An application to the BC Supreme Court is necessary for a person to become the guardian or “committee” of an incapable adult. The court application for committeeship can be relatively straightforward where there is no dispute among loved ones. If there is disagreement on who should be appointed committee, the matter becomes more complicated. Legal costs associated with competing applications for committeeship can add up fast. Who pays the legal costs to resolve the dispute, and how much?
General rule respecting legal cost of committeeship proceedings
In BC, committeeship is governed by the Patients Property Act, R.S.B.C. 1996, c. 349 [“PPA”]. Section 27 of the PPA states that costs of committeeship proceedings are in the discretion of the court. In Vieira (Re), 2013 BCCA 420, the BC Court of Appeal discussed the issue as follows (emphasis added):
[17] In applications for committeeship, it appears that the usual practice of the Supreme Court is to award the successful applicant costs from the estate. This is a sensible position where the application is brought in good faith and where the applicant receives no obvious benefit from the appointment of a committee. Where a committee is appointed, it is because the court has concluded that it is in the best interests of the patient. A party who has brought an application that is found to be in the best interests of the patient, and with no ulterior motive, should be reimbursed for their costs in doing so.
So, according to the general rule, where parties contest the issue of committeeship in good faith and for no obvious benefit to themselves, the parties costs should come out of the patient’s estate.
Wide discretion to depart from the general rule
The usual practice is that the successful applicant is granted an order for special costs https://onyxlaw.ca/who-pays-the-legal-costs-of-a-committeeship-application/ from the patient’s estate, but there is wide discretion to depart from that. If, for example, there are concerns about the motives of the applicant, the applicant’s conduct of the application, or the ability of the patient’s estate to bear an order for costs, a different order might be called for. Concerns about depleting the patient’s estate were front and centre in, Seifred v. Arnold, 2021 BCSC 278. https://www.bccourts.ca/jdb-txt/sc/21/02/2021BCSC0278.htm In that case, there was no dispute that the parties’ 91-year-old mother Grace was incapable of managing herself or her affairs. Grace had been diagnosed with dementia and both of her doctors were of the opinion that her cognitive abilities had deteriorated to the point that she was no longer able to manage her financial affairs or make personal care decisions. Her condition was expected to deteriorate. The problem was that the parties disagreed as to which of them should be appointed committee. This required a determination as to what was in Grace’s best interests.
Costs of contested committeeship applications
The competing court applications took over four years to resolve. Three of Grace’s four children were parties to the court proceedings, each represented by their own lawyer. Grace was also represented by a lawyer for the proceedings, as was her right. The court made a declaration that Grace was no longer capable of managing her person or her affairs and ultimately determined that her son Daryl should be appointed as committee. Even though the court did not appoint the other siblings as committees, the court accepted that they were motivated in pursuing the petition to seek the best outcome for their mother, albeit from their own perspectives. In other words, while they were not successful parties in the usual sense, the other siblings were bona fides in their motivation and participated in the proceedings seeking the best interests of her mother. As such, all parties were entitled to recover legal costs from their mother’s estate.
Concerns about what the patient’s estate should have to bear
Given the number of counsel, the number of parties, and the detail and level of commitment everybody gave to the proceeding, the court had serious concerns that the estate would be unacceptably depleted by an order for special costs in accordance with the usual practice. Grace’s estate was modest, largely consisting of the proceeds of her home which had sold for approximately $1,000,000. Estimated legal costs of the committeeship proceedings amounted to more than $500,000 – close to half of Grace’s entire estate. Grace’s dementia was progressively worsening, and she was going to need complex care. It was clear to the court that she was entitled to have the best care she could afford and that she was entitled to rely upon her assets in order to provide that to her. A special costs award from her assets in favour of her children would impinge on her ability to have the care she would need and for her committee to make decisions in her best interests. As such, the court exercised its discretion to depart from the usual rule. This was not a matter where special costs ought to be awarded. In reasons for judgment indexed at 2021 BCSC 1418 the court ordered costs at the tariff level to each of the three children, at Scale 3 given the unusual complexity of the case. Grace’s own legal expenses were not ordered as costs against her from her own estate, but rather as legal fees recoverable by her lawyers under the Legal Profession Act, S.B.C. 1998, c. 9, to be determined through an ordinary taxation of lawyer’s fees.
Take home point on costs of contested committeeship proceedings
The usual practice is that the successful applicant on a committeeship application is granted an order for special costs to be paid from the patient’s estate, but there is a wide discretion to depart from that practice. A different order or type of costs might be called for if there are concerns about the motives of an applicant, an applicant’s conduct in the proceedings, or the ability of the patient’s estate to bear an order for costs.
