Unless there is strong and compelling evidence that clearly demonstrates that a Committee is not acting in the best interests of a mentally incapacitated adult, the Courts are unlikely to second-guess decisions made by the Committee (sometimes also known as the legal guardian or conservator).
If you are not sure about what might constitute “strong and compelling evidence that clearly demonstrates that a Committee is not acting in the best interests of a mentally incapacitated adult,” or if you have examples of such evidence and need one of our lawyers to act for you and your loved one on an urgent basis, please give us a call or contact us via email today.
Powers of a Committee – Confirmed in Recent British Columbia Supreme Court Decision.
When a person has become mentally incapable of managing his or her affairs, including decisions made about the provision or withdrawal of healthcare, as well as decisions about the management of personal finances, the Court may appoint a person to protect the interests of and make decisions on behalf of the adult who is deemed mentally incapable.
Sometimes people think of this person as the Legal Guardian or Conservator of the mentally incapable person, however, in British Columbia, the legal term for the person appointed to manage the affairs of the mentally incapable adult is called a Committee.
The Patients Property Act, (the “PPA”), is the provincial law that gives the Supreme Court of British Columbia the authority to appoint Committees.
There are two types of Committeeships:
Committee of Estate
Committee of Person
A Committee of Estate is different from an Executor or Administrator of an Estate. A Committee administers the ongoing financial affairs of someone who is alive as if that person will recover and resume managing his or her own affairs, whereas an Executor or Administrator is responsible for distributing the estate of someone who has died according to that person’s wishes as expressed in a Will and/or the applicable laws.
Source: http://www.trustee.bc.ca
Mental incapacity can occur for many reasons, but a common situation occurs when an adult is involved in an accident that results in serious brain trauma that results in a “permanent” coma or some other form of minimal or negligible consciousness. Of course, a Committee may also be appointed in many other circumstances, whenever an adult is adjudicated to have an extreme mental deficiency.
Sometimes disputes may arise as to the soundness of a Committee’s decisions. Other family members of the mentally incapacitated adult may disagree with the decisions that have been made. In the recent decision of Ng v Ng (2013 BCSC 97), the BC Supreme Court was asked to rule on the authority and finality of a Committee’s decisions – in this case the decision to remove life support in the form of feeding and fluid tubes.
Ultimately, the Court found that unless there is compelling evidence of extreme mismanagement, neglect, or actions that are clearly in contravention of the best interests of the mentally incapacitated adult, a Committee’s decisions are generally binding, final, and non-appealable.
As the Court noted in its decision:
[1] Kenny Ng, his wife, Lora Ng, and their three children were involved in a tragic motor vehicle collision in Washington State on September 9, 2005. The eldest son was killed in this collision. Kenny suffered a profound and irreversible brain injury. Lora and the two younger children suffered physical and emotional injuries.
[2] Kenny has lived in a minimally conscious state since the collision. At the time of the collision, he was 49 years of age. He is now 56 years old.
[3] Lora was appointed as Kenny’s committee in 2006, with the full consent of Kenny’s siblings and parents…
[4] In the summer of 2012, Lora made the decision to instruct Kenny’s caregivers to remove him from life support by removing his feeding and fluid tubes.
[43] According to the PPA, Lora as the court-appointed committee has the powers defined under s. 15 of the PPA. I note that there are no relevant restrictions on Lora’s powers as a committee.
[44] The HCCFA entitles her as a personal guardian (and committee) to make decisions concerning the provision of health care to Kenny, enumerated in s. 4. Also, she can refuse the provision of health care in accordance with s. 12(3).
[45] The statutory provisions clearly empower Lora to direct Kenny’s care team to withdraw his feeding and fluid tubes provided, of course, she is acting in Kenny’s best interests.
[46] In framing the issues, [the other family members], suggest that the decision about Kenny’s health care or the withdrawal of it is this Court’s decision. With respect, it is not. My decision addresses whether there is a basis to conclude that Lora is not acting in accordance with her obligations as a committee, specifically whether she is acting in the best interests of Kenny.
In this particular case, the other family members made the argument to the Court that if there is a legitimate concern among them about the decisions being made by the Committee, then the Committee is under an obligation to defend his or her decisions and that it is up to the Court to adjudicate their validity. (Much in the same way a board of directors must be accountable to its shareholders. In fact, the other family members used this exact analogy).
The Court strongly disagreed with this assertion, and noted as follows:
[63] Lora says there is no authority for [the other family members] assertion that there is a reverse onus if there is a conflict alleged against a committee… that reliance on the duties of a director to the company is not analogous to these circumstances: it does not have a useful framework for consideration of a committee’s position under the PPA or the HCCFA. Indeed, as Lora points out, if a mirror “prima facie inference” of a breach of fiduciary obligations applies in these circumstances, any disagreement which anyone has with a court-ordered committee would create an unwieldy problem in the administration of the PPA. It would affect the security of a committee and require him or her to use funds from the estate to demonstrate that he or she is not in breach of the fiduciary duty.
[64] The Public Guardian and Trustee takes the same position.
[65] I reject [the other family members] position that there is an onus on Lora to demonstrate that she is not in breach of her fiduciary duty.
[66] Lora and the Public Guardian and Trustee assert, correctly in my view, that [the other family members] argument that Lora bears the onus of demonstrating that she has not breached her responsibilities as trustee is not sound. There is simply no authority for this proposition. The reliance on authority describing the duties of directors of a company to their company is unhelpful. I agree with Lora that to find a reverse onus for establishing whether a court-appointed committee is carrying out his or her duties would be unwieldy and cause the position of the trustee to be constantly insecure. The appointment of a committee is not honourific; it is an appointment with serious responsibilities and duties, and at times it bears grave consequences. These responsibilities are governed by a complete legislative scheme, underscoring the importance of these duties in our society.
[78] In my view, Lora’s decision, supported by Dr. Namazi, is medically appropriate. Kenny has been in a minimally conscious state since September 2005. It cannot be said that Lora is acting irrationally or without proper consideration.
[79] In respect of the criticism of her motives, that Lora is driven by self-interest, I also disagree. Lora and the children’s claim on his estate is no different than it was before Kenny was injured. It cannot be argued that Lora and the children will have emotional relief. They will be relieved from observing Kenny struggle, but they must still face the consequences of his death.
[80] [The other family members], simply disagree with Lora’s decision. They have not provided any cogent reason to rescind Lora’s appointment as a committee. Lora is the proper person to make the decision and she has the authority to do so.
Thus, unless there is strong and compelling evidence that clearly demonstrates that a Committee is not acting in the best interests of a mentally incapacitated adult, the Courts are unlikely to second-guess decisions made by the Committee.
If you are not sure about what might constitute “strong and compelling evidence that clearly demonstrates that a Committee is not acting in the best interests of a mentally incapacitated adult,” or if you have examples of such evidence and need one of our lawyers to act for you and your loved one on an urgent basis, please give us a call or contact us via email today.
We are also available to assist in an initial application for the appointment of a Committee and to discuss any of your concerns that may arise. The experienced Vancouver, Surrey, Kelowna, and Fort St John Family Law and Estate Litigation lawyers of the MacLean Law are here to help.
Some of the relevant excerpts of the PPA referred to by the Court are noted below:
Powers of a committee>
15(1) Subject to section 16,
(a) the committee of a patient as defined by paragraph (a) of the definition of a patient in section 1 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 of mind, and
(b) the committee of a patient
(i) declared to be incapable of managing his or her affairs 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 of mind,
(ii) declared to be incapable of managing himself or herself has the custody of the person of the patient, and
(iii) declared to be incapable of managing himself or herself or his or her affairs 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 of mind, and as well the custody of the person of the patient.
Rights, powers, and privileges included
17 The rights, powers and privileges vested in the committee include all the rights, powers and privileges that would be exercisable by the patient as a trustee, as the guardian of a person, as the holder of a power of appointment and as the personal representative of a person, if the person was of full age and of sound and disposing mind.
Exercise of powers.
18 A committee must exercise the committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.
