In recent weeks, we’ve discussed topics like Advanced Medical Directives and Representation Agreements in the blog. These legal documents serve a valuable and specific purpose, with an individual capable of drafting them in advance to fit their future needs.
If an individual fails to plan in advance, a mechanism known as Committeeship can be used by the courts to appoint a person(s) to make those crucial decisions relating to financial or medical issues.
The “Committee” acts as a last resort option when an individual becomes medically incapable of deciding for themselves. Let’s learn more about how Committeeship works.
What is a Committee?
If an adult becomes mentally incapable of making important decisions for themselves, the BC Supreme Court can appoint a Committee (pronounced “Kom' mit tee”) to make the decisions on their behalf. The Committee may be composed of one or more individuals, and may include a representative from the Public Guardian and Trustee.
Committees come in two types. Let’s examine the differences
Committee of Estate: This type of committee limits nominees to making financial and legal decisions only. This type of Committee is the most common seen in BC, as individuals often lose the capacity to manage their financial and legal affairs before they lose the capability to look after themselves.
Committee of Person: Limited to personal and medical decisions only. This includes whether to accept medical treatments, or whether to place the individual into long term care. Typically, this position will be filled by a family member or close friend.
When is a Committee Appropriate?
There’s a high threshold for the appointment of a Committee in BC Law. It may be suitable for individuals who suffer from a mental illness or physical disability, someone rendered unconscious from an injury, or someone dealing with a degenerative disease with a poor prognosis. Prior to the appointment of a Committee, the adult must be deemed by two physicians, incapable of managing themselves or of managing their affairs.
Even where an individual is deemed incapable, a Committeeship may not be necessary if the individual has minimal assets, has reasonable living arrangements in place, and is well cared for. There are less onerous alternatives to Committeeship for individuals who simply need authority to manage government benefits, tax returns, and claim benefits on behalf of an incapacitated individual.
The reason Committeship applications to court are limited is due to the power afforded to the Committee in areas like finance and medical care. Above all else, it’s vital these incapacitated individuals are not taken advantage of when their right to decide their own outcome is taken away.
How the Process Works
Committees are appointed by the BC Supreme Court. Any person can apply in court to become Committee for another person. However, the court will only make an appointment that accords with the incapacitated individual’s best interests, which includes: their autonomy and dignity, the idiosyncrasies and the way the adult lived while capacitated, the proposed committee’s previous involvement with the adult and the adult’s family, the proposed committee’s knowledge and understanding of the adult’s situation and needs, the proposed committee’s level of experience or capability in performing the duties of committee, any kind of plan or scheme of the proposed committee for the management of the adult, and any potential conflict of interest between the proposed committee and the adult.
If you wish to have some say over who is made your Committee, you can nominate your own Committee as a future contingency plan thanks to the BC Patients Property Act (PPA). When this nomination is presented to the court, they must appoint the person(s) named unless there is a valid reason not to do so. You may be wondering why it would be necessary to nominate a Committee if you have already prepared a Power of Attorney and a Representation Agreement. The Nomination of Committee provides a fallback option for the courts in the event your attorney or representative is unavailable or unwilling to act. If there is ever a gap in decision-making with no individual having authority to act on your behalf, the Nomination of Committee becomes relevant.
If you are close to a family member or friend who has lost the capability to make their own decisions you can apply to the BC Supreme Court for appointment to their Committee. Beware that this form of litigation is expensive and can be time consuming, especially if there are competing applications for committeeship. This is just one reason why we recommend you take the precaution of preparing a Nomination of Committee while you have capacity.
When is the Committee’s Power Removed?
There are two scenarios for the removal of responsibility from the Committee. If the individual dies, the Committee will continue to represent them until someone is appointed to handle their estate.
Should the individual become capable again, they can apply to court to end the role of the committee.
Learn More About Nomination of Committees
If you, or a loved one, is interested in finding out more about Nomination of Committees we’d love to discuss your options. Westside Family Law can assist with any legal questions you may have surrounding estate law. Contact us and we’ll be happy to assist!