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Planning for Incapacity - Your Committee
Power of Attorney
What is a Committee?
Who may apply?
Formalities
Documentation
Uncontested and Contested Applications
Obligations and Remuneration of the Committee
Ending the Appointment of the Committee
Power of Attorney
It is sometimes possible to avoid the necessity of a Committeeship application and the costs associated with it by using an enduring Power of Attorney. You should consult with your lawyer to discuss this matter further. If you have any questions or concerns regarding Committeeships, call your lawyer.
What is a Committee?
A Committee is a person, sometimes the Public Trustee, appointed by Order of the Supreme Court of British Columbia (the "Court") or by the issuing of a certificate of incapacity pursuant to the Mental Health Act which establishes the Public Trustee as Committee.
The rules governing the declaration of incapability and appointment of a Committee for a Patient in British Columbia are found in the legislation known as the Patients Property Act.
Who may apply?
There are no restrictions on who may apply to the Court for a declaration of incapability or the appointment of a Committee. The intended Committee must have the legal capacity to perform his or her duties, (ie. not an infant, not a bankrupt, not mentally incompetent, etc.). The test the Court applies when appointing a Committee is "what is in the best interests of the Patient?". The Courts have held that, all things being equal, a family member should be appointed Committee, the Court will consider and weigh the following factors regarding who should be appointed Committee:
i) involvement with the Patient;
ii) knowledge and understanding of the Patient's situation and needs;
iii) level of expertise or capability of performing the duties of a Committee;
iv) potential for or existence of a conflict of interest (between the interests of the proposed Committee and the interests of the alleged Patient); and
v) plan or scheme, if any, for the management of the affairs or person of the Patient.
It is possible for a person to nominate another person to be his or her Committee. The Court will appoint the nominee unless there is a good and sufficient reason for refusing the appointment.
Formalities
A Petition to the Court, supporting Affidavits and other documents are necessary for a Court application for the appointment of a Committee.
Notice of the application must be served within specific time limits on the Public Trustee and on the intended Patient because it would be injurious to the Patient's health to be served. Although not required by law, as a matter of practice most judges require that notice of the application be given to family members of the Patient, or that consents to the appointment be obtained.
Additionally, most judges require that notice be given to the holder of a Power of Attorney over the Patient's affairs. The Patients Property Act appears to void all Powers of Attorney once a person becomes a Patient. A Committee can take steps to expressly revoke an enduring Power of Attorney.
Documentation
To prepare for the application to Court, the following information is needed:
i) the names and addresses of all the relatives of the Patient;
ii) real and personal property of the Patient;
iii) debts owed by the Patient;
iv) sources of income of the Patient;
v) ongoing expenses normally incurred by the Patient; and
vi) any specific reason for the appointment of a Committee or appointment of a specific person as a Committee.
If the issue of incapacity has not been decided, Affidavits or a Mental Health Act Certificate must be obtained from two doctors about: the length of time the doctor has been treating the Patient; the date of the last examination where the doctor considered the Patient incapable; the Patient's diagnosis and prognosis; the doctor's current opinion as to the Patient's capability; and the doctor's opinion as to whether serving notice of application on the Patient would be injurious to the person's health, and if so, in what way it would be injurious. Normally a lawyer is involved in preparing these documents satisfying all notice and service requirements and attending at the application to the Court.
Uncontested and Contested Applications
An application to appoint a Committee may be uncontested or contested. The Public Trustee usually takes no position on the issues of incapacity or of the proposed Committee, unless there is a glaring problem or potential conflict rendering the Committee a "dangerous" caretaker. The Public Trustee does require that their letter be delivered to Court outlining their position on the application, which often deals with the issue of security for the Patient's estate. The Court can require that the Committee post a bond to protect the Patient's estate from abuse and the Court may impose certain restrictions on the power of the Committee to deal with the Patient's assets or some of them.
If the Patient or another party disputes that the Patient is incapable, the Court may order that the matter be tried at a hearing or make an order for an examination of the Patient. If the alleged Patient refuses an examination, additional evidence may be necessary to show incapability. A person can only be forced to submit to an examination if the person is "acting in a manner likely to endanger his own safety or that of others".
The Court usually orders that the reasonable legal costs incurred by the person involved in a Committeeship application be paid from the Patient's estate.
Obligations and Remuneration of the Committee
The Committee must provide the Public Trustee with an inventory of the Patient's whole estate (Assets, Liabilities, Income and expenses) within six months of the appointment, provide the Public Trustee with a bond if ordered to do so by the Court, and deliver a copy of the Court order to the Public Trustee. The Committee should always keep accurate records of all transactions and must pass his or her accounts (have them approved):
i) before the Public Trustee every two years from the date of appointment;
ii) before the Supreme Court as ordered;
iii) if required to do so by the Public Trustee; and
iv) when there is an application for the rescission or discharge of the Committee.
There are legal requirements regarding the passing of accounts which the Committee must follow.
A Committee may be compensated for services rendered and compensation is to be set on the passing of accounts. The Patients Property Act allows the Public Trustee up to 5% of the gross value of the Patient's estate for services rendered to the Patient.
Ending the Appointment of the Committee
If there is evidence that a Committee is in a conflict of interest with the Patient or has failed to comply with any legal obligations in managing the Patient's affairs, or if the Committee no longer wants to act as such, the Committee may be removed and replaced by a further Court Order. If an application for the removal or replacement of a Committee is successful, the former Committee must pass accounts of his Commiteeship and transfer the estate to the newly appointed Committee.
Any person, including the Patient, can apply to the Court for an Order declaring the Patient is no longer incapable of managing his or her affairs (estate), person or both affairs and person. Again, there are time limits and legal formalities to observe when making this application.
A person ceases to be a Patient within the meaning of the Patients Property Act if the circumstances of discharge are met. However, the Public Trustee retains discretion to continue as Committee upon a Patient's discharge from a mental health facility.
When a person ceases to be a Patient, as defined by the Patients Property Act, the person or the Committee may apply to the Court, on 10 days notice to the Public Trustee, for an Order discharging the Committee. The issue before the Court is similar to the issue in a contested application for appointment of a Committee, that is, to determine whether or not the Patient is capable of managing his or her own estate, person or both.
A Committeeship also ends upon the death of the Patient, when the Patient's estate is then administered under a Will or if there is no Will, pursuant to the applicable provisions of the Estate Administration Act.
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