Protecting Vulnerable Adults: The Basics of Committeeship in BC

The question of what happens when adults do not have the requisite capacity to make financial, legal, or personal safety or healthcare decisions for themselves can arise in a variety of difficult situations, such as when a parent has advancing dementia, when a child with disabilities reaches the age of majority, or when an accident causes temporary or permanent cognitive deficiencies.

If the adult does not have personal planning documents in place, like a power of attorney instrument or a representation agreement, there is a question of who can assist that person with those decisions that would otherwise be their own.

In British Columbia, a legal solution known as “committeeship” allows another person or organization to step in and protect the adult’s interests and well-being as their decision-maker. In this blog post, we will explore the basics of committeeship in BC, how it works, and why you may need to use it.

Understanding Committeeship

Committeeship is a legal process governed by the Patients Property Act[1]. It allows an applicant to apply to be appointed as a “committee” of another adult. The applicant may be a family member, a close friend, a professional trust company, or the Public Guardian and Trustee (the “PGT”). If successfully appointed, the court will make a declaration that the adult is incapable (becoming a “patient” under the Act), and that the committee steps into the shoes of the patient and has the authority to make decisions on their behalf.

Two Types of Committeeship

There are two types of committees in BC, each with specific responsibilities:

1. Committee of the Estate: The committee takes charge of the patient’s financial and legal matters. The committee handles everything from managing bank accounts to making legal decisions on behalf of the patient.
2. Committee of the Person: The committee looks after the patient’s health and personal care matters. This includes making decisions about medical treatment, daily care, and general well-being.

An applicant may be appointed committee of estate, committee of person, or both. In some cases, the committee of estate and committee of person may not be the same person. For example, a professional trust company may be appointed committee of estate to manage the patient’s financial and legal affairs, while a family member is appointed committee of person to manage healthcare and personal care decisions for the patient.

The guiding principle is who will act in the best interests of the patient.

Why A Committeship?

1. Safety Net: Committeeship ensures that the financial and personal affairs of vulnerable individuals who are unable to make decisions for themselves are protected in a variety of scenarios.
2. When No Alternatives Exist: A Power of Attorney (“POA”) lets you give another person the authority to manage money and property on your behalf; however, situations can arise where the adult is incapable and the POA is invalid, the POA does not contain the type of power needed for the specific decision at issue, the attorney acting under the POA is or has become problematic, or no POA exists at all. In such situations, committeeship becomes the necessary legal avenue to ensure proper care and decision-making for the incapable adult.
3. Medical Treatment Consent Hierarchy: When medical decisions need to be made, consent is sought in a structured hierarchy:
   1. from the adult (19+), if they are capable;
   2. from the adult’s committee of person[2];
   3. from the adult’s representative under a valid representation agreement[3];
   4. in consideration of the adult’s advance directive, if any;
   5. from the adult’s temporary substitute decisions maker[4] (which references a further hierarchy: spouse, adult children, parent, sibling, etc.).
4. When there is a Dispute: In some cases, a dispute can arise as among family members and others about whether the adult is in fact incapable, whether the adult’s recent personal planning documents are in fact valid, whether a person currently acting with valid authority as an attorney, representative, or temporary statutory decision maker is in fact acting in the best interests of the adult. Where a resolution is not otherwise possible among the interested parties, the committeeship process can resolve these issues.

The Process of Committeeship

To become a committee, you must apply to be appointed by court order.

1. Petition: The party applying for appointment as committee initiates the process by filing a petition in the British Columbia Supreme Court civil registry.
2. Supporting Materials (Medical Assessment & Patient Details): At the time of filing the petition, the applicant must file two affidavits of qualified medical practitioners setting out their opinion that the adult (the “proposed patient”) is incapable of managing their affairs or person (or both) and one affidavit setting out the details about the adult, their next of kin, their assets, and other relevant information. It can take some time to obtain this information.
3. Service: In most cases, the proposed patient must be served with the petition and supporting materials. The PGT must also be served with the petition. In most cases, the PGT will file a response and make recommendations. The applicant should also endeavour to provide notice to the proposed patient’s next of kin. All parties served must respond within 21 days if served in Canada, 35 days if served in the USA, and 49 days if served anywhere else.
4. Court Proceeding: The court reviews the petition and supporting materials and hears counsel’s submissions at a hearing.
5. Order: Based on the presented evidence, the court makes a ruling on:

1. 1. if the adult is incapable of managing their affairs and/or themselves (in which case they become a “patient”); and
   2. who is appointed as committee for the patient and what type of committee.

This Order is the basis for the committee’s authority.

Where a committeeship is contested (multiple applicants cannot agree), additional evidence is required, and the hearing can take several days to complete.

Termination

A committeeship ends when a patient is no longer incapable, or by recission or discharge of the committee.

Conclusion

Committeeship is a powerful legal process. Appointing an appropriate committee preserves dignity, protects against exploitation, and ensures both personal and financial needs are met for the vulnerable adult.

If you have a question about initiating or terminating a committeeship, or any questions concerning capacity planning, you can contact Aubrie Girou or a member of our Wills, Estates + Trusts Group.

[1] RSBC 1996, c. 349.

[2] RSBC 1996, c. 349.

[3] Representation Agreement Act, R.S.B.C. 1996, c. 405.

[4] Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181.

Thank you to Maggie Lee, articling student, for her assistance in preparing this post.