Committeeship: The Criteria For Who Gets Appointed

Re Horton 2020 BCSC 87 reviewed the criteria required for an order of committeeship under the Patient’s Property act and ordered that the Public Guardian and Trustee be appointed and the contesting applicants denied court costs due to their wrongful conduct motivated by an animus against the other.

S.2 Patients Property Act provides that the Attorney General, a near relative of a person or other person may apply to the court for an order declaring that a person is, because of:

a) mental infirmity arising from disease, age or otherwise, 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.

The act does not prescribed criteria for or factors to be considered in the selection of a person to serve as a committee, but it is well-established that the test invokes the parens patriae jurisdiction of the court and is governed by an assessment of who will serve the patient’s best interests. Re Bowman 2009 BCSC 523 at para. 32

Re Stewart 2014 BCSC 2321 at para. 29 summarize the factors that have been considered in other cases in determining who should be appointed to serve as committee:

  • whether the appointment reflects the patient’s wishes, when he or she was capable of forming such a wish;
  • whether immediate family members are in agreement with the appointment;
  • whether there is any conflict between family members are 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;
  • the level of previous involvement of the proposed committee with the patient, with family members usually been preferred over an outsider;
  • the level of understanding of the proposed committee of the patient’s current situation, and whether that person will be able to cope with future changes;
  • whether the proposed committee will provide love and support to the patient;
  • 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;
  • whether the 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;
  • who was best to advocate for the patient’s medical needs;
  • 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;
  • whether a division of responsibility, such as between the patient’s estate in the patient’s person to different persons would serve the best interests of the patient, or whether such a division would be less than optimal.

The court pointed out that this list of factors, it is not exhaustive, the enquiry is fact specific, and one or more factors may not be applicable in any particular case, and the factors may be given different weight depending on the circumstances.

Costs Denied

Generally speaking, successful applicants for a committeeship should be awarded special costs payable under the patient’s estate, and that even’s unsuccessful applicants whose actions were motivated by concern for the best interests of the patient should be awarded special costs payable out of the estate. Re Atwal BCSC 660 at paras. 23-25.

The court however denied both applicants costs in these proceedings by reason of their wrongful conduct that was motivated by Animus against the other, thus necessitating the court applications by reason of their ongoing power struggle.

Committeeship Order Terminates Representation Agreement

Caregiver Services: Quantum Meruit

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:

  1. 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.