Mok v Wom 2022 BCCA 418 confirmed the criteria for appointing a committee of a mentally infirmed patient’s estate and/or person.
An application for appointment of committee of the person invokes the parens patriae jurisdiction of the court. It is an inherently discretionary and fact specific assessment, governed by the overriding concern of who will serve the patient’s best interests.
Section 18(1) of the Patients Property Act ( PPA) states:
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.
Though the PPA does not provide a specific test to be used in determining who should be a committee, the courts have developed criteria to guide the exercise of discretion in making such an appointment. The court in Stewart (Re) summarized some of these considerations as follows at para. 29:
[29] … However, cases have identified various considerations; see for example: Vranic (Re), 2007 BCSC 1949; Bowman (Re), 2009 BCSC 523; Palamarek (Re), 2011 BCSC 563; Re Matthews, 2013 BCSC 1045; and Sangha (Re), 2013 BCSC 1965. 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.
A judge’s discretion in this assessment is broad; there is no formula that must be rigidly applied. A judge’s decision will often be exercised against a complex set of facts, and will typically have to weigh and balance multiple considerations, some of which may be in tension, and may support, standing alone, different outcomes. Moreover, these kinds of decisions often have to respond to exigent circumstances. Courts need to be able to act decisively to protect the interests of patients. There is a powerful imperative to achieve certainty and finality.
