When is Committeeship Necessary?
In British Columbia, you can select the person you would prefer to take care of your affairs in the event that you are incapacitated. This type of estate planning is done by signing a Power of Attorney and a Representation Agreement. Whereas a Power of Attorney covers financial and legal decisions, a Representation Agreement concerns the personal and medical aspects of your life. Both documents are relatively simple and inexpensive to prepare, yet provide certainty as to which person will have conduct of the major decisions impacting your life in the event that you can no longer make these decisions yourself.
However, not every person manages to sign a Power of Attorney or Representation Agreement prior to suffering a loss of capacity. In these circumstances, who gets to make the fundamental decisions about your life and your affairs?
The answer is a form of legal guardianship called ‘committeeship’. In British Columbia, the Patients Property Act provides family members or friends of an incapacitated person an avenue to become that person’s legal guardian. The legal guardian, called a ‘committee’, is appointed by the Supreme Court of British Columbia. Generally speaking, once appointed, the committee has all the rights, privileges and powers that the incapacitated person had in relation to their person and estate when they were fully healthy.
Given the wide scope of these powers, and the position of significant trust that a committee holds, a committee is held to a high standard to act only in the best interests of the person he or she represents. The committee must also keep careful records of all transactions he or she engages in while acting as committee. These records are submitted for review by the Public Guardian and Trustee, a public body whose mandate is to protect the interests of British Columbians who lack capacity.
In order to be granted the authority to act as committee, a person must apply to the Supreme Court of British Columbia. The applicant must provide the affidavits of two medical practitioners confirming that the person is indeed incapable of making certain decisions due to “mental infirmity arising from disease, age or otherwise” or “disorder or disability of mind arising from the use of drugs”.
The applicant must also convince the Court that he or she is the right person to look after the incapacitated person’s affairs. Typically, the court prefers that a close family member, such as a spouse or child, be appointed as committee. However, the Court will ultimately be guided by the best interests of the incapacitated person and select the person most able to meet his or her needs.
The close family members of the incapacitated person must be informed and provided a copy of the application for committeeship submitted to the Court. Those family members have the option to support the applicant, but they could instead propose that they themselves should be appointed as committee. In the best-case scenario, the family members will unite behind and support the application of one particular committee. However, a committeeship application may devolve into complex and expensive litigation if family members cannot agree as to the most appropriate person to act as committee.
Fortunately for committees, it is standard practice for the Court to reimburse the majority of the applicant’s legal fees from the estate of the incapacitated person. The Court will typically make such an order unless it determines that the application was brought for an ulterior motive or the applicant engaged in some form of misconduct in the course of the legal proceedings. As long as the Court believes that the applicant was truly motivated by the best interests of the incapacitated person, it may order the reimbursement of legal fees even if the Court declines to make an order for committeeship.
The Bottom Line
It is fortunate that concerned family or friends of a person who is suffering from dementia or a debilitating disease have a remedy in the form of committeeship. Nevertheless, committeeship is far from ideal. In the interest of saving considerable costs and avoiding uncertainty as to who will ultimately make decisions for you, it is far preferable to execute a Power and Attorney and Representation Agreement well in advance of the need for committeeship
CBM Lawyers can help you plan your affairs so that the need for committeeship never arises. For assistance with your estate planning needs, including Power of Attorney and/or Representation Agreement, please contact our Wills, Estates & Trusts Team.
All the same, an order for committeeship may be the only way to fully protect the interests of a loved one. We can help you navigate this situation as well. If you require legal advice regarding an application for committeeship, please contact Scott Payne of our office.