In British Columbia, a committee may be appointed when a person is incapable of managing their affairs. This may be someone close to the individual in question or the Public Guardian and Trustee of British Columbia (“PGT”). They make decisions about the person’s care, medical treatment, and/or financial and legal matters.
But what happens when there is a disagreement over who should act as the committee? This article reviews how the courts determine who should manage the affairs of a person who needs help.
A person who can no longer manage their own affairs may have already planned ahead and executed a power of attorney, giving another person (the attorney) the ability to make decisions relating to financial and legal matters. However, if a power of attorney is not already in place and a person needs assistance due to incapacity, a friend or relative can apply to the court to manage a person’s affairs.
Under the Patients Property Act, a court may appoint a person to be the committee of a “patient”. After hearing from two medical practitioners, the court needs to be satisfied that the person is incapable of managing him/herself or their affairs by reason of mental infirmity, for example, arising from disease or age, or disorder or disability of mind arising from the use of drugs.
There are two types of committees. A committee of the estate makes decisions about the person’s financial and legal matters, such as how to manage assets for the person’s benefit. On the other hand, a committee of the person manages the person’s medical treatment and living arrangements. Notably, the committee must make decisions for the benefit of the patient and their family.
A family member, friend or trust company can apply to the court to serve as the committee. The PGT can also apply to act as the committee. The PGT states that it steps in:
“Where there are no family or friends who are willing and able to act, or when there is a conflict among family members about committeeship and a neutral party is preferred to take on the role.”
The PGT will become the committee of the estate if a health authority issues a certificate of incapability under the Adult Guardianship Act.
Disputes may result when someone applies to the court to become the committee. For example, another individual may argue that the patient does not lack capacity or that they should be appointed instead.
The Patients Property Act does not lay down any criteria to guide the court in selecting a committee. However, courts have identified various factors over the years, including:
- the patient’s wishes when they were capable of forming them;
- whether immediate family members agree with the appointment;
- whether the proposed committee would consult with family members;
- the level of previous involvement of the proposed committee with the patient;
- the level of understanding of the proposed committee with the patient’s situation;
- whether the proposed committee will ensure the income and estate are used for the patient’s benefit;
- whether a proposed committee has demonstrated an inability to handle the patient’s affairs;
- whether the proposed committee has a plan and is able to carry it out; and
- whether dividing responsibilities would be beneficial or counter productive.
The Courts will consider all the facts in the specific circumstances of each case.
The recent decision of the Supreme Court of British Columbia in Cervo (Re) demonstrates how the court deals with a dispute where multiple people seek to be appointed committee. A woman with dementia and delusional disorder, who lived in a seniors community, needed a committee. The woman’s daughter and granddaughter disagreed and both brought applications to be appointed to the committee.
The PGT declined to take the appointment but called on the court to impose a few conditions including a requirement not to draw on a line of credit.
Justice Branch looked at the various factors and noted that some favoured the daughter’s appointment, while others favoured the granddaughter. For example, the daughter was appointed co-executor of her mother’s will, had been involved in her mother’s care and was a care worker.
The granddaughter relied on support from the woman’s other daughter, her ability to manage financial affairs (in contrast to her mother’s past bankruptcy) and she had a detailed plan of care and management.
Justice Branch found that there was a likelihood of conflict if the daughter was appointed to the committee because the mother and other daughter owned a condo as joint tenants. The mother transferred her interest to the other daughter in 2018. The daughter seeking to be appointed had tried to unwind this transfer.
His Honour explained that this conflict was the key factor and it favoured the granddaughter who had greater objectivity and a lesser financial interest in the outcome. As a result, his Honour appointed the granddaughter as the sole committee, with a number of conditions, including that she obtain advice on whether to pursue a challenge to the transfer.
For over three decades, Meridian Law Group has provided sound advice and skilled representation in committeeship matters and all other forms of estate litigation. Our team of estate litigators takes prompt action to protect the rights of their clients and resolve disputes effectively and with as little conflict as possible.
Our firm is located in downtown Vancouver and represents clients in West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To schedule a confidential consultation to discuss your estate dispute, please call (604) 687-2277 or reach out to us online.