A proper estate plan should include planning for incapacity, generally in the form of a Power of Attorney and a Health Care Representation Agreement. However, where these instruments are not in place and an individual is or becomes incapable of managing their affairs, the Patients Property Act provides a framework wherein the BC Supreme Court may appoint a person or institution (called a “committee”) to make decisions on behalf of the incapable person. The order issued is referred to as a committeeship order.

Committeeship orders can be in respect of a person or a person’s estate. A committee of the estate will be authorized to make financial and legal decisions on behalf of the patient, whereas a committee of the person will be able to make personal and medical decisions for the patient. In most cases, the order should cover both.

In terms of who is entitled to apply for a committeeship order, any person may be appointed. Generally this will be a friend or family member of the incapable person or a trust company. Once appointed, the committee will be able to do almost everything that the incapable person could have done on their own behalf in relation to their property and finances and personal and health care decision making, subject to a few restrictions. Importantly, each and every exercise of power must be made in the best interests of the incapable person.

Whoever is appointed as committee will need to work with the Public Guardian and Trustee, an entity in BC tasked with monitoring private committees and protecting the legal, financial, personal and health care interests of adults who require assistance in decision making. In cases where no private committee is willing to act, the PGT may also act as committee.

Before an application can be made, the threshold issue to be dealt with is whether or not the individual in question is in fact incapable. Every adult is presumed capable until proven otherwise. Although capacity is in itself a legal concept, such a finding is assessed and determined based on medical evidence. Each application requires at least two affidavits from medical practitioners confirming their opinions as to the incapability of the adult in question.

Although costly, time-consuming and best to be avoided, a committeeship application may be your only option if a loved one has become incapable and needs help managing their affairs.

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This article is intended for information purposes only and should not be taken as the provision of legal advice. Grace C. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or grace@clevelanddoan.com.