If someone becomes mentally incapable and has not prepared for that possibility with a Power of Attorney or Representation Agreement, a formal process called committeeship may be the only option for another person to step in and help.
A trusted family member or friend can apply to the BC Supreme Court to be appointed as committee of the person (for health and personal care decisions) and/or of the estate (for legal and financial matters). The person needing assistance is referred to as the patient.
But seeking committeeship is not without its problems, including:
- It is a formal court process:
- Two doctors must examine the patient, reach the conclusion that the patient is incapable of managing themselves and/or their affairs and provide a sworn statement to that effect;
- The person seeking committeeship (the ‘applicant’) must provide details of the patient’s family circumstances, living situation (current and future), income/expenses, and their assets/liabilities;
- Other family members must consent to the applicant’s request for a committeeship order;
- A government agency, The Office of the Public Guardian and Trustee (‘PGT’), must review the application and provide their view.
- Often, the PGT will not object to the application, but will request restrictions on the use of the patient’s assets.
- A typical restriction is to prevent dealings with the patient’s home (such as a sale or placement of a mortgage) without PGT approval or further order of the court.
- The process from initiation to obtaining a court order is typically time-consuming:
- It relies on the assistance of third parties (doctors and the PGT) who are usually busy and not able to respond immediately to requests;
- If the patient has only one doctor that they see regularly, a second doctor must be retained to conduct a capacity assessment and provide a report;
- If the applicant does not have the patient’s financial details at the outset, they will need to first get the court order to be appointed, then investigate and report on the patient’s financial details, and finally get another court order relating to the assets and any restrictions on their use.
- It is costly to obtain the necessary court order(s) due to its time-consuming nature and the fees that the participants will charge for their work.
- Once the applicant is appointed:
- They will be assigned a Committee Review Officer at the PGT;
- They must provide regular reports to the PGT for as long as they act as committee, and when the committeeship ends;
- If asset restrictions have been imposed, they must seek PGT approval for the use of assets subject to those restrictions.
- Finally, if anyone disagrees with the proposed appointment of the applicant (whether that is the patient themselves, another family member or the PGT), the process becomes a dispute which could require a trial at court, with all the further expense and drama that such disputes will bring.
It is not a quick and easy process to obtain a committeeship order… so not exactly a ‘No Problem’ situation.
But it can be a necessary hurdle if a person has not done their planning in advance, they are in circumstances where they simply cannot manage themselves and/or their affairs any longer, and they need comprehensive help from another individual to manage these things for them.
If you find yourself in a situation where you need to step in to help someone you care about in this way, we can make it a much more manageable ‘problem’ to solve.
More importantly, we can also help you create your own Power of Attorney and Representation Agreement so that you do not become the person needing the appointment of a committee.
