As "baby boomers" age, their families are left to confront a myriad of medical, social, practical and legal issues that can arise in providing ongoing care and support. Poor health, limited finances and, frequently, varying degrees of mental incompetence can make this task emotionally and legally difficult. Add in strained intra-family relationships and the scenario is even more fraught. What can family members do where a parent suffers some form of dementia but the family itself is riven by acrimony? What assistance can the law provide to address these situations?
The Patients Property Act is a statute that allows for the appointment of a "committee" who is granted the legal authority to look after the legal and/or personal affairs of the patient. In effect, a committeeship order clothes the committee with the same type of legal authority that an enduring power of attorney would provide. The difference is that powers of attorney can only be granted by a person when they are legally competent. If there is no POA and a parent becomes incapacitated, then a committeeship is the only alternative.
The court can appoint a committee under the Patients Property Act but only if two medical practitioners certify that the patient is incapable of managing their person and/or legal affairs because of either: a) mental infirmity arising from disease, age or otherwise; or b) disorder or disability of mind arising from the use of drugs. Provided this and other evidence satisfies a judge that the patient is "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 court will point a committee. Generally, the court will prefer to appoint "a competent family member who presents a picture of caring and affection for the patient will be preferred" over public officials such as the Public Trustee or professional trust companies (Re: Moore, 2003 BCSC 1835).
As the Patients Property Act makes clear, a committee must exercise the committee's powers for the benefit of the patient and patient's family, having regard to the nature and value of the property of the patient and the circumstance and needs of the patient and the patient's family. Appointment as a committee can be conditional on various things, such as posting a bond, a passing of accounts at regular intervals or reporting to the Public Guardian & Trustee's office. The best interests of the patient are paramount. While those goals are often easily decided, in cases where they are not, or there is family dissension, the court maintains a superintending role and, if necessary, can provide advice and directions to a committee in various situations.
The Court can also provide assistance and directions, to a committee or generally, where there is some difficulty, usually within a family, that may adversely affect the patient. For example:
- Where there is a dispute over who should be the committee, the court will choose the most appropriate party: Horton (Re), 2020 BCSC 87.
- Where there is concern over a committee's conduct, on an application by others, the court can discharge and replace a committee: Re: De Cotiis, 2006 BCSC 297.
- Where a family member refuses to leave the patient's property, the court can grant orders that the property be vacated or that occupation rent be paid: Pellerin v. Pellerin, 2019 BCSC 2234.
- If there is a dispute over the sale of property, such as the family home, the court can grant orders for its sale along with directions for how that will be accomplished: Watson v. Strong, 2014 B.C.J. No. 843.
If your family either has concerns over the welfare of an ailing family member, there are legal mechanisms available to both assist in clothing others with the authority to care for that person and to challenge the appointment of committees where they are seen not to be acting appropriately.
Originally published August 17, 2020.
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.