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.