A committee is placed in charge of making decisions for someone incapable of making decisions relating to their personal care, medical treatment, financial and legal issues.
Under the relevant British Columbia legislation, specific evidence is required before a court can declare that someone is incapable of managing their affairs. This article looks at the nature of the required evidence and what can happen if the person’s family lacks such evidence but believes that they need protection because they lack requisite capacity.
If a mentally incapable person does not already have a valid power of attorney allowing someone to make decisions on their behalf, they may need the assistance of a friend or relative to manage their affairs. In these instances, an individual can apply to the court to act as the person’s committee and manage their affairs.
There are two categories of committees, namely:
- a committee of the estate who is charged with making decisions about a person’s financial and legal matters; and
- a committee of the person which deals with a person’s medical treatment and care arrangements.
A person or group can be appointed as both a committee of the estate and a committee of the person.
Under the British Columbia Patients Property Act, a court may appoint a person to be the committee of a “patient”. Section 2 allows a person to apply to the court for an order declaring that a specific person is incapable of managing their affairs or themselves because of:
- mental infirmity arising from, for example, disease or age, or
- disorder or disability of mind due to the use of drugs.
Under section 3 of the Patients Property Act, a court can make such an order if it is satisfied that, after hearing an application and reading the evidence of two medical practitioners, the person is incapable of managing their affairs or themselves due to mental infirmity or disorder/disability of the mind.
If a person believes that another person is incapable of managing their affairs, but they do not have the support of two medical practitioners who have conducted a relevant assessment, they are unable to seek an order under the Patients Property Act.
However, under section 32 of the Adult Guardianship Act, a person that is concerned that another person is incapable of managing their financial affairs can notify the Public Guardian and Trustee (the “PGT”). The PGT may then request a health care provider to assess their capacity, which can subsequently lead to a certificate of incapability being issued.
Son asks court for a declaration under the Patients Property Act; father disagrees that he is incapable
The recent decision of the Supreme Court of British Columbia in Sandhu (Re) highlights what can happen when a person thinks that a family member is incapable of managing their affairs, but the family member in question disagrees.
In this case, a 76-year-old man’s son applied to the court for an order declaring his father incapable of managing his affairs due to mental infirmity from disease or age. The son also sought to appoint himself as committee over his father’s estate.
In support of the application, the son had one opinion from a medical practitioner. However, a second doctor thought that his father was capable. As a result, the son asked the Court to order his father to attend another medical examination.
The son fell out with his parents approximately 20 years prior to the application. They reconnected after his father was injured at home but the relationship deteriorated after the parents claimed that the money they gave their son to pay for renovations to their house was kept for his own personal use.
After another injury at home, the father was diagnosed with a neurocognitive disorder in hospital, however, the doctor did not provide an opinion as to his capability. A short time later, the father agreed to undergo an assessment, after which the doctor thought that he was incapable of managing his affairs. A second medical evaluation, this time arranged by the father, found that he was capable.
After another fall, the father granted his wife’s brother-in-law a power of attorney to make financial and medical decisions on his behalf. The father did not want his estranged son to deal with his affairs.
Justice Shergill noted that the son needed two medical practitioners to support his application and considered whether the Court had the power to order the father to undergo another assessment.
Her Honour decided that the Court could not make this order under the present circumstances. The Adult Guardianship Act allowed the PGT to authorize an assessment of the father and it had not sought to investigate his capacity.
In any event, her Honour decided that there was no serious question to be tried as to the father’s capacity, concluding that:
“while [the father] has had significant health concerns and has been embroiled in legal disputes for several years, this does not mean that he is in need of protection or may be incapable. … There is no indication that there are gaps in [his] care, or that he is personally at risk, or vulnerable to abuse or neglect.”
For over three decades, Meridian Law Group has provided skilled advice and representation in committeeship matters and all other forms of estate litigation. Our team of estate litigators works quickly to protect their client’s position and aims to resolve disputes while preserving relationships wherever possible.
Meridian Law Group is located in downtown Vancouver and is ready to assist you with any estate issue. To arrange a confidential consultation to discuss your circumstances, please call us at (604) 687-2277 or fill out our online form.