Quick answer: In British Columbia, a committee is a court-appointed substitute decision-maker for an adult who cannot manage their own affairs. The BC Supreme Court appoints a committee of estate (money and legal matters), a committee of the person (health and personal care), or both, under the Patients Property Act. A committee is a fiduciary who must act in the patient’s best interests. Committeeship is a last resort where no enduring power of attorney or representation agreement exists.
The BC population is aging, and dementia, Alzheimer’s disease, and related disorders are on the rise. Over the years, our BC estate litigation team has written extensively about setting aside a trust, will, gift or transfer of property due to lack of capacity, and we recently focused on mental incapacity in the context of predatory marriage. While there are different levels of capacity for different types of decisions – for example, the capacity to marry is different from what is known as “testamentary capacity” to make a will – it is not uncommon for these cases to also involve the question of whether a person is incapable of managing his or her personal, financial, or legal affairs due to mental infirmity. In today’s post, our BC estate litigators will look at the nature of committeeship, applications to decide the question of capacity, and determine who should be appointed as committee.
Overview of substitute decision making in BC
BC has a system in place for determining “substitute decision-makers” for a person who lacks the capacity to make decisions with respect to personal care, legal affairs, or finances. When a person becomes mentally incapable of making certain decisions for themselves, the first question is whether an Enduring Power of Attorney and/or representation agreement was executed while the person was still mentally capable. If so, the individual(s) appointed by the now-incompetent person will have the authority to make decisions on behalf of the incapable person. If there is no valid Enduring Power of Attorney or representation agreement in place, it will be necessary to apply to the BC courts for an order appointing a “committee.”
The nature of committeeship in BC
A committee is appointed by the courts to make decisions for a person who cannot make decisions for themselves due to mental incapacity. There are two types of committeeship:
- Committee of person (to make personal and medical decisions, including decisions about where the person will live or whether to accept health care treatment).
- Committee of estate (to make financial and legal decisions).
Capacity to manage financial and legal affairs is often lost before a person loses the capacity to manage their personal care. Depending on the circumstances, the court can appoint a committee of estate, a committee of person, or both.
BC Supreme Court application for committeeship
A committee is appointed by order of the BC Supreme Court made on application under the Patients Property Act, R.S.B.C. 1996 c. 349 (“PPA”). Under section 2 of the PPA, the Attorney General, a near relative of a person, or other person may apply to the court for a declaration that a person is incapable of managing his or her affairs, incapable of managing himself or herself, or both. The Public Guardian and Trustee (“PGT”) may be appointed as committee if no suitable person is willing to act.
Confirming lack of capacity
The starting point on the application is that an adult is presumed to have capacity. The onus is on the person who alleges a lack of capacity to establish otherwise. A committee can be appointed only if two medical practitioners provide an opinion to the court that the person is mentally incapable. If the court is satisfied as to the person’s incapacity upon hearing the application and reading the affidavits of the two medical practitioners opining that the person in question is incapable because of mental infirmity, disorder or disability, then section 3(1) of the PPA stipulates that the court must make the order declaring incapacity. The PPA does not impose a standard such as “satisfied beyond a reasonable doubt.” If the court is not satisfied as to the person’s incapacity, it may:
- dismiss the application;
- order a trial of the issue of capacity under subsection 3(2) of the PPA; or
- order further medical examination under section 5 of the PPA.
A person found to be incapable of managing his or her affairs, and/or himself or herself, in accordance with section 3(1), is, by definition, a “patient” within the meaning of the PPA.
Determining who should be committee
If you have concerns that a family member or friend if being taken advantage of due to mental incapacity, or have questions about committeeship applications, claims for lack of capacity or undue influence, contact Onyx Law Group’s team of Vancouver family law and estate litigation lawyers for a 30-minute free consultation.
What a committee must actually do once appointed
Being named committee is not a reward or a title. It is a job with legal duties, and a court can remove a committee who does it badly. A committee is a fiduciary, which means the law holds them to the highest standard of good faith and requires them to put the patient’s interests ahead of their own.
Section 18 of the Patients Property Act sets the core duty: a committee must exercise their powers for the benefit of the patient and, so far as is reasonable, encourage the patient to take part in decisions that affect them. Incapacity is rarely total. A patient may still hold clear views on where they live or how their money is spent, and the committee is expected to listen for them rather than override them by default.
The practical duties follow from that standard. A committee of estate keeps the patient’s money and property separate from their own, spends it only on the patient, keeps records, and accounts for what they have done. The Public Guardian and Trustee reviews committee appointments and continues to oversee committees after they are appointed, and a committee of estate can be required to report and to account to the PGT. A committee who mixes funds, pays themselves, or cannot explain where the money went is exposed to personal liability.
Avoiding committeeship: plan while you still have capacity
Committeeship is the most restrictive and most court-driven option in BC, and it exists mainly for people who did not, or could not, plan ahead. Two documents made while you are still capable can take its place, and both are cheaper, faster, and more private than a court application.
An enduring power of attorney, made under the Power of Attorney Act, lets you name someone to handle your financial and legal affairs, and it keeps working after you lose capacity. A representation agreement, made under the Representation Agreement Act, does the same job for health care and personal decisions. A section 7 “standard” agreement covers routine matters and can be made even with reduced capacity; a section 9 agreement is broader and can reach more serious health-care choices. Put both in place and there is usually no reason for anyone to apply to court for a committee at all.
When committeeship ends or changes
A committeeship is not automatically permanent. Capacity can return, and if it does, an application can be made to end the order. The Public Guardian and Trustee stays involved throughout and can step in as committee where no suitable family member or friend is willing or able to act. If you are worried that the wrong person has been appointed, or that a committee is not acting in the patient’s interests, those concerns can be brought back to the court.
Frequently asked questions about BC committeeship
What is the difference between a committee of estate and a committee of the person?
A committee of estate makes financial and legal decisions for the patient, such as managing bank accounts, property, and bills. A committee of the person makes personal and health-care decisions, such as where the patient lives and what medical treatment they receive. The BC Supreme Court can appoint one, the other, or both, depending on what the patient can no longer manage.
Who can apply to be appointed committee in BC?
Under the Patients Property Act, the Attorney General, a near relative of the person, or another person may apply to the BC Supreme Court for a declaration of incapacity and appointment of a committee. The court decides who is suitable. If no appropriate individual is willing to act, the Public Guardian and Trustee may be appointed as committee.
How does a court decide someone is incapable?
An adult is presumed capable, and the person alleging incapacity has to prove otherwise. A committee can be appointed only after two medical practitioners give the court their opinion that the person is incapable because of mental infirmity. If the court is satisfied on that evidence, section 3 of the Patients Property Act requires it to make the declaration.
Can I avoid committeeship entirely?
Usually, yes, if you plan ahead. An enduring power of attorney under the Power of Attorney Act covers your financial and legal affairs, and a representation agreement under the Representation Agreement Act covers health and personal care. Both are made while you are still capable and both continue to work after you lose capacity, which removes the need for a court-appointed committee.
Is a committee allowed to be paid or to keep the patient’s assets?
No. A committee is a fiduciary who must act for the patient’s benefit under section 18 of the Patients Property Act. They must keep the patient’s property separate, spend it only on the patient, and account for it. The Public Guardian and Trustee oversees committees, and a committee who misuses the patient’s assets can be removed and held personally liable.
Disclaimer: This article is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC law and procedure change, and the rules that apply to any specific case depend on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia estate or incapacity lawyer directly.