Protecting The Vulnerable: Committeeship In BC
A Committee (pronounced Caw-mi-tee) is a person, trust company, or the Public Guardian and Trustee (“PGT”) who is appointed by the Supreme Court of BC to act as a Guardian and to make decisions for an adult who cannot manage themselves or their finances.
You or a family member may need to have a Committee appointed if a vulnerable adult needs protection because they are no longer capable of managing themselves and/or their affairs.
The adult’s vulnerability may stem from the gradual onset of a condition, like dementia, or suddenly, such as the result of an accident or stroke.
One of the more common scenarios where a Committee is appointed in the Okanagan is in the case of an elderly person who suffers from dementia and/or Alzheimer’s. With an aging population, it is predicted that the rate of dementia in Canada will increase significantly.
According to the Alzheimer’s Society of Canada, there were 747,000 Canadians living with Alzheimer’s Disease and other dementias in 2011, or 14.9 per cent of Canadians 65 years and older. Those numbers are expected to increase to 1.4 million by 2031. In BC there are currently 70,000 suffering from some form of dementia.
The Patients Property Act is the governing legislation controlling the process for the Court‐appointment of a Committee for an incapable adult. There are two types of Committees:
Committee of the estate: makes financial and legal decisions for someone who is not mentally capable. A family member or close friend, a trust company, or the PGT can fill this role. A Committee of the estate can be appointed by the Court.
Committee of the person: makes personal care and medical decisions for someone who is not mentally capable, including decisions about where the person will live. Usually a family member or close friend will do this. Rarely, the PGT will agree to be Committee of the person. Only the Court can appoint a Committee of the person.
Once a person is appointed Committee of the vulnerable adult, he or she will be granted the ability to make decisions regarding the vulnerable adult’s person (health care, residence), the adult’s estate (financial decisions), or both, depending on the adult’s limitations and what is granted by the Court.
In order to have a Committee appointed, an application must be made in Court requesting the appointment. The application must include two doctors’ opinions that indicate that the adult cannot manage his or her affairs or self. Also included in the application is an Affidavit sworn by the applicant which will list the adult’s age, next of kin, where they live, and the size and composition of their estate, including any debts, liabilities and any outstanding legal actions.
In some circumstances, the person who is applying to be the Committee may need to post a security bond to protect the adult’s assets. This is usually recommended by the PGT if the adult has significant assets or if the adult’s family situation warrants it. If there is a chance that a bond will be required, the person applying to be a Committee should make sure they qualify for a bond through an insurer and offer that information in their Affidavit. A bond is not usually required if the Committee is a spouse or child of the adult or if there are multiple Committees appointed.
When reviewing an application, a Court must always start with the presumption that the adult is capable. Generally, until proven otherwise, an adult person is presumed to be competent to make decisions for himself or herself.
A declaration of incapacity as to person and estate requires that the Court be satisfied on the balance of probabilities that an adult is incapable of managing himself or his affairs based on the medical evidence presented in Court. In cases where medical evidence is insufficient, the Court may dismiss the application or adjourn it to allow for further examinations.
In appointing a Committee, the overriding concern of the Court is what is in the best interest of the adult.
The authority of a Committee is broad and responsibilities can include:
- handling the person’s property;
- dealing with the person’s banking needs;
- paying the person’s expenses and dealing with income tax issues;
- dealing with any lawsuits involving the person;
- selling the person’s personal property and real estate;
- applying for the person’s pension and other benefits;
- making medical decisions for the person; and
- deciding where and how the person should live.
Appointing a Committee is a very serious undertaking as it takes the adult’s personal freedoms away and gives another person incredible power over the adult’s life.
To find out more about Committee and Estate Litigation contact Silvano Todesco at 250-979-2530.