Vancouver Committeeship Lawyers
A committee is responsible for making decisions for someone who is mentally incapable of making decisions for themselves. Committees hold a substantial amount of power over the day-to-day life of the subject of the committeeship. As a result, committees are bound by strict legal and ethical duties.
Meridian Law Group represents clients on either side of committee matters, including committees and those challenging the conduct or appointment of a committee. The firm’s dedicated estate litigators provide pragmatic advice and skilled advocacy to protect the client’s rights and resolve conflict as efficiently as possible.
Committeeship in British Columbia
Committeeship in British Columbia is governed by the Patients Property Act. Committees may be an individual who is close to the mentally incapable person in question (the “patient”) or the Public Guardian and Trustee of British Columbia.
Who Can Be a Committee?
Individual committees (sometimes referred to as “private committees”) are appointed by application to the court. An Application for Committee must include two affidavits from medical practitioners stating that the patient is unable to make their own decisions due to either:
- Mental infirmity arising from disease, age, or otherwise; or
- Disorder or disability of mind arising from the use of drugs.
If no one is willing and suitable to be a patient’s committee, the Public Guardian and Trustee (PGT) will fill the role until a private committee is appointed. The PGT is an independent body mandated by statute to protect vulnerable individuals in British Columbia who cannot care for themselves. In cases where a person applies to become a private committee, the PGT reviews the application and makes recommendations to the court about potential conditions or limitations on the committeeship.
Applications for Committee are not always straightforward and can involve many competing personal and medical considerations. A person may disagree with the application as they believe the proposed subject of the committeeship does not lack capacity, or there are concerns about the intentions of the person applying to become committee. Disputes about committeeship can be technically complex and require the assistance of an experienced litigation lawyer.
Types of Committeeship
There are two types of committees in British Columbia:
- Committee of the person, who can make decisions about the patient’s daily care (including where they live) and medical treatment.
- Committee of the estate, who can make decisions about the patient’s financial and legal matters. Sometimes this role is filled by a financial institution. The Public Guardian and Trustee automatically becomes the committee of the estate (but is called a “statutory property guardian”) if a Certificate of Incapability is issued by a health authority designate under the Adult Guardianship Act.
A person may be appointed committee of both the person and estate or limited to only one role. More than one person can be appointed as committee, creating co-committees that share power and responsibilities.
Duties of a Committee
A committee is a fiduciary, meaning they are in a position of trust. Committees are required to always act in the patient’s best interests and must:
- Exercise their powers for the benefit of the patient;
- Foster the independence of the patient and encourage their involvement in decisions as much as is reasonable;
- Refrain from taking any action where there is a conflict of interest (i.e. where the committee’s personal interests are in direct conflict with the best interests of the patient) without first receiving approval from the Public Guardian and Trustee or the court; and
- Meticulously document all decisions made on behalf of the committee, with supporting evidence and relevant records.
Committee of the Person
Committees of the person have many care and health-related decision-making duties, including:
- Health Care & Medical Treatment: Committees should consult with the patient’s medical team, loved ones, and the patient (when possible) about their health care. There are several prohibited and restricted medical treatments under British Columbia’s laws that a committee can never consent to, such as non-therapeutic sterilization.
- Living Arrangements: The committee of the person is responsible for determining where a patient should live – i.e., whether they can remain at home or have needs that can only be met by a residential care home or other institution. The committee has to consider the patient’s particular support needs, their preferences and wishes, and the affordability of the available options.
- Contact With Others: Given the patient’s vulnerable state and their inability to make safe decisions, the committee must ensure all individuals who have access to the patient do not pose a risk to the patient’s wellbeing.
Committee of the Estate
For the purpose of committeeship, a patient’s “estate” includes all of their physical property, assets, financial holdings, and investments. A committee of the estate’s obligations include:
- Recordkeeping: The committee must keep an updated inventory of assets and detailed accounting records for all transactions and investments made on the patient’s accounts.
- Remuneration: Committees are entitled to be paid for their efforts out of the patient’s estate but can only do so with the approval of the Public Guardian and Trustee. The PGT also sets the amount of remuneration, which the committee must not exceed.
- Investments: Under British Columbia’s Trustee Act, the committee must act as a “prudent investor” and make reasonable and balanced investment decisions. The committee should follow a written investment plan that documents their efforts to reduce the amount of risk to the patient’s assets.
- Hiring Professionals: While committees cannot delegate their authority, they are entitled to retain professional guidance for handling the patient’s finances, such as investments advisors, real estate agents, property appraisers, and legal counsel. The committee must act reasonably and prudently when retaining professional assistance and monitor the work done by the professional.
As the independent body mandated to oversee all committees in British Columbia, the Public Guardian and Trustee has several useful resources to guide committees in their decision-making.
Limitations to Committee’s Powers
The court order appointing the committee will set out any specific limitations on the committee’s authority. For example, a committee may be required to obtain permission from the Public Guardian and Trustee before handling a particular type of asset or property. This order can be varied over time by application to the court.
Additionally, committees never have the power to take the following actions on behalf of the patient:
- Vote in elections;
- Consent to marriage or adoption;
- Create or amend a Will, or make other estate planning decisions;
- Act in criminal proceedings where the patient is charged with a crime; or
- Make a Power of Attorney, Health Care Directive, or Representation Agreement.
Committee Conduct & Accountability
Passing of Accounts
As fiduciaries, committees must be transparent and accountable for their conduct. Committees are required to pass their accounts to the Public Guardian and Trustee’s office, which oversees private committees in British Columbia. The PGT has prescribed forms and timelines for committees to pass their accounts, which includes a review of the following documentation:
- Records documenting the market value of the patient’s assets and liabilities;
- The patient’s tax returns and Notices of Assessment;
- Ledgers, receipts, and other transactional records; and
- Any other documents required by the Public Guardian and Trustee.
Once the PGT has approved the committee’s accounts, it provides a Certificate of Passing of Accounts. The committee is also advised of the fee they are entitled to be paid for their services.
Committees can also be required to pass their accounts before the court on application by the patient or the committee of the estate (if different from the committee of the person). If the committee fails to correctly pass the accounts, the court may direct the committee to attend court or take any other action it deems necessary.
Investigation of Committees
Private committees are required to provide an accounting to the Public Guardian and Trustee’s office. The PGT is empowered by statute to investigate a committee’s handling of a patient’s care or finances and may choose to do so on its own initiative or upon receiving a complaint. If the PGT finds the committee has failed to act in the patient’s best interests or has engaged in misconduct, it may choose to bring a court action to revoke the committee order. In the absence of another suitable and willing individual to step in, the PGT will take over the role of committee.
Discharge of Committee
If a patient regains the mental capacity to make their own decisions, they may apply to the court to end the committeeship and discharge the committee from their duties. The committeeship may also terminate upon:
- An application to the court to remove or replace the committee, if the committee becomes unwilling or unable to continue to act; or
- The patient’s death, once the committee has provided a final accounting to the executor or administrator of the patient’s estate and is discharged from their duties by the court.
Contact Meridian Law Group in Vancouver for Experienced Representation in Committeeship Matters
For over three decades, Meridian Law Group has provided trusted advice and skilled advocacy in committeeship matters and other estate litigation. Upon reviewing the details of a case, the firm’s estate litigators take prompt action to preserve clients’ legal rights and resolve disputes efficiently and with as little conflict as possible.
Meridian Law Group is located in downtown Vancouver and is known for legal excellence and exceeding client expectations. The firm represents clients in West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. Meridian Law Group also represents clients across Canada and internationally. To schedule a confidential consultation with an experienced estate litigation lawyer, reach out online or call (604) 687-2277.