When an individual has not planned for mental incapacity by
preparing an enduring power of attorney instrument, representation
agreement and/or advance directive, a committee application is
A committee is a person or institution appointed by the court to
make personal, medical, legal and/or financial decisions for an
adult person who is mentally incapable and cannot make those
decisions. There are two types of committees: (1) a
committee of the estate is able to make financial
and legal decisions on behalf of the person, and (2) a
committee of the person is able to make personal
and medical decisions for the person.
The Patients Property Act, RSBC 1996, c 439, is the
governing statute for committeeships. It provides that, on evidence
from two medical practitioners that a person is incapable of
managing his or her affairs or person, the court has the power to
declare that person incapable and appoint a committee to act on his
or her behalf.
In the recent case of Kirkwood (Re), 2016 BCSC 673,
Master Keighley reviewed the test for appointing a committee and
applied the 11 considerations for the court when resolving a
contested application for committeeship as established in
Stewart (Re), 2014 BCSC 2321:
whether the appointment reflects the
patient's wishes as of the time 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 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;
the level of previous involvement of
the proposed committee with the patient (usually family members are
the level of understanding of the
proposed committee with the patient's current situation, and
the ability of the proposed committee to cope with future changes
of the patient;
whether the proposed committee will
provide love and support to the patient;
whether the proposed committee is the
best person to deal with financial affairs and ensure the income
and estate are used for the patient's benefit;
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;
who is 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; and
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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