This article refers often to the law of British Columbia but from time to time, distinguishing features of legislation from other provinces may be noted.

The focus of this article is the first inquiry of an adult guardianship case: is the person incapable? The next inquiry is written of elsewhere, see Adult Guardianship: Who Takes Care of Granny.

The care and management of an adult person otherwise unable to manage their own affairs, is the subject of legislation in each province.

In British Columbia, adults may predetermine “who and how” they want their affairs managed in the event of their subsequent incapacity.

They may do so as to their person by way of a representation agreement.

They may do so as to their financial affairs or assets by way of a representation agreement or a power of attorney.

British Columbia also has a Public Guardian and Trustee always ready to jump-in in the event of a vacuum with regards to the care or management of an incapable adult person.

But nobody ought to wish upon an adult person care and management by a bureaucrat. Well-intentioned though they may be, they are “Monday to Friday, 9-to-5-ers”, have no personal knowledge of the adult and can be very expensive.

walking chair The relevant provincial legislation, in British Columbia, for the judicial establishment of another person to take over the care and management of an incapable adult, is called the Patients Property Act (PPA).

The act is a relatively complex. This complexity is further exacerbated by the existence of related legislation such as the Power of Attorney Act, the Supreme Court Rules, Representation Agreement Act, the Healthcare (Consent) and Care Facility (Admission) Act as well as specific rules and regulations published by the government under the authority of the PPA.

In addition, PPA matters are always deeply personal and sometimes subject to intense emotions which, left to adversarial lawyers, can result in irreversible legacy troubles.

At the same time, PPA issues and applications ought only to be brought with the assistance of knowledgeable legal counsel.

Ensure that the legal counsel you retain these matters is capable of exercising the wisdom of Solomon and not going to, in any event, infect an already difficult family matter with lawyer sabre-rattling.

Further, the Public Guardian and Trustee has to be managed throughout the process. Litigants sometimes make the mistake of antagonizing the Public Guardian and Trustee, which usually ends up just making the application unnecessarily adversarial.

It is always a good idea to pre-nominate a guardian just in case, someday, you become incapable of managing your affairs or yourself.

In British Columbia, the PPA allows a pre-nomination but only if it is in the same form as if the document were a will; an anal-retentive requirement especially since the court is not bound by the pre-nomination and in any event, the court will appoint whichever person the court feels is most capable of acting in the best interests of the patient, even if that appointment is not the  patient’s nominee; this, since as stated in 1905 in now politically-incorrect words of Justice Davey in Re McLaughlin:

"This particular jurisdiction is one of peculiarity and difficulty. It exists for the benefit of the lunatic, and the guiding principle of the whole jurisdiction is what is most for the benefit of the unhappy subject of the application."

The first step in any PPA file is to determine whether or not the subject adult meets the definition of an incapable adult, which the PPA defines differently on separate occasions in the same statute.

At ¶1:

“... a person ... who is, because our mental infirmity arising from disease, age or otherwise, incapable of managing his or her affairs or himself or herself.”

At ¶2(1):

“... a person (who) ... because of mental infirmity arising from disease, age, or otherwise, or disorder or disability of mind arising from the use of drugs, (is) incapable of managing his or her affairs or incapable of managing himself or herself....”

§15(1) and 21 refers to “full age and of sound and disposing mind”.

Most people are not geriatric psychiatrists. The PPA recognizes this by requiring, as a prerequisite to any PPA application, affidavits of two registered members of the College of Physicians and Surgeons of British Columbia (i.e. two medical doctors) which opine that the alleged incapable adult is as defined above.

Obtaining these two affidavits is usually the second step in the process.

The third step is determining who ought to become a guardian.

Sometimes, family members disagree on this and the court has to resolve the issue. The court will always make his decision based on the best interests of the patient. A strong consideration will be the relationship between the adult and the proposed guardian.

All things being equal, the court will always prefer a family member over the Public Guardian and Trustee but as a precaution, the government requires, as set out in the PPA (¶7), that notice of any PPA application must be given to the Public Guardian and Trustee.Insanity quote box

A candidate-guardian is not disqualified simply because there might be a conflict of interest between his/her financial affairs and those of the incapable adult although, in the event of opposing applications, the court will strongly consider the scope of any potential conflict.

There is a unique form of evidence required in PPA applications. Generally, PPA applications are decided in Chambers, based on specialized affidavit evidence only, although the PPA, at ¶3(2), allows the court to refer an issue to the trial list (where it can then be presented in open court by way of witnesses).

Under certain circumstances, the court also has the authority to direct the adult to attend upon a member of the College of Physicians and Surgeons, thus compelling the adult to attend an examination as to their capacity.

The adult who is alleged to be incapable must receive notice of the application except that the PPA allows the applicant to be exempted from this requirement if the applicant guardian can provide persuasive evidence that “service on the person who is the subject of the application would be injurious to that person's health or would for any other reason be inadvisable in the interests of that person” (¶2(4)).

In my opinion, not serving the application on the alleged incapable adult ought to be rarely allowed by the court. However, it has been my experience that given the results of a PPA application and the complete disenfranchising of the adult, the courts far too often consent to dispensing with notice upon the alleged incapable adult. My suspicion is that the courts wish to avoid a scene in their courtroom where the adult appears, and may or may not be incapable, but with diminished faculties attempts to oppose this very personal application against them.

In any event, once declared to be a “patient”, the adult is bound to discover that he or she has been disenfranchised of all or most of their legal rights as a person. At that time, if in fact they are capable, he/she ought to be in a position to quickly make arrangements to vacate the PPA order against him. In fact, the PPA specifically allows the patient to apply to vacate the judicial declaration that they are incapable (¶4(1)).

The committee:

"... has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind."

Once appointed, a guardian is called “committee” even though it is usually just one person.

The committee becomes a trustee towards the “patient” and had fiduciary duties towards him/her which means that their interests must not conflict with the patient's interests.

The PPA requires that:

"... the Committee must exercise the committee's powers for the benefit of the patient and the patient's family."

The case law which has developed under the PPA has excluded some legal actions from the committee's arsenal such as writing or revoking a will for the patient, or changing the patient's name. Conversely, though, a committee may be able to commence divorce proceedings.

Making gifts from the patient's estate without prior court approval is extremely precarious and the committee that does so may find himself personally liable to repay that debt.

The court always retains supervisory powers over the work of a committee. If there is any doubt, a committee should always seek court approval before making any controversial decision with respect to the assets of a patient.

The committee is entitled to be paid for his or her time as well as have his or her expenses reimbursed from the patient's estate. It should never be done without advice from a knowledgeable lawyer as there are some timing issues and a unique form and process for the committee's accounts.

There are many other issues with respect to adult guardianship legislation in British Columbia which exceed the limitations of this legal information article such as, but not limited to, the impact of death of a committee or of the patient during the course of a PPA order, and the cross-relationship between PPA matters and a considerable number of related provincial statutes which, quite frankly, and even to legal counsel, present as hodgepodge, and the fast-tracking or certification of incapacity by designated mental health officers.

REFERENCES AND FURTHER READING:

• Return to Duhaime.org's Elder Law Centre.