When an adult becomes unable to manage their own financial, legal or personal affairs, family members may need to step in to help.
If the person previously prepared a Power of Attorney or Representation Agreement, those documents may provide someone with the authority needed to make certain decisions on their behalf.
But what happens when those arrangements are not in place, are not sufficient for the decisions that need to be made, or there are concerns about how an incapable person’s affairs are being managed?
In some circumstances, it may be necessary to apply for committeeship.
Committeeship is a significant legal step in British Columbia because it gives another person authority to make decisions for an adult who has been found incapable. For that reason, it is generally considered a last resort rather than the first option when someone needs assistance.
What Is a Committeeship in BC?
A committeeship is a legal arrangement that allows another person to manage some or all of the affairs of an adult who is incapable of managing those matters themselves.
Private committees are appointed by the Supreme Court of British Columbia under the Patients Property Act.
Despite the terminology, a “committee” is not a group of people. It is the person appointed to act on behalf of the incapable adult.
A committee is often a family member or trusted friend, although a trust company may also be appointed in appropriate circumstances. Where there is no family member or other suitable person willing or able to take on the role, the Public Guardian and Trustee may act as committee as a last resort.
What Is the Difference Between a Committee of Estate and a Committee of Person?
There are two main types of committeeship in British Columbia.
Committee of Estate
A committee of estate manages the incapable adult’s financial and legal affairs.
Depending on the circumstances and the terms of the court order, this can include matters such as managing bank accounts, paying expenses, managing investments, maintaining property, selling or mortgaging real estate and dealing with legal or financial issues.
Committee of Person
A committee of person is responsible for decisions concerning the incapable adult’s personal affairs.
This may include decisions about matters such as health care, where the person should live and other aspects of their personal care.
The same individual may be appointed as both committee of estate and committee of person, although this is not required.
When Might a Committeeship Be Needed?
A committeeship may be considered when an adult is incapable of managing their own affairs or themselves and there is no less intrusive arrangement that adequately addresses the situation.
For example, committeeship may become relevant when:
- An adult has lost the ability to manage significant financial or legal matters.
- Important decisions need to be made but no one has sufficient legal authority to make them.
- An existing Power of Attorney or Representation Agreement does not provide the authority required in the circumstances.
- There are concerns about an incapable adult being financially exploited, neglected or otherwise placed at risk.-
- Significant assets, property or legal matters need to be managed on the adult’s behalf.
- There is a dispute or uncertainty about who should be making decisions for the adult.
Whether committeeship is necessary will depend on the individual’s capacity, the decisions that need to be made and what other planning arrangements are already available.
Is a Committeeship Necessary If There Is a Power of Attorney?
A committeeship is often not required if there is a valid power of attorney.
A valid enduring Power of Attorney can allow the person appointed as attorney to continue handling financial and legal matters if the adult later becomes incapable.
If the Power of Attorney provides the authority needed and the attorney is able and willing to act appropriately, a committeeship may not be necessary for those matters.
However, a Power of Attorney does not necessarily resolve every situation. People often sign powers of attorney with their financial institutions. These limited powers of attorney only work for that particular bank. It does not cover a person’s other assets like real estate, cars or accounts at other financial institutions.
There may be other circumstances where the document does not provide sufficient authority, the attorney is unable or unwilling to act, concerns have arisen about the attorney’s conduct, or other issues make a court-appointed committee necessary.
Importantly, if a committee is ultimately appointed, existing Powers of Attorney and Representation Agreements may be affected. Unless the court order provides otherwise, the appointment of a committee generally ends the authority under those documents.
What If the Person Never Made a Power of Attorney?
Family members do not automatically receive general authority to manage another adult’s finances simply because they are the person’s spouse, child or other close relative.
If an adult becomes incapable without having appropriate advance planning documents in place, the available options will depend on what decisions need to be made and the person’s circumstances.
For significant or ongoing financial and legal matters, an application for committeeship may be necessary if there is no other appropriate source of authority.
This is one reason incapacity planning can be an important part of an estate plan while a person is still capable of making their own decisions.
How Do You Become a Committee in BC?
A person seeking to become a private committee generally applies to the Supreme Court of British Columbia under the Patients Property Act.
The application asks the court to determine that the adult is incapable of managing their affairs, themselves, or both, and to appoint an appropriate person as committee.
The application requires medical evidence. Generally, affidavits from two medical practitioners addressing the adult’s incapacity form part of the application.
The adult who is the subject of the application must generally be personally served with notice of the application before it is heard by court. The court can dispense with service in certain circumstances, including where it is satisfied that serving the adult would be injurious to their health or otherwise inadvisable in their interests.
The Public Guardian and Trustee also has a role in the private committeeship process, including reviewing applications and providing recommendations to the court where appropriate.
Because a committeeship significantly affects the adult’s legal autonomy, the process involves more than simply establishing that the proposed committee is willing to help.
What Does the Court Consider?
The court must determine whether the adult is incapable of managing their affairs, themselves, or both.
The proposed committee must also be suitable for the role.
The circumstances of every application are different, but the court may be provided with information about the adult’s health and capacity, family circumstances, finances and the person seeking appointment. The court looks at five factors in particular to determine if a person is appropriate and if restrictions should be placed on them. The precedent case for these five factors is: British Columbia (Public Trustee) v. Macht, 1991 CanLII 519 (BC CA).
Where appropriate, the court can also place restrictions or conditions on a committee’s authority.
What Responsibilities Does a Committee Have?
Being appointed as committee comes with significant responsibilities.
A committee must act for the benefit of the incapable adult and appropriately manage the matters over which they have authority.
A committee of estate is also expected to maintain proper financial records. Private committees are subject to oversight by the Public Guardian and Trustee and may be required to submit accounts for review.
Although a committee may have broad authority, there are also decisions a committee cannot make on the adult’s behalf. For example, a committee cannot make or change the adult’s Will.
Committees should also involve the adult in decisions as much as reasonably possible and support the adult’s independence where circumstances allow.
How Much Does a Committeeship Cost in BC?
Applying for committeeship can involve legal fees, court-related costs and fees associated with the Public Guardian and Trustee’s review of a private committeeship application.
There can also be ongoing costs after a committee is appointed. For example, the Public Guardian and Trustee reviews the accounts of private committees of estate and charges fees for certain services.
Who is ultimately responsible for particular legal costs can depend on the circumstances and the court’s decision. In most cases, costs associated with the committeeship may be paid from the incapable adult’s estate.
Because the cost of a committeeship can vary considerably depending on the complexity of the application and whether it is opposed, it is helpful to obtain advice about the likely process and costs based on the particular circumstances.
Is Committeeship Permanent?
A committeeship is not necessarily permanent. A committeeship can end in several circumstances.
For example, if the adult later becomes capable of managing their own affairs, an application can be made to have the committeeship ended.
A committeeship may also end or change if the committee is no longer able to act, another committee is appointed or the adult dies.
The appropriate steps depend on the reason the committeeship is ending.
Can Planning Ahead Help Avoid a Committeeship?
Preparing incapacity-planning documents while a person is capable can provide trusted people with legal authority to assist if the person later becomes incapable. That way a committee of estate application is usually not required.
Depending on the person’s circumstances, this may include an enduring Power of Attorney for financial and legal matters and a Representation Agreement for certain personal and health care decisions. People can also pre-select their committee using a nomination of committee form.
These documents cannot prevent every situation in which committeeship might eventually become necessary.
However, appropriate advance planning can reduce the likelihood that family members will later need to seek authority through a court application.
Do You Need Legal Advice About Committeeship in BC?
Committeeship may be necessary when an incapable adult needs someone to manage important aspects of their financial, legal or personal affairs and other available arrangements are not sufficient.
Because a committeeship can significantly affect an adult’s legal rights and gives the committee substantial authority and responsibility, it is important to understand whether it is actually necessary and what the role involves before applying.
At Westcoast Wills & Estates, our lawyers assist individuals and families with committeeship and incapacity-planning matters across North Vancouver, Vancouver, Burnaby, Surrey, Richmond and surrounding communities. We can help assess the available options and provide guidance through the committeeship process where a court application is required.
To get started or to learn more, contact our office to book a consultation today.
Disclaimer: The information in this blog is for general informational purposes only and should not be relied upon as legal advice. Please review our Privacy Policy.
