Committeeship in British Columbia: What Families Need to Know

When a person becomes incapable of managing their financial affairs, personal/health care decisions, or both, families are often left wondering what legal options are available.

This article provides a practical overview of committeeships in BC, including:

1. when a committeeship may be necessary
2. how the application process works
3. who may be appointed to act as committee

What is a Committeeship?

A committeeship is a court process under the Patients Property Act (the “PPA“) where a person(s) is appointed as a decision maker on behalf of an adult (so this is not a tool in respect of children) who is unable to manage their affairs.

The PPA refers to the individual who is incapable as the “patient”. That term does not necessarily mean the person is hospitalized or receiving medical treatment.  For the purposes of this article, the individual in respect of whom committeeship is being is considered is referred to as the “patient”.

What Types of Committeeship Can be Granted?

Depending on the patient’s circumstances, the Court may appoint a committee to manage financial matters, personal and health care decisions, or both.

A committee may be appointed as:

1. committee of “estate”, to manage financial affairs and property;
2. committee of “person”, to make personal and health-related decisions; or
3. committee of estate and person, to perform both roles.

When is a Committeeship Needed?

A committeeship is generally viewed as a measure of last resort. Under the PPA, this may occur where a person is incapable of managing themselves or their affairs due to a mental infirmity arising from disease, age, or other causes, or due to a disorder or disability of the mind arising from the use of drugs.

Committeeship is often considered where:

1. An adult does not have other planning arrangements in place, such as an enduring power of attorney or representation agreement. Most commonly, this is due to:
   • An absence of planning; or
   • A child who lacks legal capacity becoming an adult. On becoming an adult, parents cease to be able to assist with the same legal standing as while their child was a minor.

OR

2. There were such documents in place but:
   • All the named decision makers are unable or unwilling to act; or
   • There is a legitimate concern about the ability and/or willingness of those decision makers to carry out their duties in the best interest of the person who appointed them.

How Do You Apply for a Committeeship in BC? 

A committeeship application has different mechanics depending on whether the patient has already “nominated” a committee.

General Process

A family member or another interested person may apply to the Supreme Court of British Columbia for an order declaring that an adult is incapable of managing their affairs or person.

While every case is different, committeeship applications generally require the Court to receive notice to interested parties, medical evidence regarding the patient’s capacity, and information about the patient’s circumstances and affairs. The process typically includes:

1. Notice to Interested Parties: The proposed patient, the Public Guardian and Trustee, and often close family members must receive notice of the time and place of the application.

The Public Guardian and Trustee is a provincial body whose mandate includes protecting the interests of individuals under a legal disability.If a committee has previously been appointed for the patient, notice of the application must also be sent to the existing committee.

2. Medical Evidence: The court requires evidence from two doctors who are registered and in good standing with the College of Physicians and Surgeons of British Columbia addressing the patient’s capacity. The general practice is that the reports be prepared within six months of the hearing so that the court has recent, relevant evidence.

Given the significant consequences to the patient of a determination that a committeeship is suitable (i.e., the loss of the ability to make decisions about their person and/or assets), these are critical documents and at least one of the doctors is often a specialist.

3. Information About the Patient: An affidavit of “kindred and fortune” must be filed that inventories:
   • the family of the patient; and
   • the assets of the patient.

Nomination of Committee

While capable, a person (the one who becomes the patient in the future) may prepare a “Nomination of Committee” whereby they state whom they would like to have appointed as committee in the event committeeship is pursued.

In those circumstances, the Court is presented with the Nomination and, assuming it was validly prepared and signed, the Court must appoint the nominated individual as committee unless there is good and sufficient reason not to do so.

Who Can Be Appointed as a Committee?

The Court’s primary consideration is the best interests of the patient. While there is no fixed test, the Court identified non-exhaustive factors commonly considered in committeeship applications in 2014 [1], including:

1. whether the proposed appointment reflects the wishes expressed by the patient while they were capable of forming such wishes;
2. whether immediate family members are in agreement regarding the appointment;
3. whether there are conflicts among family members, or between the patient and family members, and whether the proposed committee is likely to consult with family members regarding the patient’s care;
4. the extent of the proposed committee’s previous involvement in the patient’s life, with family members often being preferred;
5. the proposed committee’s understanding of the patient’s present circumstances and ability to respond to future changes in the patient’s condition;
6. whether the proposed committee will provide care, support, and advocacy for the patient;
7. whether the proposed committee is best suited to manage the patient’s financial affairs and ensure that the patient’s income and assets are used for their benefit;
8. whether the proposed committee has previously breached a fiduciary duty owed to the patient or engaged in conduct that raises concerns about their ability to properly manage the patient’s affairs;
9. who is best able to advocate for the patient’s medical and personal care needs;
10. whether the proposed committee has an appropriate plan for managing the patient’s affairs and caring for the patient; and
11. whether it would be in the patient’s best interests for responsibility for the patient’s estate and person to be divided between different individuals.

In many cases, a spouse, adult child, sibling, or other close family member is appointed. However, the Court will assess each application on its own facts and will appoint the person or persons best able to act in the patient’s interests.

What Happens After a Committee is Appointed?

Being appointed as a committee carries significant responsibilities. A committee acts in a fiduciary capacity and must manage the patient’s affairs honestly, carefully, and for the patient’s benefit. Depending on the order granted by the court, a committee may be responsible for:

1. managing bank accounts;
2. paying bills and taxes;
3. maintaining or selling property;
4. managing investments;
5. arranging care and support services; and
6. making decisions regarding the patient’s welfare.

Committeeships Involving Individuals Outside BC

Committeeship matters can raise additional considerations when a patient lives outside BC.

Patients Living Elsewhere in Canada with BC property

Under section 31 of the PPA, where:

1. the patient resides in another province (including, the Northwest Territories, Yukon and Nunavut),
2. the patient owns property in BC,
3. the patient would qualify as a “patient” under the PPA if they were resident in BC, and
4. a committee (or equivalent) has been appointed for the patient in the non-BC province,

there is an abridged process whereby the existing committee (or equivalent) in that other province may apply to be appointed as committee of the patient’s estate in BC, and the full committeeship process is not necessary.

Patients Living Outside Canada with BC Property

Additional challenges may arise when a patient lives outside Canada. While BC legislation does not contain a comprehensive process for recognizing foreign guardianship or committeeship orders, BC courts have found ways to address these situations where necessary.

Key Takeaways

1. A committeeship is a court process used to appoint a manager for an adult’s care and/or assets, usually where there is no existing document conferring this authority.
2. In BC, committeeship applications are governed by the Patients Property Act.
3. Medical evidence is required to establish incapacity.
4. The court’s primary concern is the patient’s best interests.
5. Family members are often appointed as committees, but appointments are determined on a case-by-case basis.
6. There are special mechanisms to assist with BC assets where existing committees (or equivalents) have been appointed in other jurisdictions.

Final Thoughts

Whether a committeeship is suitable will depend on an individual’s circumstances and the available alternatives. If you have questions about committeeship, concerns about the capacity of a family member, or would like guidance regarding your options, a member of Boughton Law’s Estate Litigation team would be happy to assist.

Proactive planning can often prevent a committeeship and provide individuals much greater autonomy over their future care and assets management, such as powers of attorney, representation agreements, and nominations of committee.  To discuss these, Boughton Law’s Estate Planning team is available.

This article is provided for general informational purposes only and does not constitute legal advice. Readers should not rely on it as a substitute for legal advice regarding their specific circumstances.