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Lorne MacLean, QC, MacLean Law, Vancouver

Our Vancouver Patients Property Committee Lawyers know that with the increasing prevalence of dementia amongst our BC elderly population, families often have to deal with an aging parent who becomes incapable of managing his or her financial affairs, or even of himself or herself. In today’s blog, Vancouver articled student, Fraser MacLean, explains what the law is for putting someone in charge of an aging parent’s finances.

Our Vancouver Patients Property Committee Lawyers advise clients that the BC Patients Property Act provides the legal framework and procedures for appointing a “committee” to be responsible for the person declared to be incapable.

Who Should Be In Charge Of The Infirm Parent’s Assets and Income?

However, adult children often have different ideas about how to take care of an aging parent. What to do about mom’s house and personal property? Who is more able to take care of dad and look out for his best interest? These disputes can easily create tension among siblings if not break the family apart. Our Vancouver Patients Property Committee Lawyers can assist in resolving these emotional issues. Contact us across BC in Vancouver, Surrey, Richmond, Kelowna and Fort St John and in Calgary, Alberta OR CALL 1-877-602-9900 TOLL-FREE.

Vancouver Patients Property Committee Lawyers 604-602-9000

Our Vancouver patients property committee lawyers can offer help in resolving such a highly contested dispute.  The recent case of Balducci v. Valeria provides a good example of what the Court considers when deciding which adult child should be appointed as the committee for the aging parent.

In Balducci v. Valeria, a brother and a sister are fighting over who should be appointed to be the committee of their 92-year-old mother. The two siblings have a Power of Attorney authorizing them to deal with her financial affairs. The sister started to suspect the brother when there was a late payment on the bill for the mother’s residential care home. She applies to the court to be the committee of their mother, claiming that the brother has been mismanaging their mother’s fixed income and that he is a freeloader staying in the mother’s house rent-free with his common-law wife.  The brother says there’s no mismanagement and applies to become the committee on the basis that he and his common-law wife are the ones who have visited the mother the most often and offered her emotional support. The Court has to decide whether the sister or the brother gets to be the committee.

Vancouver Patients Property Committee Lawyers – New Case Sets Out The Rules For Clients

Our Vancouver patient committee lawyers have selected the crucial judicial reasoning in the following excerpt:

[36]         The factors to consider in selecting an appropriate committee were summarized in Stewart (Re), 2014 BCSC 2321 at paras. 29 and 30:

[29]      As has been observed in other cases, the Act does not prescribe criteria for the selection of an appropriate committee.  However, cases have identified various considerations … They include:

(a)        whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b)        whether immediate family members are in agreement with the appointment;

(c)        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;

(d)        the level of previous involvement of the proposed committee with the patient, usually family members are preferred;

(e)        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;

(f)         whether the proposed committee will provide love and support to the patient;

(g)        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;

(h)        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;

(i)         who is best to advocate for the patient’s medical needs;

(j)         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

(k)        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.

[30]      The above listing is of course non-exhaustive or in any particular order.  The inquiry is fact specific and a particular factor may or may not be applicable and may attract different weight depending on the circumstances of a case.

[37]         The paramount consideration is the best interests of the patient. In Reisinger (Re), [2002] B.C.J. No. 3162 (S.C.), the court said at para. 30:

[30]      In deciding whom to appoint as a property guardian, the Court will consider a number of factors: The paramount consideration is the patient’s best interests. Preference is usually given to members of the patient’s family, subject to the best interests of the patient. The Public Trustee will usually only be appointed where the Court finds that no other applicant is suitable. While the Court will consider the patient’s own preference as to an intended appointee, the Court must exercise care in giving weight to such expressed wishes where the patient suffers from a mental infirmity. The Court will consider the proposed committee’s previous involvement with the patient and her affairs, his or her knowledge and understanding of the patient’s situation and needs; and his or her level of expertise and ability to perform the duties of a committee. Finally, the court must consider whether the proposed committee has or may have a conflict of interest with the interest of the patient. (see Robertson G.B., Mental Disability and the Law in Canada, 2d ed. (1994), pp. 43-52.)

[Emphasis added]

[38]         As was pointed out in Vranic (Re), the “best interests” test is one with which the court is familiar in relation to issues concerning children, but additional considerations arise in its application when making an order that has such a far-reaching effect on an adult’s liberties. The court said at para. 92:

[92]      For sound reasons, that standard quite properly reflects the protective approach of the court in dealing with matters which affect children.  Although the test by the same name applies in considering the appointment of a committee for a mentally incapacitated adult, its application requires a more nuanced approach which acknowledges and takes into consideration issues concerning the adult’s autonomy, his personal dignity, his idiosyncrasies and the way he has chosen to live his life while capacitated.  It also takes into account most assuredly any wishes he has validly expressed while mentally competent or lucid about who he would like to act as his committee or otherwise make decisions on his behalf.

In the end, the Court decided in the brother’s favour. But our Vancouver patient property committee lawyers know that the crucial principle, in this case, is the Court’s emphasis on the autonomy, dignity and personal preferences of the person declared to be incapable, which is different from the “best interest of the child” test in custodial and parenting disputes.  Click here for a committee handbook.

The challenges facing any family in which an aging parent loses his or her capacity and autonomy can be daunting and disruptive.  Disagreements among adult children often develop into entrenched dissension and conflict that requires judicial intervention. On top of the emotional upheaval, you will need to face complex legal issues that will have a direct impact on the well-being and dignity of your loved ones for the remainder of their lives. 

Our Vancouver patient property committee lawyers at MacLean Law will be by at your side every step of the way. Call MacLean Law at 604-602-9000 for an initial consultation.