Family disputes can be significantly exacerbated by the heavy weight of dealing with an ailing parent. Family members can become mired in conflict over whether a loved one lacks capacity because of mental infirmity and if so, who should handle their personal, financial, and legal affairs. In a recent post, our Vancouver litigation team discussed mental incapacity, the nature of committeeship, and the procedure for committee application hearings in BC. In today’s post, we will examine the facts and outcome in Cameron (Re), 2020 BCSC 157, a BC court decision involving a contested application for committeeship that arose from an unfortunate conflict between two sisters over the care of their 84-year-old mother who was suffering from dementia.
Vancouver litigation rooted in deep family conflict
In 2015, Margaret Cameron was diagnosed with posterior cortical atrophy, a subtype of Alzheimer’s disease, which left her functionally blind and caused her to experience progressively worsening dementia. Difficulties included confusion, hallucination, and difficulty recognizing relatives. In 2016, Mrs. Cameron executed both a Power of Attorney and an “Enhanced Representation Agreement for Health Care” in favour of both of her two daughters, Leigh-Anne and Alison. Mrs. Cameron’s condition soon deteriorated to the point where she could no longer safely remain in a retirement living facility. Over the ensuing months, Leigh-Anne became primarily responsible for assisting with Mrs. Cameron’s care. She was also the sister primarily responsible for assisting with Mrs. Cameron’s financial affairs.
Siblings disagree on their mother’s care and finances
Due to deep rooted conflict and strong mutual distrust, Leigh-Anne and Alison were unable to agree on almost anything to do with their mother’s care. As the representation agreement provided no practical means for the resolution of disagreement between the two daughters, the provision for full separate authority became a recipe for conflict. The sisters researched housing options in BC (where Alison lived) and in Mexico (where Leigh-Anne owed property). Mrs. Cameron was ultimately moved to Leigh-Anne’s property in Mexico, and by all accounts she was well-cared for by Leigh-Anne and full-time caregivers. Throughout this process, Alison became estranged from her mother and had little contact with her. In 2018, a lawyer prepared documents (evidently on Leigh-Anne’s instructions), then met with both Leigh-Anne and Mrs. Cameron on June 1, 2018. The lawyer took Mrs. Cameron’s instructions at that time (in Leigh-Anne’s presence) and witnessed Mrs. Cameron’s execution of a new power of attorney in favour of Leigh-Anne, together with a revocation of the existing one naming Alison and Leigh-Anne.
Contested application for declaration that mother is incapable
Alison applied for a declaration under section 3 of the Patients Property Act, R.S.B.C. 1996 c. 349 (“PPA”) that her mother was incapable of managing herself and her affairs because of mental infirmity arising from disease, age or otherwise. Alison further applied under section 6 of the PPA for an order appointing her committee of Mrs. Cameron’s person and estate, or alternatively, appointing an independent party as committee of Mrs. Cameron’s estate, which was substantial (Mrs. Cameron was predeceased by her husband, who left the family well-off financially). Leigh-Anne did not accept that their mother was incapable of managing herself and her affairs and opposed the appointment of Alison as committee. Alternatively, if the court declared Mrs. Cameron to be incapable, Leigh-Anne sought an order appointing her as committee. The Public Guardian and Trustee (“PGT”) provided written submissions, taking the position that the medical evidence supported a declaration under the PPA that Margaret was incapable of managing her person or her affairs, but the PGT was not in a position to opine on which of the sisters should be appointed committee.
The question of capacity
On the issue of capacity, Alison filed affidavits from two treating medical practitioners: Dr. Hocking, Mrs. Cameron’s family physician since June 2016; and Dr. Nygaard, a specialist in neurology who treated Mrs. Cameron from 2015 through 2018. Both opined that due to the disease from which she suffered, Mrs. Cameron was incapable of managing herself or her affairs. As the specialist put it, there was no cure or effective treatment and the disease “inevitably leads to a progressively worsening dementia.” All aspects of her cognitive function, including memory, comprehension, and overall decision-making were affected. Leigh-Anne filed evidence from various people suggesting that Mrs. Cameron was not quite so incapable, as well as evidence from a psychiatrist in British Columbia who did not examine Mrs. Cameron but offered a critique of the opinions of those who did. The fact remained that it was not up to Leigh-Anne or Mrs. Cameron to prove that Mrs. Cameron had capacity; rather, the onus was on Alison to satisfy the court that she did not. Mr. Justice Grauer found that the evidence filed supported, and indeed required, a declaration that Mrs. Cameron was incapable of managing her person or her affairs by reason of mental infirmity arising from disease.
The question of who should be appointed committee
On the question of committeeship, however, Mr. Justice Grauer found that triable issues arose which made the question of committeeship unsuitable for determination by petition. A significant issue was whether Mrs. Cameron was of “sound and disposing mind” within the meaning of the PPA when she signed the 2018 document nominating Leigh-Anne to be committee of her person and estate. If so, then, by section 9 of the PPA, Leigh-Anne must be appointed Mrs. Cameron’s committee in the absence of good and sufficient reason for refusing to do so. There were potentially good and sufficient reasons to refuse to appoint either sister. For example, Leigh-Anne’s transparency in relation to financial matters was called into question. Alison argued that it would not be in Mrs. Cameron’s best interests for Leigh-Anne to be appointed committee. Leigh-Anne made the same argument, on different grounds, about Alison. The paramount consideration in appointing a committee is the best interests of the incapable person. Accordingly, Mr. Justice Grauer directed that the matter of who should be appointed Mrs. Cameron’s committee be converted into an action and remitted to the trial list. In the meantime, Mr. Justice Grauer ordered that the PGT act as committee of both Mrs. Cameron’s person and estate by operation of section 6(3) of the PPA, pending further court order.
Take home point on incapacity and committeeship in Vancouver litigation
If the court is satisfied as to a person’s incapacity upon hearing the application and reading the affidavits of two physicians, then the court must make an order declaring that the person who is the subject of the application is incapable of managing himself or herself, his or her affairs, or both. BC law presumes an adult to be of full capacity, and as such the onus is on the person who applies under the PPA to establish otherwise. Check back to our Vancouver estate and family litigation team’s blog for an upcoming series of posts on the issue of who pays the parties’ costs on an application for committeeship.