Who Should Be Appointed Committee

Appointed Committee

The thorny topic of  who should be appointed Committee was discussed in Baker-McGrotty V Baker 2016 BCSC 699.

The case involved a representation agreement appointing a care giver but was signed when the patient was severely cognitively impaired, so it was suspect in it’s validity.

The Court then decided who should be appointed committee under the Patients Property Act and had the following to say:

 

[37]        In Stewart (Re), 2014 BCSC 2321 (CanLII), Mr. Justice Masuhara helpfully summarized the applicable law as follows:

 

[27]      The application for an appointment invokes the parens patriae jurisdiction of the court and is governed by an assessment of who will serve the patient’s best interest.

 

[28]      Section 18 of the Act states that:

 

A Committee must exercise the Committee’s powers 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 the circumstances and needs of the patient and the patient’s family.

 

[29]      As has been observed in other cases, the Act does not prescribe criteria for the selection of an appropriate Committee. However, cases have identified various considerations; see for example: Vranic (Re), 2007 BCSC 1949 (CanLII); Bowman (Re), 2009 BCSC 523 (CanLII); Palamarek (Re), 2011 BCSC 563 (CanLII); Re Matthews, 2013 BCSC 1045 (CanLII); and Sangha (Re), 2013 BCSC 1965 (CanLII). They include:

(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b) whether immediate family members are in agreement with the appointment;

(c) 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;

(d) the level of previous involvement of the proposed Committee with the patient, usually family members are preferred;

(e) the level of understanding of the proposed Committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f) whether the proposed Committee will provide love and support to the patient;

(g) 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;

(h) 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;

(i) who is best to advocate for the patient’s medical needs;

(j) 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

(k) 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 would such a division be less than optimal for the patient.

[39]      The above listing is of course non-exhaustive or in any particular order. The inquiry 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.

 

[38]        In Vranic (Re), 2007 BCSC 1949 (CanLII), Madam Justice Ballance made the following apposite remarks:

 

[91]      The test for selecting an appropriate Committee is determined on the court’s assessment of who will serve the patient’s best interests: Public Trustee v. Thomas James Pollen, [1996] B.C.J. No. 2394; Re Watson, 2006 BCSC 503 (CanLII), [2006] B.C.J. No. 709, 2006 B.C.S.C. 503; Re Leeming (1984), 1984 CanLII 566 (BC SC), 14 D.L.R. (4th) 315 (B.C.S.C.); Re Rempel, 2001 BCSC 735 (CanLII), [2001] B.C.J. No. 1036, 2001 B.C.S.C. 735. Under the current legislative scheme, a declaration of incapacity and the appointment of a Committee has the effect of being a blunt order which results in a far-reaching fundamental loss of an adult’s liberties. The “best interests” test is a familiar one in law and, in particular, in the judicial determination of issues which affect children.

 

[92]      For sound reasons, that standard quite properly reflects the protective approach of the court in dealing with matters which affect children. Although the test by the same name applies in considering the appointment of a Committee for a mentally incapacitated adult, its application requires a more nuanced approach which acknowledges and takes into consideration issues concerning the adult’s autonomy, his personal dignity, his idiosyncrasies and the way he has chosen to live his life while capacitated. It also takes into account most assuredly any wishes he has validly expressed while mentally competent or lucid about who he would like to act as his Committee or otherwise make decisions on his behalf.

 

[93]      These factors should also inform the manner in which a Committee performs his or her duties. Additional important factors the court is to consider are, the proposed Committee’s previous involvement with the patient or his family, the proposed Committee’s knowledge and understanding of the patient’s situation and needs, the proposed Committee’s level of experience or capability in performing the duties of Committee, any kind of plan or scheme of the proposed Committee for the management of the patient and any potentially conflict of interest between the proposed Committee and the patient. Re West (1978), 20 N.B.R. (2d) 686 S.C.A.D.; Re Taylor (1982), 13 E.T.R. 168 (B.C.S.C.); Re Watts, [2002] B.C.S.C. 1331 (Master); Finlay v. Finaly (1997), 16 E.T.R. (2d) 216 (B.C.S.C.).

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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