Mental Incompetency and the Patient’s Property Act

Mental Incompetency

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient.

A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a Power of Attorney that she signed when she was still mentally competent.

 

The applicants were a close  friend who had cared for the patient for several years, and the opposing applicant was a niece and her husband.

 

The patient had no close family.

 

The Court reviewed the various factors to be considered , found there was potential for conflict of interest with the niece and granted committeeship of the person to the good friend.

 

Committeeship of the person would allow the friend to make health care decisions for the patient, while the trust company would continue to mange her financial affairs.

 

The Applicable Law

 

17      The test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of the court and is governed by the assessment of who will serve the patient’s best interests, including a consideration of who can best deal with the patient’s financial affairs, nurture her estate, and see that her income and estate are applied for her greatest benefit.

18      Although each case must be decided on its particular facts, in Re Bowman, 2009 BCSC 523 at para. 33, the court set out a number of considerations which guide the court’s decision-making:

(a) the proposed committee’s previous involvement with the patient or her family;

(b) the proposed committee’s knowledge and understanding of the patient’s situation and needs;

(c) the proposed committee’s level of experience and capability in performing the duties of committee;

(d) the plan of the proposed committee for the management of the patient; and

(e) any potential conflict of interest between the proposed committee and the patient.

 

19      More recently, in Stewart (Re), 2014 BCSC 2321 at para. 29, Justice Masuhara summarized additional criteria from a number of decided cases. I set out only those criteria relevant to this decision which relates only to appointing a committee of the person. They are:

(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;

. . .

(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; …

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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