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.
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)
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.
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.
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