A person may be appointed as committee to manage an incapable person and/or their affairs.

The usual process is to bring an application under the Patients Property Act [RSBC 1996] Chapter 349 for an order declaring the person incapable, and the appointment of a committee.

A person applying for a committeeship order must provide affidavits of two medical practitioners setting out their opinion that the person who is the subject of the application is, because of mental infirmity arising from disease, age or otherwise, or disorder or disability of mind arising from the use of drugs, incapable of managing their person or their affairs. Without the two affidavits, the court cannot make the order under the act.

Sometimes, the applicant is unable to obtain the two medical affidavits. The patient may be in denial or otherwise refuse to submit to a medical examination. There are cases which discuss the limited circumstances where a person can be ordered to submit to a medical examination for this purpose (which is in conflict with rights to personal autonomy). See for example Temoin v. Martin 2012 BCCA 250.

In the B.C. Supreme Court case of Re Binder (Patients Property Act) 2022 BCSC 990, the Court dealt with a different issue. The petitioner sought orders declaring his father incapable and appointing the petitioner as committee. The father lived in a care home in Switzerland. There was evidence that two Swiss medical professionals assessed the father, and concluded that he suffered from severe cognitive impairment, and increasing signs of dementia. They also noted that the father had a negative attitude about undergoing further examinations. One of the doctors concluded that the father had a “lack of capacity to judge the necessity of supportive measures”, and “capable of judgment” had a specific meaning under Swiss law. The petitioner had been appointed in Switzerland to manage his father’s assets.

The petitioner argued that there was a gap in the Patients Property Act for admitting evidence from foreign medical practitioners and recognizing foreign adult guardianship orders. Due to the circumstances, including the father being in Switzerland had the evidence of his resistance to undergoing further medical assessment, the petitioner had no meaningful way to obtain the two medical affidavits to meet the requirements of the Patients Property Act.

The Court agreed, and was satisfied that pursuant to its inherent parens patriae jurisdiction, it could make the declaration and appointment of the petitioner as committee.

This case is helpful authority for a person who has obtained an adult guardianship order in another jurisdiction, and seeks a committeeship order in British Columbia but is unable to obtain the two medical affidavits.

I have previously written about the issue of applications to remove co-trustees or co-executors. On occasion, applications are also made to remove attorneys named in a power of attorney or representatives named in a health care representation agreement.

In Stockall (Re) 2023 BCSC 437, the donor was 93 and suffered from a number of medical ailments including advanced dementia. He had six children, and he named two of his daughters as his attorneys under an enduring power of attorney, and health care representatives under a health care representation agreement. The two sisters sought to remove each other.

There was a great deal of conflict between the two sisters, and they were described as “bitterly divided.” There was disagreement on issues relating to the care that each of them provided for their father, whether their father’s home should be sold to finance his care and where he should live, accounting of spending of their father’s monies, and alleged alienation of their father.

The Court held that the present arrangement of both parties acting as attorneys and representative could not continue. The Court held that the circumstances were analogous to a hearing to appoint a committee (a person to manage the affairs and care of an incapable person). A committeeship application requires affidavits from two physicians confirming that the patient is incapable, which could not be obtained in this case (otherwise the daughters likely would have applied to be committee instead).

The considerations for the selection of an appropriate committee include the following non-exhaustive list:

1. whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;
2. whether immediate family members are in agreement with the appointment;
3. 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;
4. the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
5. the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
6. whether the proposed committee will provide love and support to the patient;
7. whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
8. 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;
9. who is best to advocate for the patient’s medical needs;
10. 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
11. 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, or would such a division be less than optimal for the patient.

The Court in Stockall considered all of the facts, including the allegations made by each sister, and the care provided by each of them so far. The Court observed that one of the sisters had more support from other family members, and it was likely that this sister would at least continue to consult and communicate with the siblings who supported her position (who form a majority).

While it was not possible to give effect to the father’s desire to have both daughters continue to act, he did express his preferred care arrangement when he entered into a private care agreement with one of his daughters. This was given considerable weight. The only way to give that agreement practical effect was to make the daughter with who he made the agreement the sole attorney and representative. The other daughter was removed.

The daughter that was removed had also failed to advise the court that her father had been hospitalized, which was an “obviously relevant circumstance.” This was described as showing extremely poor judgment, deceptive and akin to a breach of fiduciary duty.

Just like a decision to name more than one person to act together as an executor or a trustee, care must be taken when selecting attorneys and representatives who can work together.

Often, a family will be in agreement that one of their members is incapable, but they will not agree as to who ought to be appointed as committee to handle that person’s affairs. The Court is often asked to decide between competing committeeship petitions – two (or more) people seeking to be appointed to manage the affairs and decision-making for the incapable family member (the “patient”). A very common scenario is one in which two siblings cannot agree as to who ought to be appointed as committee for an elderly parent. The Court will often observe that all parties love and want the best for the patient. They just disagree on what is “best.”

This was the case in the recent decision of the B.C. Supreme Court in Srikureka v. Srikureja 2022 BCSC 514. The patient was 85 years old and suffered from Alzheimer’s disease. She had seven children. Two of the children sought to be appointed as committee in place of the Public Guardian and Trustee (and they opposed each other’s petitions). One applicant child had the support of one other sibling. The other applicant child had the support of three other siblings.

The choice of committee is highly fact specific.  However, the following considerations are often taken into account in the assessment of the patient’s best interests:

1. whether the appointment reflects the patient’s wishes, when he or she was capable of forming such a wish;
2. whether immediate family members are in agreement with the appointment;
3. 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;
4. the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
5. the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
6. whether the proposed committee will provide love and support to the patient;
7. whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
8. 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;
9. who is best to advocate for the patient’s medical needs;
10. 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
11. 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, or would such a division be less than optimal for the patient.

The Court had to consider who should act as the committee of the patient’s estate (i.e. financial affairs) and the patient’s person (other decision-making).

Interestingly, the Court concluded that the Public Guardian and Trustee should remain as the committee of the patient’s estate. This was because neither of the children seeking to be committee had clearly distinguished between their personal funds and assets belonging to the patient. There was the possibility that upon further investigation, one or both of them owe the patient money, which would result in a conflict of interest if one of them was appointed as committee.

With respect to the committee of the patient’s person, the Court went through each applicable factor, and made a decision as to which child ought to be appointed. Certain factors supported each of the two children. One child had the support of more of the other siblings and was a medical doctor, but he lived out of town.  The other had cared for the patient in her home for over four years and was in town and better available to meet in person with doctors and caregivers. Both would have offered love and support to the patient.

Ultimately, the Court appointed the child who lived in town and had more than four years of recent experience caring for the patient in her home. The Court did impose conditions on the appointment, which included consultation and communication with the committee’s siblings.

I have previously written about committeeships.  All adults are presumed to have legal capacity over their personal care and finances, unless the contrary is demonstrated.  On hearing an application under the Patients Property Act, the court may declare a person incapable and appoint a committee to manage a person’s care, finances, or both.  The application must be supported by the affidavits of two medical practitioners setting out their opinion that the person is incapable.

But what if the proposed patient disputes that they are incapable and opposes the application?  What if they refuse to submit to medical examinations and so the person making the application cannot obtain the two affidavits that are required?

This issue is arising with greater frequency.  I have previously written about the issue of attempting to force a person to undergo a medical assessment here.

The B.C. Court of Appeal recently considered this issue again in Cepuran v. Carlton 2022 BCSC 76.

The respondent (Sheri) was the only surviving child of the appellant (Ana).  When Ana’s husband died, Sheri became concerned about her mother’s health.  She observed strange and inconsistent behavior.  Ana became concerned that Sheri was becoming too controlling over the management of her affairs.  Sheri took steps to protect her mother’s interests using a power of attorney, including transferring her mother’s interests in certain properties into a trust.  Ana signed a revocation of the power of attorney.

Sheri applied to be appointed as committee to manage Ana’s affairs.  Ana opposed this.

Sheri relied on two affidavits from medical practitioners.  Neither of the doctors actually met Ana.  Instead, they were instructed to accept as true the descriptions of Ana’s behaviour, as provided by Sheri and other witnesses.

The chambers judge ordered that:

1. there be a trial of the issue of whether Ana is incapable of managing her affairs; and
2. Ana be required  to submit to examinations of her capacity by two geriatric psychiatrists.

Ana successfully appealed both of these orders.  As a result, the petition to appoint a committee of her affairs was dismissed.

The Court of Appeal held that it was not enough that the judge was of the view the evidence raised a “serious issue” as to capacity.  Sheri failed to provide the required two medical affidavits (a “threshold” requirement for a committeeship order), and so there was no basis for making the order.

The Court was also asked to consider whether the requirement for two affidavits from medical practitioners carries an implicit requirement that the physicians providing the opinions must in all cases personally meet with and assess the person whose capacity is being questioned.  In the Court’s view, it is best to leave the admissibility and weight of the medical opinions to be determined by judges on a case by case basis.  This leaves open the possibility that an applicant may successfully rely upon an affidavit sworn by a medical practitioner who hasn’t actually met the patient.

This is another recent example of a court recognizing personal autonomy and the intrusive nature of compelling an individual to undergo a medical examination against their will.  The courts fully prepared to enforce the strict requirements for a committeeship order.

I previously wrote about the B.C. Supreme Court decision in Hambleton (Litigation Guardian of) v. Hambleton 2021 BCSC 1155. In Hambleton, the Court refused to grant an order sought by a daughter that her mother attend a more extensive medical capacity evaluation. My previous post on the decision can be found here: https://www.bcestatelitigation.ca/case-comment/b-c-case-comment-alleged-victim-of-elder-abuse-not-forced-to-undergo-further-mental-capacity-assessment/

The daughter took the position that her mother suffered from severe dementia, and that she lacked capacity to make decisions regarding her financial affairs and was subject to undue influence by her other daughter. The mother retained her own lawyer and applied to strike the action which was brought in her name by her daughter (and to remove her daughter as litigation guardian).

The Court was satisfied that a less extensive assessment of the mother was adequate. It is an invasion of an individual’s rights to require them to undergo a mental capacity assessment, and the court should not make such an order without sufficient evidentiary basis for doing so. In this case, the mother had obtained an assessment to address the Court’s concern about capacity, and requiring her to undergo a further mental capacity assessment would not be appropriate.

The daughter appealed the result. The appeal has not yet been heard. However, pending the appeal the daughter applied for a stay of proceedings – an order that nothing happen in the underlying litigation until the appeal has been heard.

The Court of Appeal dismissed the application for a stay of proceeding.  The reasons can be found here: https://www.bccourts.ca/jdb-txt/ca/21/03/2021BCCA0377.htm.

The Court observed that the merits of appeal were “extremely low.” The order of the court below was a discretionary one, entitled to deference. It also would not bind the judge who ultimately would hear the application to remove the daughter as litigation guardian.

The Court also looked at irreparable harm and the balance of convenience. These factors favored the mother. She was currently a party to litigation that she wanted no part of, brought ostensibly on her behalf of by her daughter, who she does not want to represent her as litigation guardian. The mother’s personal autonomy was in the balance, and she was over 90 years old. To order a stay and keep the mother in the ligation until this issue was determined would cause her “much harm.”

This decision is another example of the courts protecting personal autonomy and the presumption of capability.

In B.C., a proceeding brought by a person under legal disability must be started by his or her litigation guardian. This often arises in the context of alleged elder abuse. A loved one may seek to remedy an incident of elder abuse (for example, undue influence), by bringing an action on behalf of the victim. However, what if the alleged victim of elder abuse denies the undue influence or other abuse, and does not want a claim to be brought on their behalf? This can be further complicated when the loved one bringing the claim on behalf of the victim ultimately benefits if that claim is successful (for example, by receiving part of the victim’s estate upon their death).

If the alleged victim insists that they have capacity to decide whether they want/need to bring a claim, and the loved one insists that they lack capacity, can the court order a medical assessment?

This was recently considered by the B.C. Supreme Court in Hambleton (Litigation Guardian of) v. Hambleton 2021 BCSC 1155.  In Hambleton, a daughter took the position that her mother suffered from severe dementia, and that she lacked capacity to make decisions regarding her financial affairs and was subject to undue influence by her other daughter (Alice).

The mother transferred title to her property to herself and Alice, and took out a reverse mortgage. Her daughter started an action, on behalf of her mother, seeking to challenge and set aside the transfer. The mother said she was capable of making her own decisions, and said that the transfer was consistent with the terms of her will made back in 2010 (where there was no suggestion of lack of capacity). The mother retained her own lawyer and applied to strike the action which was brought in her name by her daughter (and to remove her daughter as litigation guardian).

The Court had previously ordered that the mother attend a mental capacity examination at a time and place to be arranged by her care center, before any further steps were taken in the litigation. While there is a presumption that a person is capable, there was some medical evidence from 2015-2016, which indicated that the mother suffered a mental health event and was involuntarily committed to a facility. There was a gap in the evidence as to whether the mother was capable, which needed to be addressed with a medical assessment.

The mother did not arrange with her care facility to attend a medical assessment as ordered. Eventually, she was discharged from that facility. Instead, the mother unilaterally attended an assessment with a geriatric psychiatrist. The doctor concluded that the mother had mild cognitive impairment but was capable of personal financial decision making, and had testamentary capacity to sign legal documents.

The daughter took the position that the doctor’s assessment was inadequate, and sought an order that her mother undergo a more extensive medical capacity evaluation.

The Court was satisfied that the assessment was adequate. It is an invasion of an individual’s rights to require them to undergo a mental capacity assessment, and the court should not make such an order without sufficient evidentiary basis for doing so. In this case, the mother had obtained an assessment to address the Court’s concern about capacity, and requiring her to undergo a further mental capacity assessment would not be appropriate. It would be stretching the court’s parens patriae jurisdiction (the Court’s powers to make orders protecting persons under disability or potential disability) too far.

As a result, the mother had established that she had the requisite capacity, and she could proceed with her application to remove her daughter as litigation guardian (and presumably with her application to strike the claim that her daughter brought on her behalf).

A competent adult can deal with their assets during their lifetime as they see fit, and there is a presumption of competency. A court will only order a mental capacity assessment in extraordinary circumstances. A court will certainly not order an assessment as a matter of course when there are allegations of undue influence or elder abuse. This case also serves as a reminder that care needs to be taken to ensure someone is actually under a legal disability before a claim is brought on their behalf (especially when they are opposed to taking the action).

When cases of elder abuse arise, it is often a loved one who discovers alleged financial abuse, improprieties, or undue influence. But the loved one does not have standing to bring their own claim to recover assets for the rightful owner. The elderly person (the victim) must bring their own claim. Sometimes this creates difficulties. This person may lack capacity, or they may still be under the influence of the perpetrator of the fraud or otherwise unwilling to bring legal proceedings. What if a person is unable or unwilling to bring a proper and valid claim to recover their own property?

A proceeding can be filed and pursued on the person’s behalf by a litigation guardian, but only if the person is under a legal disability. A proceeding brought by or against a person under a legal disability must be started or defended by a litigation guardian – someone who agrees to conduct the litigation on behalf of the person with the legal disability. The test for a “legal disability” is whether the person is capable to instruct counsel and to exercise judgment in relation to the claims in issue and possible settlement as reasonable person would be expected to do. A person is presumed capable unless proven otherwise. If the person is capable, then they are the appropriate person to bring their own legal proceedings, unless there is a power of attorney or some other authority that would permit a third party to handle proceedings on their behalf.

What if you have knowledge of a case of financial abuse against a person under a legal disability, but the “victim”  does not want to bring a claim, and does not agree that they suffer from a legal disability? This was the issue in Stanford v. Murad 2021 BCSC 130, a decision of the B.C. Supreme Court released last week.

Mr. Stanford is 89 years old, and has two adult children who are the primary persons who will inherit their father’s estate upon his death. Mr. Stanford suffered from psychiatric disorders, including depression, for decades. He also suffers from other serious health issues and is unable to care for himself. In 2013, Mr. Stanford appointed his son-in-law as attorney-in-fact and executor of his will, and asked him to manage his affairs.

Mr. Stanford met the defendant in 2015, and they eventually moved in together. It is unclear whether they actually married, but Mr. Stanford was very dependent on the defendant. His daughter and her husband (Mr. Stanford’s son-in-law) allege that the defendant isolates Mr. Stanford and prevents them from seeing and communicating with him, that she is abusive, and that she is taking financial advantage of him. They allege that Mr. Stanford lacked capacity to take various steps, including appointing the defendant as his new power of attorney, adding her as a joint owner of various assets (including real property) and transferring monies to the defendant.

The daughter and son-in-law caused a lawsuit to be filed on behalf of Mr. Stanford, with the son-in-law as litigation guardian, seeking an accounting and tracing of all property transferred to the defendant.

Mr. Stanford sought to set the appointment of his son-in-law as litigation guardian. He does not agree that he is under a legal disability, and he does not want his son-in-law challenging the transfers and other arrangements that he has made with the defendant.  In other words, he denies that he is a victim of elder abuse, and he says that he has the capacity to make that decision.

The Court held that the evidence raised significant concerns about whether Mr. Stanford is under a legal disability. The Court ordered that Mr. Stanford attend a medical examination conducted by a doctor chosen by the son-in-law for the purpose of providing an opinion to the Court regarding whether Mr. Stanford is capable of instructing counsel and exercising judgment in relation to the claims and possible settlement.

If upon reviewing the medical opinion the Court determines that Mr. Stanford has the requisite level of capacity, then he can make the decision not to move forward with court proceedings against the defendant.  While Mr. Stanford remains capable, his daughter and son-in-law will not have standing to advocate and protect his assets by way of court proceedings brought on his behalf.