A growing area in estate litigation is committeeship applications. A committee is a person or institution who is appointed to make personal, medical, legal and/or financial decisions for an adult person (the patient) who is mentally incapable and cannot make those decisions for him or herself. The first stage in the application process is determining on the medical evidence whether the person is incapable. The second stage concerns who ought to be appointed as the person’s committee.
The need for a committeeship may be limited where proper advanced planning is done. Various documents may be prepared by a capable adult in the event that he or she becomes incapable. These documents include an enduring power of attorney (“POA”), representation agreement (“RA”) and an advance directive. As well, a nomination of committee (“Nomination”) can potentially assist the Court when determining who should be committee.
In the recent case of a href=”https://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1517/2016bcsc1517.html” target=”blank”>Uragi, 2016 BCSC 1517, there was no dispute that Mrs. Uragi was incapable based on the medical evidence. Thus, Mrs. Uragi was a patient. The main issue concerned the selection of the committee and the Court was called upon to decide who ought to be appointed as Mrs. Uragi’s committee of person and estate – her longtime friends, the Itos, or her niece from Japan, Ms. Yoshimura.
The Itos agreed to the appointment of the PGT as Mrs. Uragi’s committee of person but Ms. Yoshimura would not unless the Court authorized her application to take Mrs. Uragi to Japan to be cared for until her death or adjourned the matter so PGT could investigate her plan. The issue of who should be Mrs. Uragi’s committee of estate also needed to be decided.
Mrs. Uragi had been in Canada since 1975. Her husband had predeceased her and she had no children or family in Canada. The Itos were longtime business associates and maintained a close relationship with Mrs. Uragi even after her husband passed away. In 2003, she executed a POA, Representation Agreement and Nomination in favour of the Itos. During Ms. Yoshimura’s visits form Japan, she became more involved in Mrs. Uragi’s life. Various conflicts arose between the Itos and Ms. Yoshimura as a result.
The applicable legislation, the Patients Property Act (the “Act”) does not provide any criteria for the selection of an appropriate committee. The test for selecting a committee is what is in the patient’s best interests. In analyzing this, the Court considers the following factors:
- the best interests of the patient and the patient’s family;
- the patient’s wishes with regard to the identity of the committee;
- the adult’s autonomy and dignity;
- the adult’s idiosyncrasies and the way she chose to live her life while capable;
- the proposed committee’s:
- previous involvement with the patient or the family;
- knowledge and understanding of the patient’s situation and needs;
- level of experience or capability in performing the duties of a committee;
- plan or scheme for the management of the patient;
- any potential conflict of interest between the proposed committee and the patient; and
- the effect on the patient of any conflict among family members.
Where the patient has executed a Nomination, the Court must appoint the nominee as Committee “unless there is a good and sufficient reason for refusing the appointment”. In addition, the Act does not specify a priority scheme for the appointment of a Committee, but the Courts have found that, all things being equal, a family member of the patient for whom the committee is being appointed should be appointed as opposed to an outsider. This is the case unless it is not in the patient’s “best interests”. Mrs. Uragi had executed a Nomination in favour of the Itos but the Court declined to appoint them. The Court also declined to appoint the Niece.
The Court was concerned that due to the deep distrust between the proposed committees, appointing one party to the exclusion of the other would destroy one of the two most important relationships in Mrs. Uragi’s life. Ultimately, the Court appointed the PGT as the committee of Mrs. Uragi’s person and estate which is somewhat unusual where others are prepared to act as committee but not unusual where the conflict between willing committees is so great as to potentially upset the patient given the best interests test.
Of note, the Act will be replaced in the future with provisions under the Adult Guardianship Act and in the latter statute, the Court has the ability to divide duties and responsibilities if more than one guardian (currently called a committee) is appointed. It will be interesting to see how this provision is applied in situations like Mrs. Uragi’s where more than one person is willing to be committee but those people have conflicts with each other.