Proving Incapability for a Committeeship Application in British Columbia

If an adult can no longer manage their affairs, a family member or friend may think about applying to be their committee. The hardest part is usually proving incapability to the court's satisfaction. Adults are presumed capable of making decisions about their personal care, so the evidence matters.

This article explains the medical evidence and supporting documents a committeeship application needs in British Columbia, who must be told, and what other routes exist. It is general information, not advice on your case.

This article covers the law of British Columbia.

What committeeship is and when it is used

A committee is a person appointed under the Patients Property Act to act for an adult declared incapable. The court may appoint any person as committee, and while no other committee is appointed the Public Guardian and Trustee is the committee of the patient.

The Public Guardian and Trustee describes committeeship as the most intrusive option for dealing with an adult's financial affairs. It says a committee is needed only as a last resort, after other options have been explored. A committee of person, for personal and health care matters, can only be appointed by court order.

The medical evidence the court needs

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 practice this means two sworn affidavits from medical practitioners, not informal notes or a single letter. A private application must include affidavits from two medical practitioners.

Ask each practitioner to address the specific question the court decides: whether the adult is incapable of managing their affairs, themselves, or both. A lawyer can help you frame that request, since what is needed can depend on the facts.

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.

The other documents in the application

The affidavits from two medical practitioners are only one part of what a private committeeship application must include. A private committeeship application must include a petition to the court and an affidavit of kindred and fortune for each applicant, covering the adult's family, assets, income, expenses and liabilities.

• A petition to the court.
• Affidavits from two medical practitioners.
• An affidavit of kindred and fortune for each applicant, covering the adult's family, assets, income, expenses and liabilities.

A nomination also matters. When the Public Guardian and Trustee reviews an application, it considers whether the adult signed a nomination of committee. If the patient 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.

Notice, review and costs

Notice of the application must be served personally on the person who is the subject of it, not less than 10 days before the hearing. The court may dispense with that service only if satisfied that service would harm the adult's health or would otherwise be inadvisable. Written notice must also go to the Public Guardian and Trustee and 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, 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.

These fees can change, so confirm current amounts before you apply. Costs of medical affidavits and bonds vary and are worth asking about early.

Other routes and what to do next

A different process exists for property only. Under Part 2.1 of the Adult Guardianship Act, a health authority designate may issue a certificate of incapability after a qualified health care provider's assessment, and the Public Guardian and Trustee then becomes the adult's statutory property guardian. That does not apply if a committee under the Patients Property Act already manages the adult's affairs. A certificate of incapability makes the Public Guardian and Trustee committee of estate only. The adult, or someone acting for them, may request a second assessment.

• Check whether the adult signed a representation agreement, power of attorney or nomination of committee.
• Ask two medical practitioners whether they can provide affidavits on incapability.
• Gather information about the adult's family, assets, income, expenses and liabilities.
• Speak with a lawyer about notice, the proposed committee and the Public Guardian and Trustee's review.

Frequently asked questions