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Difference between revisions of "Guardianship in BC: Committeeship (15:VII)"
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Guardianship in BC: Committeeship (15:VII) (view source)
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*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. | *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. | :'''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). | 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). | ||
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If a patient (as opposed to the Committee) transfers his or her 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). | If a patient (as opposed to the Committee) transfers his or her 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 his or her 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) | :'''NOTE:''' An Enduring Power of Attorney or representation agreement is ''terminated'' when a person becomes a ‘patient’ by being declared incapable of managing his or her 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) | ||
=== 3. Remuneration === | === 3. Remuneration === | ||
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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)). | 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: http://www.trustee.bc.ca. | :'''NOTE:''' The Public Guardian and Trustee has helpful information for private committees at: http://www.trustee.bc.ca. | ||
== E. Discharge of a Committee == | == E. Discharge of a Committee == | ||
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Where the Public Guardian and Trustee is acting as Committee, the Public Guardian and Trustee is liable for payments made out of an estate that were not mandated by court order, if they were not reasonable in the circumstances. The existence of a court order mandating payments at a lower level would make voluntary higher payments unreasonable: see ''Wood v British Columbia (Public Trustee)'', (1986) 25 DLR (4th) 356. | Where the Public Guardian and Trustee is acting as Committee, the Public Guardian and Trustee is liable for payments made out of an estate that were not mandated by court order, if they were not reasonable in the circumstances. The existence of a court order mandating payments at a lower level would make voluntary higher payments unreasonable: see ''Wood v British Columbia (Public Trustee)'', (1986) 25 DLR (4th) 356. | ||
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