Re Unrick 2015 BCSC 1330 held that an order of committeeship under the patient’s property act terminates both an existing Power of Attorney, as well as a Representation Agreement.
A petition was brought by the 91-year-old patient’s next of kin to have her declared mentally incapable of handling her affairs and herself under the Patients Property Act.. The patient had granted two friends, a married couple, her power of attorney and appointed them as her representatives under a representation agreement, as well as changed her will to to leave her estate two thirds to the friends and one third to the nieces.
The Law
It is clear from the PPA that the existence of a power of attorney or representation agreement is not a bar to the declaration of someone being a patient or the appointment of a committee. First, s. 3(1) of the PPA makes it mandatory for the court to make the declaration if the criteria are met. It provides:
3 (1) If, on
(a) hearing an application, and
(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of
(i) mental infirmity arising from disease, age or otherwise, or
(ii) disorder or disability of mind arising from the use of drugs,
(c) mental infirmity arising from disease, age or otherwise, or
(d) disorder or disability of mind arising from the use of drugs, incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs, it must, by order, declare the person:
(i) incapable of managing his or her affairs,
(ii) incapable of managing himself or herself, or
(iii) incapable of managing himself or herself or his or her affairs.
The definition of “patient” in the Act is someone in respect of whom this declaration has been made. (In effect, then, the court declares an incapable person to be a patient.)
[4] Second, the PPA contemplates making a declaration in the face of powers of attorney and representation agreements since s. 19 sets out the consequences of a declaration on those documents:
- On a person becoming a patient as defined in paragraph (b) of the definition of “patient” in section 1.
(a) every power of attorney given by the person is terminated, and
(b) unless the court orders otherwise, every representation agreement made by the person is terminated.
[7] In Lindberg v. Lindberg, 2010 BCSC 1127 at para. 49, Wilcock J. identified the following criteria with respect to whether a representation agreement should be allowed to stand after a person has been appointed a patient:
(a) the circumstances in which the representation agreement was executed;
(b) the scope of the representation agreement; and
(c) the basis for the application to set it aside.
[35] In determining the appointment of a committee, the court’s concern is the best interests of the patient: Vranic (Re), 2007 BCSC 1949. In Stewart v. Stewart, 2014 BCSC 2321 at para. 29, Masuhara J. set out a list of considerations with which to assess this.
