When an individual has not planned for mental incapacity by preparing an enduring power of attorney instrument, representation agreement and/or advance directive, a committee application is typically required.
A committee is a person or institution appointed by the court to make personal, medical, legal and/or financial decisions for an adult person who is mentally incapable and cannot make those decisions. There are two types of committees: (1) a committee of the estate is able to make financial and legal decisions on behalf of the person, and (2) a committee of the person is able to make personal and medical decisions for the person.
The Patients Property Act, RSBC 1996, c 439, is the governing statute for committeeships. It provides that, on evidence from two medical practitioners that a person is incapable of managing his or her affairs or person, the court has the power to declare that person incapable and appoint a committee to act on his or her behalf.
In the recent case of Kirkwood (Re), 2016 BCSC 673, Master Keighley reviewed the test for appointing a committee and applied the 11 considerations for the court when resolving a contested application for committeeship as established in Stewart (Re), 2014 BCSC 2321:
- whether the appointment reflects the patient’s wishes as of the time when he or she was capable of forming such a wish;
- whether immediate family members are in agreement with the appointment;
- whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
- the level of previous involvement of the proposed committee with the patient (usually family members are preferred);
- the level of understanding of the proposed committee with the patient’s current situation, and the ability of the proposed committee to cope with future changes of the patient;
- whether the proposed committee will provide love and support to the patient;
- whether the proposed committee is the best person to deal with financial affairs and ensure the income and estate are used for the patient’s benefit;
- whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
- who is best to advocate for the patient’s medical needs;
- whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and
- whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient.
For more information on committeeships and estate planning, contact one of the lawyers in our Wills, Estates + Trusts Practice Group.