Nature of a Committeeship
A committeeship is a way of protecting the interests of a dependent adult who is incapable of managing his or her affairs (the “patient”). The Patients Property Act of British Columbia (“the Act”) legislates how a committee is appointed and how the personal and financial affairs of the patient is managed.
Committeeship appointments require the court to declare that patients are:
a. incapable of managing their affairs;
b. incapable of managing their selves; or
c. incapable of managing both their affairs and their selves.
The Act makes this distinction between individuals’ inability to manage their affairs versus and inability to manage their selves, since many individuals who are incapable of handling their financial and legal affairs, particularly where their estate is complex or large, may still be capable of exercising choices on matters such as personal care, where and with whom they wish to live, and what kind of medical treatment they wish to receive. Therefore it is possible to have someone appointed solely as the committee of a patient’s estate or of a patient’s person, rather than of both. It is also possible to have someone appointed committee of a patient’s person, while someone else – most often a trust company – appointed as committee of that patient’s estate.
Material in support
Because the appointment of a committee encroaches on a person’s freedom, the court requires that the declaration be clearly warranted by the circumstances. The materials provided to the court for examination must include the following:
1) The affidavits of two doctors sworn within a reasonable time of the application (one to two months), that indicate the patient is, for stated reasons, incapable of managing him or her self or his or her affairs by reason of mental infirmity arising from disease, age, or otherwise, or by reason of disorder or disability of mind arising from the use of drugs;
2) Notice of the application has been served on the patient or, where applicable, that service on the patient would be injurious to the patient’s health or otherwise inadvisable for stated reasons;
3) The names and addresses of the patient’s next of kin;
4) The Public Guardian and Trustee of British Columbia (the “PGT”) has been notified of the application and the PGT’s recommendations are before the court in the form of a letter of response; and
5) A specific listing of the patient’s assets, liabilities, income and expenses that includes, wherever possible, current balances, account numbers and the names and addresses of the various banking institutions.
Notice of the Application
Notice of the application for the order must be served at least ten days before the date of the application on the following people:
a) the patient,
b) the PGT,
c) any person whose rights may be affected by the order.
The court will dispense with service of notice on the patient only when satisfied that service would injure that person’s health, or would for any other reason be inadvisable in the interests of the patient. A request to dispense with service on the patient must be supported by the medical evidence, stating not only the physician’s opinion that service would be injurious to the patient, but also how service would be injurious, with related clinical findings.
Notice to the PGT obligates that office to critically review the application. The PGT’s role is to review the application with the protection of the patient’s rights in mind. The PGT provides comments to the applicant and to the court before the hearing. If the PGT’s recommendations are not acceptable to the applicant, the applicant must respond to give the PGT sufficient time to arrange for representation at the hearing. The areas in which the PGT generally makes specific recommendations on are:
a) Whether the patient should be notified,
b) What restrictions, if any, should be placed on the sale of any real estate owned by the patient,
c) Whether a bond, or other form of security to the patient for their estate, should be posted.
Other persons whose rights may be affected by a committeeship order are generally the next of kin or holders of a power of attorney.
Security by Posting of a Bond
In practice, the PGT recommends that a bond be posted for the security of the patient’s estate.
Generally the PGT is willing to waive this requirement if the applicant is a near next-of-kin and a primary beneficiary of the patient’s Will.
Effect of the Order
Once the order is granted, and if the applicant has been appointed committee of both the estate and the person of the patient, then the committee has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if he or she was of full age and sound and disposing mind, and as well the custody of the person of the patient and the patient’s medical welfare. This power must be exercised for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and circumstances of the patient and the patient’s family. This power is restricted only by such conditions as the court imposes on the committee. The committee’s power also does not extend to contracting marriage for the patient, drawing up a Will, or changing the designation of beneficiaries under insurance policies, pension plans, or registered retirement savings plans.
Duties of the Committee
The committee must present his or her accounts to the PGT for approval at intervals set by the PGT’s office. These intervals will be referred to in letters received from the PGT.
The first reporting period will usually be for one year after the court order is made.
Upon the appointment of a committee, it is the practice of the PGT to provide the committee with a handbook which sets out the committee’s obligations and responsibilities, as well as guidance on how to administer the money entrusted to the committee. The PGT also provides a draft form of reporting, known as a Summary of Accounts, to assist the committee in satisfying those obligations.
Costs and Remuneration
A committee is entitled to recover from the estate of the patient all reasonable legal fees and disbursements relating to the committeeship application. These disbursements extend to the fees charged by the PGT and by the physicians in producing the affidavits in support of the application. All costs incurred by the committee on behalf of the patient will be reviewed by the PGT when the committee provides the required accounting.
The committee is also entitled to be compensated from the estate of the patient for services provided to the patient at a reasonable rate, which is fixed on the passing of the accounts. A committee is not entitled to employ a professional person, at the expense of the estate of the patient, to do work not usually requiring professional assistance.
For further information, see the PGT’s website at http://www.trustee.bc.ca