- The court must declare a person incapable if it is satisfied on the affidavits of 2 medical practitioners.
- The person must be personally served at least 10 days before the hearing, unless the court finds service would harm them or be inadvisable.
- The Public Guardian and Trustee calls committeeship a last resort, so other options are usually looked at first.
When an adult can no longer manage their money or property and has no working power of attorney or representation agreement, a family member may consider applying to be the adult's committee. The first hurdle is proving, with proper evidence, that the adult is incapable.
This article explains the medical evidence, the supporting documents and the notice steps involved in British Columbia. Every case is different, so treat this as a map of the process and not a substitute for advice on your own file.
This article covers the law of British Columbia.
What the court must be satisfied of
Committeeship applications are made under the Patients Property Act. The court must declare a person incapable of managing their affairs, themselves, or both if, after hearing the application, it is satisfied on the affidavits of 2 medical practitioners.
In other words, incapacity is decided by the court on the medical evidence put before it, not by a family member's view alone. How this applies depends on your situation, so it is worth confirming with a lawyer.
A person who is declared incapable by a judge becomes a "patient" under the Act.
The documents that make up an application
A private committeeship application must include a petition to the court, affidavits from two medical practitioners, and an affidavit of kindred and fortune for each applicant. The affidavit of kindred and fortune covers the adult's family, assets, income, expenses and liabilities.
- A petition to the court
- Affidavits from two medical practitioners about the adult's incapacity
- An affidavit of kindred and fortune from each applicant
- Information about the adult's family, assets, income, expenses and liabilities for that affidavit
- Proof that notice was served on the adult and on the Public Guardian and Trustee
Ask the doctors to address the specific question: can the adult manage their affairs, themselves, or both? Vague statements about a diagnosis are less helpful than a clear explanation of what the adult can and cannot do.
Notice, review and the Public Guardian and Trustee
Notice of the application must be served personally on the adult not less than 10 days before the hearing. The court may dispense with service on the adult only if satisfied that service would harm the adult's health or would otherwise be inadvisable.
Written notice must also be served on the Public Guardian and Trustee and on any existing committee at least 10 days before the hearing.
The Public Guardian and Trustee reviews the application. It considers whether the adult signed a nomination of committee, whether the medical evidence and the affidavit of kindred and fortune are sufficient, the choice and qualification of the proposed committee, whether both a committee of person and a committee of estate are needed, security such as bonding, and legal fees and costs. It then files a Response to Petition with the court.
If the adult or family disputes incapacity
If incapacity is in dispute, the court may direct an issue to be tried on whether the person is incapable. It may also order an examination by other medical practitioners, or by a board of 3 or more designated by the College of Physicians and Surgeons.
If the adult has made a written nomination of committee while of full age and sound mind, executed like a will, the court must appoint the nominee unless there is good and sufficient reason to refuse. Otherwise the court may appoint any person, and while no other committee is appointed the Public Guardian and Trustee is the committee.
| Route | Who decides incapacity | Covers |
|---|---|---|
| Court committeeship | A judge, on two medical affidavits | Affairs, the person, or both |
| Certificate of incapability | A health authority designate after a qualified health care provider's assessment | Property only; the Public Guardian and Trustee becomes statutory property guardian |
A certificate of incapability does not apply if a committee under the Patients Property Act already manages the adult's affairs. A committee of person, for personal and health care matters, can only be appointed by court order.
Costs, alternatives and next steps
The Public Guardian and Trustee describes committeeship as the most intrusive option for dealing with an adult's financial affairs and says a committee is needed only as a last resort, after other options have been explored. Think about whether a power of attorney, a representation agreement or a certificate could meet the need.
If you do proceed, the Public Guardian and Trustee has charged $525.00 ($500.00 plus 5% GST) to review a private committee application, and the Supreme Court petition filing fee is $200. There is no hearing fee for days 1 to 3. These amounts can change, so confirm them before filing.
- Gather the adult's financial information early, since you will need it for the affidavit of kindred and fortune.
- Find out whether the adult signed any nomination of committee, power of attorney or representation agreement.
- Speak with the adult's doctors about the kind of affidavit the court expects.
- Talk to a lawyer before filing, especially if family members disagree.
Frequently asked questions
How many doctors do I need to prove incapacity?
The court must declare a person incapable if it is satisfied on the affidavits of 2 medical practitioners. If incapacity is disputed, the court can order further examinations or direct an issue to be tried.
Does the adult have to be told about the application?
Yes, in general. Notice must be served personally on the adult at least 10 days before the hearing. The court can dispense with service only if it would harm the adult's health or would otherwise be inadvisable.
Can the adult later challenge the declaration?
A patient declared incapable by a judge may apply for a re-assessment at any time after one year from the order, or sooner with the court's leave.
Who becomes committee if no family member applies?
While no other committee is appointed, the Public Guardian and Trustee is the committee of the patient. The Public Guardian and Trustee acts as committee when no family or friends are willing or able.
Sources
- Patients Property Act, RSBC 1996, c. 349, s. 3(1) — bclaws.gov.bc.ca
- Public Guardian and Trustee of BC – Private committee legal submissions — trustee.bc.ca
- Supreme Court Civil Rules, B.C. Reg. 168/2009, Appendix C, Schedule 1 — bclaws.gov.bc.ca
- Public Guardian and Trustee of BC – Introduction to adult guardianship in B.C. — trustee.bc.ca
- Adult Guardianship Act, RSBC 1996, c. 6, s. 32 — bclaws.gov.bc.ca
- Public Guardian and Trustee of BC – Personal planning tools — trustee.bc.ca
- Public Guardian and Trustee of BC – Financial and legal decision making services — trustee.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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