Committeeship Applications in British Columbia

Lawyers for Committeeship Applications

The BC population is aging, and dementia, Alzheimer’s disease, and related disorders are on the rise. While there are many different levels of capacity for different types of decisions, 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.

A Committee is a person appointed by order of the BC Supreme Court made on an application under the Patients Property Act, to manage another person’s health and financial affairs. This often occurs when a person is already incapacitated and they do not have a power of attorney or representation agreement in place.

What is the Role of a Committee?

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.

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)

What is the Committeeship Process?

Applying for a committee order is a complex and lengthy process. 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 opening that the person in question is incapable because of mental infirmity, disorder or disability, then the court must make the order declaring incapacity.  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.

What each type of committee can and cannot do

The two committee roles carry different powers, and the difference is not cosmetic. A committee of estate takes on the authority set out in section 15 of the Patients Property Act: the same power over the patient’s financial and legal affairs that the patient would have if capable and of full age, subject to any limits the court builds into the order. That covers banking, paying bills, managing investments, dealing with real estate, and running or winding down a business. It does not stretch to everything, though. A committee cannot make or change the patient’s will, and larger or unusual steps, such as selling the family home or making a substantial gift, often need the court’s direction rather than the committee’s say-so alone.

A committee of person handles decisions about care rather than money: where the adult lives, what health care they receive, and the day-to-day arrangements that follow from those choices. One person can hold both offices, or the court can split them between two people where that better suits the family. Because the roles reach into an adult’s most personal decisions, the court looks closely at who is proposed and whether that person is genuinely suitable, not merely willing.

Inside a committeeship application: notice, the PGT report, security, and accounts

A committeeship application is not simply a matter of filing the two medical affidavits and waiting. The applicant, usually a spouse, adult child, or other close relative, must give notice to the adult and to family members, and must serve the Public Guardian and Trustee. Under section 9 of the Act, an adult who is still capable can nominate in writing the person they would want as committee, and the court gives real weight to that choice if a nomination exists. Where the adult set out no preference, the court weighs who is closest to the situation, who is trusted, and whether any conflict of interest, financial or otherwise, should rule a candidate out.

The Public Guardian and Trustee reviews every application and prepares a report for the court on the suitability of the proposed committee and the plan for managing the adult’s estate and care. That report matters: a proposed committee whose plan is thin, or who carries a conflict, can expect the PGT to say so. The court can also require the committee to post security, in effect a bond protecting the estate against mismanagement, and can order the committee to file an inventory of the estate and to pass accounts periodically so that spending is reviewed. The PGT keeps oversight for the life of the appointment and can compel an accounting at any time. These are the guardrails that make committeeship workable, and they are also part of why it is slower and costlier than the alternative below.

Why an enduring power of attorney is the better route

Committeeship exists as a backstop, not a first choice. Two documents, signed while a person still has capacity, usually make the whole court process unnecessary. An enduring power of attorney, made under the Power of Attorney Act, lets you name who manages your finances and legal affairs if you lose capacity, and it keeps working after that loss because it is “enduring.” A representation agreement, made under the Representation Agreement Act, does the same job for health and personal care decisions. Put both in place and you have chosen your own substitute decision-makers, on your own terms, without a judge, medical affidavits, a PGT report, or the delay and expense that come with them. The practical lesson is simple: the cheapest committeeship application is the one your planning made unnecessary.

Vancouver Committeeship Application Lawyers

 An experienced estate planning lawyer can generally help you avoid the complex process involved in a Committeeship application, by ensuring that you have your Will, Power of Attorney, and/or Representation Agreement in place. If you’re unsure if you need a Committeeship order, we can help you understand your and your loved ones legal options, and guide you through the next steps. Contact our team to organize  a consultation today.