the assessment the adult must be given notice of the purpose of the assessment and their rights (see Appendix P)
     • i) Section 10 outlines that an assessment report must be completed by filling out Form 1 (see Appendix Q) and that details of the assessment must be attached (see Appendix R). 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.
     • ii) 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 section 4 of the SPGR.
3. Upon receiving Form 1, the health authority designate may issue a report of incapability if they are satisfied of a number of criteria. The designate must also have consulted with the Public Guardian and Trustee 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 3(a) through 3(e) of the AGA. Important to note, 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 3(e)).
   • b) The notice required to the adult and a near relative is outlined in section 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 “Health Authority Designate Notice of Intention to Issue a Certificate of Incapability” for the purposes of this notification. (See Appendix S).
     • 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; see Appendix T).
4. Once the Certificate of Incapability is signed by the health authority designate, the certificate must be forwarded to the Public Guardian and Trustee. The adult and, if contact information is known, 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 (See Appendix U).
   • b) The Public Guardian and Trustee becomes the Committee of the adult on the date that the certificate was signed by the health authority designate.
     • i) The Public Guardian and Trustee must inform the adult and, if contact information is known, a spouse or near relative that the Public Guardian and Trustee has 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.

2. 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 Public Guardian and Trustee 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.

3. 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. This right of review is also applicable to any adults who was declared incapable through a certificate signed by the director of a Provincial mental health facility or psychiatric unit as defined in the [Mental Health Act], prior to December 1, 2014.

1. The parties to the court review are the adult, the body that designated the health authority designate who issued the certificate of incapability, and 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 himself or herself.
2. The court may order another reassessment of the adult’s incapability.
3. 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.

4. Ending Committeeship (Statutory Property Guardian Authority under the A GA )

A statutory process Committeeship can be ended in one of four ways.

1. The Public Guardian and Trustee 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” (See Appendix V).
   • b) Notice must be provided to the Public Guardian and Trustee.
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.

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