“Committeeship” is the legal term we use in British Columbia when the court appoints a guardian to make decisions for an adult who cannot manage himself or his finances. In other places this is called—logically enough—“guardianships.” In some places the term is “conservatorship.”
Whatever term is used, if someone through illness or accident is unable to make their own decisions, it may be necessary for another to make decisions for them. In British Columbia if a family member or friend is mentally incapable of making decisions, then you can apply to the Supreme Court of British Columbia for an order appointing you as that person’s committee.
The requirements are set out in the Patients Property Act, which unfortunately is somewhat dated (thus the words “committee” and “committeeship”). You apply to court by a petition supported by affidavit evidence, including the affidavits of two medical practitioners stating their opinions that the person (referred to in the Act as the “patient”) is incapable of managing himself or his affairs. You also need to set out the person’s next of kin and financial circumstances in an affidavit for the court.
You usually need to serve the person with the petition and the affidavits before the application is heard. This gives him the opportunity to contest the applications. If there is evidence that serving him with the petition will be injurious to his health, you can apply to court to dispense with the requirement that you serve the person.
You also need to provide the Public Guardian and Trustee of British Columbia notice of the application and copies of the petition and supporting affidavits. The office of the Public Guardian and Trustee will then provide you and the court with a letter setting out its position on the application.
The Patients Property Act does not say who else you need to serve before the court hears your application. It says that the court may direct you to give notice to others. In practice, you should either obtain consents to your appointment as committee from anyone who is a close family member of the person, or arrange for them to serve them with the petition and affidavits. For example, if you are applying to be appointed committee of your mother, and she has a spouse, and two other children, you may ask them for consents to your appointment, or if they won’t consent, serve them with the application.
If the person had signed a nomination of committee when they had capacity to do so and which met the formal requirements for making a valid will in B.C., the court must appoint the nominee if the nominee is willing to act unless there is good and sufficient reason to refuse to appoint the nominee.
If the Supreme Court Judge or Master hearing the application is satisfied that the person is incapable of managing himself and his affairs, and that you are the appropriate person to be appointed committee, the court will grant an order declaring that the person is incapable of managing himself and his affairs, and appointing you as committee of his person and his estate.
I should note that it is possible to be appointed as committee of the person only (which gives the committee authority over health care and personal decisions) or of the estate only (which gives the person authority over property and finances). Often the same person is appointed as committee for both, but sometimes these functions are separated with different people appointed for each.
In some cases you may be required to arrange to be bonded before you can act as committee of the person’s estate. Often the Public Guardian and Trustee will suggest that instead of a bond, restrictions be placed on your handling of real estate and investments. For example, the court order could provide that you cannot spend the person’s capital without the consent of the Public Guardian and Trustee or of the court. You could use the patient’s income for the patient, and keep the capital invested.
After you have been appointed a committee, you must keep complete records of your handling of the person’s finances, and you will be required from time to time to provide the office of the Public Guardian and Trustee with your accounts. Keep all receipts and other records.
Is it always necessary for a committeeship when someone becomes incapable of managing their affairs? No. This process can often be avoided by advance planning. If the person made an enduring power of attorney while he or she was capable, the named attorney may use the power of attorney to look after the person’s property and finances (subject to any restrictions in the power of attorney document). Similarly, if the person made a representation agreement, the representative may make health care and personal care decisions for the person who is now incapable of making his own decisions.
I often get telephone calls from people who say something to the effect of “my mother’s doctor says I need power of attorney over her.” In some cases, the mother may still have sufficient mental capacity to make a power of attorney. But more often than not, by the time her physician says that another family member needs one, it is too late for her to make one. In those circumstances, a committeeship is necessary.
Finally, I should note that new legislation, Adult Guardianship and Planning Statutes Amendment Act, 2007 has been passed by the British Columbia Legislative Assembly to repeal the Patients Property Act and replace it with new legislation. Unfortunately, the government has not brought the new legislation into effect, and I don’t know when, if ever, it will be implemented. If it is, “committees” will be replaced with “adult guardians,” and “committeeships” with “adult guardianships.”
More on Key Wealth Management Trends for 2015
22 hours ago