STARTING WITH THE PRESUMPTION OF CAPACITY
In BC, adults are presumed to be capable of making their own decisions and managing their own affairs.
A capable adult may appoint another person to make decisions for them, by enduring power of attorney or representation agreement, in the event that the adult loses capacity. If an adult loses capacity and has not made an earlier appointment of authority, it may be necessary for an interested person to seek an appointment as the adult’s “committee”.
WHAT IS A COMMITTEE?
A committee has almost all the same rights, privileges, and powers with regard to their affairs as the adult would have if capable, and must exercise those powers for the benefit of the adult and the adult’s family. This may include attending to the adult’s banking, instructing lawyers, or arranging for the provision of health care services.
A committee is appointed by a judge or master in the BC Supreme Court pursuant to BC’s Patients Property Act. The court must first declare a person a “patient”. This requires the evidence of two medical practitioners stating that the adult is, by reason of mental infirmity arising from age, disease, or otherwise, incapable of managing themselves or their affairs.
Once a person is declared a patient, the court must be persuaded that the applicant is the appropriate person to make decisions on the adult’s behalf. The court’s paramount concern is whether appointing the applicant is in the best interests of the patient. Some factors the court may consider include the ability of an applicant to advocate for the patient, to provide them with love and support, and to deal with their financial affairs. The patient’s express wishes while capable, if any, will also be considered.
Committeeship applications are not recommended as an alternative to advance planning. Legal bills can create a significant expense for the estate of an incapable adult, cutting into funds which would otherwise be available to maintain the adult’s standard of living. Proceedings can take months, or even years to be heard in court, and documents filed in court are on the public record. When the matter is put before the court, the adult loses control over who is appointed.
The negative aspects of a committeeship application are exacerbated when there is a dispute as to who is the most appropriate person for the appointment. In the event of family conflict, or if there is concern that the appointment of a family member will not be in the patient’s best interests, the Public Guardian and Trustee may be appointed committee.