In British Columbia, the Patients Property Act, R.S.B.C. 1996, c. 349 (the “PPA”) sets out the legislative framework and authority for an individual to apply for the right to manage an incapable person’s personal and financial affairs. Section 6 of the PPA provides that the court may appoint a committee or rescind the appointment of a person appointed as committee. The PPA does not, however, prescribe any criteria for the selection of an appropriate committee, which has been developed through the case law in BC.
On an application for either the appointment or removal of a committee, the test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of this court and is governed by an assessment of who will serve the incapable person’s best interests.[1] This inquiry includes a consideration of who can best deal with the incapable person’s financial affairs, nurture their estate, and see that their income and estate are applied for their greatest benefit.[2]
Case law in British Columbia, particularly the recent case of Cho (Re),[3] makes it clear that the primary factors the court is to consider are:
- whether the appointment reflects the patient’s wishes, at the time when he or she was capable of forming such a wish;
- whether immediate family members are in agreement with the appointment;
- whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
- the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
- the level of understanding of the proposed committee with the patient’s current situation, and whether that person will be able to cope with future changes of the patient;
- whether the proposed committee will provide love and support to the patient;
- whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
- whether a proposed committee has breached a fiduciary duty owed to the patient or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
- who is best to advocate for the patient’s medical needs;
- whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and
- whether a division of responsibilities, such as between the patient’s estate and the patient’s person to different persons, would serve the best interests of the patient or be less than optimal for the patient.
The above listing is, of course, non-exhaustive and is not in any particular order. Instead, the inquiry by the court is fact specific, and a particular factor may or may not be applicable and may attract different weight depending on the circumstances of a case. Accordingly, the court’s assessment and ultimate determination will rely heavily on the evidence put forth by those seeking an appointment (or removal), those opposing the appointment and the medical professionals who have evaluated the subject incapable.
In the event that the court determines that the patient is incapable of managing his or her personal and/or financial affairs, such that a committee is required, but is not satisfied with the applicant, the court may appoint the Public Guardian and Trustee to take over the management of the patient’s affairs.
Commiteeships are bespoke and are as varied as people’s lives. If you have any questions about commencing a committee application to help an adult who is unable to manage their affairs or you are facing a removal application and need to defend your appointment of Committee of Estate/Person, please contact Miller Thomson’s estate litigation team.
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[1] British Columbia (Public Trustee) v. Pollen (1996), 15 E.T.R. (2d) 154, [1997] B.C.W.L.D. 042 (B.C. S.C. [In Chambers]); Poon, Re, 2005 BCSC 254, 14 E.T.R. (3d) 29 (B.C. S.C. [In Chambers]); and s. 28 of the Act.
[2] Bowman, Re (2009), 2009 BCSC 523, 2009 CarswellBC 1002 (B.C. S.C. [In Chambers]).
[3] Cho (Re), 2020 CarswellBC 1092, 2020 BCSC 689.
