Dementia, Alzheimer’s disease, and other medical issues can leave a person unable to look after themselves. When that occurs, a “committee” can be appointed by the BC Supreme Court to manage their personal and financial affairs. In determining who should be appointed committee, the paramount consideration for the court is who will serve the incapable person’s best interests. It is not uncommon for family members to disagree on what is in their loved one’s best interests and dispute who should manage their affairs. This can lead to competing committeeship petitions. This post will focus on the factors the Court will consider in determining who should be appointed committee of an incapable adult.
Family members disagree on who should be committee
The BC Supreme Court recently dealt with competing petitions by a brother (Daryl) and sister (Donna), each seeking appointment as committee for their 91-year-old mother (Grace) who was no longer capable of managing her person or her affairs due to dementia. In that case, Seifred v. Arnold, 2021 BCSC 278, the court concluded that it was not in the mother’s best interests for Donna to be named as committee. Daryl was appointed as he established that he could act in his mother’s best interests, both with respect to her mental and physical health, as well as in relation to her estate and finances. The court’s decision to appoint Daryl was made despite the mother’s written nomination of Donna as committee, made a few years prior while she was vulnerable but still of sound mind.
Determining who will serve the patient’s best interests
In BC, guardianship of adults or “committeeship” is governed by the Patients Property Act, R.S.B.C. 1996, c. 349 [“PPA”]. The PPA does not set out specific criteria for the determination of suitability when competing petitioners seek appointment as committee. Instead, the courts have developed a non-exhaustive list of factors for consideration:
- whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;
- whether immediate family members are in agreement with the appointment;
- whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
- the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
- the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
- whether the proposed committee will provide love and support to the patient;
- whether the proposed committee is the best person to deal with financial affairs and ensure the income and estate are used for the patient’s benefit;
- whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
- who is best to advocate for the patient’s medical needs;
- whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and
- whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.
The Court can also consider other inter-related factors such as attempts by the proposed committee to control access to the patient or to isolate other family members; whether the proposed committee resides near the patient; whether the proposed committee is able to provide transportation for the patient, if necessary; whether outside demands on the proposed committee’s time and availability will detract from his or her ability to perform his or her obligations; and whether the proposed committee is able and willing to facilitate any recreation or religious practice in which the patient wishes to participate.
Paramount consideration: Who will serve the patient’s best interests?
The ability to cooperate and consult with other family members is an important factor for the court in appointing a committee. That factor carried significant weight in the Siefred v. Arnold litigation. Here is how the court balanced the factors in deciding to appoint Daryl as committee of his mother, Grace:
- In 2008, Grace had appointed Daryl her power of attorney, alternate health representative (after her husband, who died in 2017), and executor of her will. There was no question of Grace’s competence and capacity when she made those appointments. They indicated a high level of trust in Daryl when she was fully competent. Daryl and Grace both lived in the Lower Mainland and Daryl was very involved with Grace’s care.
- Donna moved Grace to from Langley, BC to Powell River six days after Grace’s husband died in 2017, without consulting with Daryl. Grace had not wanted to move to Powell River. To the contrary, she had expressed a wish to continue to live in the Fraser Valley, where she had lived and raised her family for approximately 60 years, and where most of her family still lived.
- Donna convinced Grace to sell her home at a time when she was particularly vulnerable. This was done in a secretive manner without consultation with Daryl, who had been primarily responsible for coordinating Grace’s care needs and finances for a number of years prior to that date. Donna also claimed compensation for the care of her mother to the date of hearing significantly in excess of what the law would reasonably allow. In light of those past dealings, Donna was not the best person to ensure Grace’s assets and income were used for Grace’s benefit.
- As of 2019, the evidence of Grace’s care professionals was that she was stable, safe and content living with Donna, and that major changes to the living situation of persons with dementia can be traumatic to them. That consideration was tempered by the fact that it was precisely such a precipitous move that was the origin of the current conflict in the family, and that the 2017 move to Powell River deprived Grace of the love, care and support of her other children. The Court may have been prepared to overlook Donna’s role in that move, including the unilateral and non-consultative manner in which it was done, had it been satisfied that Donna was now capable of overcoming this conflict and had found ways to facilitate contact and communication between Grace and the rest of the family.
- Isolation was not in Grace’s best interests. It is in Grace’s best interests that her committee be able to communicate with the rest of her family, facilitate their involvement in her life, and be able to resolve conflicts between her family members regarding her care. Daryl showed greater ability to communicate in circumstances of conflict and estrangement. Daryl consistently reached out to other family members to include them in Grace’s life. The evidence established isolation, and possibly alienation on Donna’s part. She refused to cooperate or communicate with her family members about Grace’s care and well-being. Donna showed ongoing and persistent inability to communicate with her siblings or to facilitate Grace’s access to her other children.
- Grace’s cognitive decline had progressed and was expected to continue to progress. Overall, Donna’s extended care plan to keep Grace at home with her in Powell River and then in publicly funded long-term care was not in Grace’s best interests. This was not simply because Grace could afford better, but more significantly because it would limit who would be able to visit her regularly to Donna and her husband, the only family members living in the Powell River area. Daryl’s care plan would achieve this important goal by relocating Grace back to the Fraser Valley in a high-quality private care facility where she would have specialized dementia care, and where all her children and grandchildren would be able to visit.
Ultimately, it was in Grace’s best interests to have a care plan that removed family conflict and removed Donna’s control over her ability to spend time with the rest of her family. The relationship between Donna and her other siblings was so wholly damaged that Donna could not see beyond it to provide for the best interests of her mother. Of note is that the appointment of Daryl as committee was made subject to the several agreed upon conditions recommended by the PGT, including that the balance of the proceeds from the sale of Grace’s home be invested, and that Daryl have no access to the capital of the investment account without the prior written consent of the PGT or further Order of the Court.
Take home point on competing committeeship petitions
In BC, the paramount consideration is who will serve the incapable person’s best interests. The inquiry is fact specific, and the relevance and weight of the factors will depend on the circumstances in any given case. A committee who demonstrates a willingness and ability to include the patient’s other family members in her life will be preferred over one who does not.