95-year old Zsa Zsa Gabor, a Hollywood actress and socialite, has been the subject of a dispute between her husband and her daughter.  The daughter started a court action seeking to be her mother’s conservator (in British Columbia, one would seek to be appointed a committee under the Patients Property Act.) 

Earlier this month, the court in Los Angeles named the husband a temporary conservator of Ms. Gabor’s estate.  The daughter is allowed to visit weekly, on 24-hours notice, and will receive financial statements monthly:  see the ABC news website article here:  http://abcnews.go.com/blogs/entertainment/2012/07/zsa-zsa-gabors-husband-wins-temporary-conservatorship/

In British Columbia, the person seeking to be appointed as committee (adult guardian) will send their application to the Public Guardian and Trustee of British Columbia (the “PGT”) for review before attending in Court.  The PGT will write a letter of recommendation (or not) which is then put before the Court.  If the Court appoints a committee (an adult guardian), the Order may put the adult guardian in charge of a person’s estate or person or both. 

Sometimes protection is also ordered by the Court to safeguard the vulnerable person’s assets. When the person is appointed guardian of the estate, the Court may order security in the form of a bond, or it may place restrictions on certain assets.  For example, the Court may make an order preventing the committee from selling the home, or to have access only to the income (not the capital) on certain assets, without notifying the PGT and/or getting a further court order.

When the person is appointed committee of the vulnerable person’s estate, a copy of the order is sent to the PGT. The PGT will then send a  letter to the committee advising how frequently the person will be required to “pass their accounts,”  which means to explain in detail the person’s assets at the beginning, all expenditures, liabilities, income, and changes to the assets (i.e. rolling over a GIC when it matures.)  Frequently this is set for one year after the Court Order.  The accounts are This is done pursuant to section 10 of the Patients Property Act, which states:

10(1)(d) the committee must pass the committee’s accounts before the Public Guardian and Trustee at the times directed by the Public Guardian and Trustee, including, if the Public and Guardian Trustee requires it, a true inventory of the whole estate of the patient, stating the estimated revenue of it and setting out the debts, credits and effects of the patient to the extent they have come to the knowledge of the committee;

10(1)(e) if required by the Public Guardian and Trustee, the committee must pass the accounts before the Supreme Court in the county in which the committee was appointed committee.

This week, several news outlets are reporting that singer Britney Spears’s father and/or fiancé is petitioning the Court to have her fiancé be added as conservator of her personal affairs (along with her father), while her father will retain control over her financial affairs with an attorney (see, amongst others:  http://www.cbsnews.com/8301-31749_162-57411766-10391698/britney-spears-petitions-court-to-let-fiance-help-with-her-personal-affairs/). 

As British Columbia practitioners, we will not comment on Ms. Spears’s case or its medical and legal underpinnings.  However, we can write about what would happen in British Columbia, where  this type of guardianship is known as a committee (the adult guardian).  The committee’s responsibilities  can be similarly split between one or more persons, and the responsibilities for the person’s (a) financial and legal affairs and (b) personal affairs may also be ordered to be managed by more than one person, either jointly or separately. 

In British Columbia, to replace or add new committee(s), an application to the Court is required.  On such an application, the Court can rescind the appointment of a previously appointed committee and appoint one or more other persons in place of the former committee(s) (see Bua v. Clegg, 2006 BCSC 802 (“Bua”) and Re: Brady, (1996) 14 E.T.R. (2d) 133), however the Committee discharged (removed) by the Court will likely still be required to pass his or her accounts regarding the estate of the incapable person (see BC Patients Property Act, ss. 6 and 13).

Appointing an incapable person’s close relative, such as a father or fiancé, might seem to create a conflict of interest – for example, the incapable person may live with such close relatives.  This does not bar such a person from being appointed committee, but the situation will be carefully considered by the Court in the application.  In British Columbia,  the Court is guided by what is in the best interests of the incapable person, and the Court has expressed a preference for the personal touch of family member(s) acting as committee(s).  Restrictions might be added, for example, to protect the incapable person’s assets, or a security bond may be ordered.  In Bua, for example, the Court replaced a committee (a friend of the patient) with the incapable person’s spouse and his friend, notwithstanding the application of the Public Guardian and Trustee to act as committee and the objections of the incapable person’s siblings to the spouse being so appointed.  It was alleged that the spouse was using the incapable person’s estate to support family expenses, arguably creating a conflict of interest.  The Court placed restrictions on the use of the patient’s assets as a safeguard.

Ms. Spears’ case is also an example of how the spectrum of incapacity can be broad. Some patients may be completely unresponsive and clearly in need of a decision-maker, while at the other end, patients may be quite active but still require someone else to make decisions.   In BC, applicants for a committeeship must satisfy the court that a person is incapable, which must be supported by at least two doctor’s affidavits.  See my previous post “What is a Committeeship, and why you might need one”  (http://www.bcheritagelaw.com/blog/estate-litigation/what-is-a-committeeship-and-why-you-might-need-one/) on the process for an initial committee appointment order.

Presentation to the Canadian Bar Association, BC Branch ADR-Vancouver Section on March 13, 2012

• essentially a summary of Elder and Guardianship Mediation: A Report Prepared by The Canadian Centre for Elder Law, (CCEL Report No. 5), January 2012 (the “Report”)

•  The Report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianshipmediation

• Funded by the Law Foundation of BC, the Report is the first comprehensive report on elder and guardianship mediation in BC and Canada
• the Aim of the Report is to give practical assistance to those directly engaged in the field of elder and guardianship mediation in BC
• Over three years, all BC Law Institute staff members contributed to the research, design, management and execution of the Report, including Jim Emmerton, LauraWatts, Krista James, Joan Braun, Greg Blue, Kevin Zakreski, Emma J. Butt (the principal writer), and others

Elder and Guardianship Mediation Today in BC

• Elder and guardianship mediation are new and growing fields of practice;
• BC now has proposed legislation calling for mandatory mediation in adult guardianship matters;

• Mandatory mediation provisions were included in the major reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (“Bill 29”)

Read more….

Are you concerned that you or your loved one could lose capacity to manage finances or health care?

Wills and Estates lawyer Jane Rockandel, B.A., LL.B. of Heritage Law will present on:

• How do I plan for incapacity?
• What legal documents are required?
• What happens if I lose capacity before I have had a chance to put a plan in place?
• What if my family is not in agreement?

When: Wednesday, March 7, 2012, at 10am

Where: Heritage Law, Suite 220 – 545 Clyde Avenue, West Vancouver, BC V7T 1C5

Register here