Most British Columbians who plan for incapacity do so with two documents: an enduring power of attorney for financial matters and a representation agreement for health and personal care. Those documents are meant to keep decisions in the hands of someone the adult chose, and out of court. But when a relative applies to have the adult declared incapable and a committee appointed under the Patients Property Act, the attorney or representative is often surprised to learn what a committeeship order does to their authority.
A court declaration of incapacity terminates every power of attorney the adult granted, automatically and without any discretion, and terminates every representation agreement as well unless the court orders otherwise. That single exception, found in section 19(b) of the Act, is where most of the litigation happens.
In this blog, the estate litigation team at Meridian Law Group explains what section 19 does, the three-part test the Supreme Court of British Columbia applies when deciding whether to preserve a representation agreement, and how two decisions, Lindberg v. Lindberg, 2010 BCSC 1127 and Baker-MacGrotty v. Baker, 2016 BCSC 699, reached opposite results on similar facts.
What does section 19 of the Patients Property Act do?
Section 19 provides that when a person is declared by a judge to be incapable of managing themselves or their affairs, every power of attorney given by that person is terminated, and, unless the court orders otherwise, every representation agreement made by that person is terminated. The Act gives the court no discretion to save a power of attorney; once the declaration is made, the attorney’s authority is gone. A representation agreement, by contrast, is presumed to end but can be preserved by court order.
The position is different where the adult has not been declared incapable by a judge but has instead been certified incapable by the director of a mental health facility under the Mental Health Act. In that case, sections 19.1 and 19.2 apply: the power of attorney and the property provisions of any representation agreement are suspended rather than terminated, and the Public Guardian and Trustee (the “PGT”) decides whether it is necessary or desirable for the PGT to manage the adult’s property. If the PGT decides it is, the suspended power of attorney is terminated and the suspended provisions of the representation agreement are cancelled. This post focuses on the court route, which is the one families encounter in a contested application.
When will the court preserve a representation agreement?
The court will preserve a representation agreement where it was made freely and with capacity, is broad enough to do the job, and the application to set it aside is driven by something other than genuine concern about the representative’s conduct. The Patients Property Act itself sets no criteria, so in Lindberg v. Lindberg the court identified three:
- the circumstances in which the representation agreement was executed,
- the scope of the agreement, and
- the basis for the application to set it aside.
The court in Lindberg also explained why the discretion exists. The Representation Agreement Act and the enduring power of attorney provisions were enacted to let adults plan for a catastrophic or degenerative illness and to give effect to their autonomous choice of decision-maker beyond the onset of dementia. Where a valid representation agreement is in place and working, the court said, an application to appoint a committee is unnecessary.
Lindberg v. Lindberg: the representation agreement survives
The adult was an 87-year-old widow living in Abbotsford. In early 2005, with the assistance of a senior lawyer, she signed a will, an enduring power of attorney, and an enhanced representation agreement, all naming a long-standing family friend as her representative. The representation agreement covered personal care, health care, and the routine management of her financial affairs, expressly including the sale of her land. On the evidence of her own family doctor and her son, she did not show signs of dementia until 2008, more than three years after the documents were signed.
The representative made no use of the documents until December 2009, when the Abbotsford police called to report that the adult was struggling to care for herself and was at risk from people living in her basement. The representative worked with the police and the health authority to move her into a care facility, evicted the tenants, secured and insured the empty house, and listed it for sale. The house was worth roughly $850,000 with no mortgage, and the representative’s evidence was that the adult’s income could not cover both the cost of her care and the taxes, utilities, insurance, and security on a vacant home.
The adult’s only son responded by petitioning to be appointed committee of his mother’s person and estate, and obtained an ex parte injunction freezing the property. He wanted his mother moved to a facility near his home in Vancouver and believed the house should not be sold while Abbotsford prices were low.
Applying the three factors, the court found no concern about the circumstances of execution: the agreement was made with legal assistance years before any sign of disability, with no hint of undue influence. Its scope was broad, and its execution alongside a will naming the same person as executor showed the adult’s confidence in her choice. And the petition had been brought because the son disagreed with the decision to sell the house, not because of any concern about how the representative had conducted herself. The court found that the representative had acted only when asked to protect the adult, without regard to her own interests. It ordered that the representation agreement be preserved under section 19(b), dismissed the committeeship petition outright, and added that it would in any event have set aside the injunction because the son’s affidavit had created a misleading impression of urgency.
Baker-MacGrotty v. Baker: the representation agreement is terminated
The second case looked similar on the surface but differed on every one of the three factors. The patient, an 84-year-old mother of two, was diagnosed with Alzheimer’s-type dementia in 2009, when cognitive testing already placed her at 7 out of 30 on the Montreal Cognitive Assessment. She signed her power of attorney and representation agreement in May 2013, four years into that diagnosis, naming her husband and her son and excluding her daughter. The lawyer who prepared the documents had no prior relationship with the patient, had no knowledge of her medical condition, and was never told about her diagnosis, even though the son, who knew of it, attended every meeting.
On the first factor, the court described those circumstances as “quite troubling.” On the second, the agreement was broad, but its breadth was undermined by the patient’s compromised cognition and her naïve belief that appointing her son would keep her in her own home rather than in residential care. On the third, the basis for the application was the conflict of interest identified by the PGT: the son was living in his mother’s house, her only significant asset, while she lived in a single room in a care facility on a negative monthly cash flow, and he had neither considered selling the house nor paid reasonable rent. He had also accepted a $32,480 fifth-wheel trailer as a gift from his parents shortly after his appointment, most of it borrowed money.
The court terminated the representation agreement, declared the mother incapable, and moved on to decide who should be committee, appointing the daughter. How the court made that choice, and the factors it applies when family members compete for the role, are covered in our companion post on how the court decides who to appoint in a contested committeeship.
What the two cases mean for attorneys, representatives, and families in BC
Read together, Lindberg and Baker-MacGrotty give clear guidance on both sides of a committeeship application.
For an attorney or representative facing a petition, the strongest position is a representation agreement made while the adult was plainly capable, with independent legal advice, followed by conduct that has served the adult’s interests rather than the representative’s own. On those facts the court can preserve the agreement and dismiss the petition entirely, as it did in Lindberg. Note, however, that section 19 offers no equivalent protection for a power of attorney. If an adult wants their chosen decision-maker’s financial authority to survive a court declaration, that authority needs to be found in a representation agreement with the relevant financial powers, as it was in Lindberg.
For a family member bringing the application, the lesson is to build the evidence around the three factors. Disagreement with a representative’s decision, such as the sale of the family home to fund care, is not enough on its own; that was precisely the son’s problem in Lindberg. What moves the court is evidence that the documents were signed after capacity was compromised, particularly where the beneficiary of the appointment arranged the lawyer or attended the meetings, and evidence that the representative is in a conflict of interest or has treated the adult’s assets as their own. Where such conduct is suspected, it may also support an application to remove the attorney or to freeze assets while the committeeship petition proceeds, though Lindberg is a reminder that an ex parte injunction obtained without full and frank disclosure will not survive.
Frequently asked questions about committeeships and powers of attorney in BC
Does a committeeship order cancel a power of attorney in BC?
Yes. Under section 19(a) of the Patients Property Act, when a judge declares a person incapable of managing themselves or their affairs, every power of attorney that person granted is terminated. The court has no discretion to preserve it, and the attorney’s authority ends with the declaration.
Can a representation agreement survive a declaration of incapacity?
Yes. Section 19(b) terminates a representation agreement unless the court orders otherwise. The court will preserve the agreement where it was made with capacity and without undue influence, its scope is adequate, and the application to set it aside is not founded on genuine concerns about the representative’s conduct, as in Lindberg v. Lindberg.
What factors does the court consider before setting aside a representation agreement?
The court applies the three factors from Lindberg v. Lindberg: the circumstances in which the agreement was executed, including the adult’s capacity and who arranged the lawyer; the scope of the agreement; and the basis for the application to set it aside, in particular whether the representative is in a conflict of interest or has acted for their own benefit.
Can a valid representation agreement stop a committeeship application altogether?
It can. In Lindberg v. Lindberg the court held that where an effective representation agreement is in place, an application to appoint a committee is unnecessary, preserved the agreement, and dismissed the son’s petition without requiring further medical evidence of his mother’s incapacity.
What happens to a power of attorney if the adult is certified under the Mental Health Act rather than declared incapable by a court?
Under sections 19.1 and 19.2 of the Patients Property Act, the power of attorney and the property provisions of any representation agreement are suspended rather than terminated. The Public Guardian and Trustee then decides whether it should manage the adult’s property; if so, the power of attorney is terminated and the suspended provisions are cancelled.
Contact Meridian Law Group for Trusted Advice on Powers of Attorney and Committeeships in Vancouver
Disputes over who should make decisions for an incapable adult are legally technical and emotionally charged, and the outcome often turns on evidence gathered long before anyone goes to court. The estate litigation lawyers at Meridian Law Group advise attorneys, representatives, and family members on powers of attorney, committeeship applications, and elder law concerns. From the prominent Nelson Square Building in downtown Vancouver, the firm has advocated for clients across British Columbia for more than three decades, including in West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To discuss your matter, please call (604) 687-2277 or contact us online.
About the author, Sarah MacDonald. Sarah MacDonald is a litigation lawyer at Meridian Law Group in Vancouver. She earned her Juris Doctor from the Peter A. Allard School of Law at the University of British Columbia (2024) and was called to the British Columbia Bar in 2025, having joined the firm as an articled student in 2024. She holds an Honours Specialization in International Relations from Western University (2021), was the 2023 recipient of the Marlee G. Kline Essay Prize, and represented Allard at the 2024 BC Law Schools Competitive Moot. Sarah practises in general civil litigation, including estate litigation, insurance law, personal injury, commercial litigation, and property matters, and has appeared before the Provincial Court and the Supreme Court of British Columbia. She is a member of the Canadian Bar Association and the Law Society of British Columbia.
