Introduction to Adult Guardianship ‘Frameworks’
Adult guardianship in BC involves two separate approaches or ‘frameworks’:
- A framework for assisting abused and neglected adults
- A framework for the appointment of and authority of personal and property guardians
The first approach or framework is for situations where a vulnerable adult is unable to seek support and assistance because of physical restraint, a physical handicap or an illness, disease, injury or other condition that affects their ability to make decisions about abuse or neglect. There are agencies with the legal mandate to investigate and respond to these situations – the PGT and designated responsders.
The second framework is for situations where an adult needs ongoing assistance making decisions and informal help is not sufficient and no advance planning documentation (EPOA, RA, AD, Trusts) has been done.
Legislation sets out formal procedures to allow another person or the state to take over the adult’s affairs and act on his or her behalf. In British Columbia, ‘Committeeship’ is the [rather archaic -from the middle ages] term used to refer to the formal procedures leading to adult guardianship. Part of the formal procedures involve declaring the adult mentally incompetent.
Guiding Principles & Presumption of Capability
Sections 2 & 3 of the Adult Guardianship Act set out some guiding principles in this area, including the presumption of capability:
2) This Act is to be administered and interpreted in accordance with the following principles:
(a) all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters;
(b) all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs;
(c) the court should not be asked to appoint, and should not appoint, guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered.
3) (1) Until the contrary is demonstrated, every adult is presumed to be capable of making decisions about the adult’s personal care, health care and financial affairs.
(2) An adult’s way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about anything referred to in subsection (1).
Committeeship [adult guardianship]
There are two ways Committeeship can happen:
1. Someone (usually family member) can apply to the Supreme Court to be appointed private committee (guardian) under the Patients Property Act,
– or –
2. The Public Guardian and Trustee can become statutory property guardian (formerly known as “public committee”) of the adult’s finances and legal affairs by Certificate of Incapability (COI) issued pursuant to the new process outlined in the and Statutory Property Guardianship Regulation to the Adult Guardianship Act.
Two Types of Private Committees
Private Committees can be the Committee of the Estate (finances/property/legal) and/or Committee of the Person (personal care/medical care/end of life matters).
Some effects of Committeeship:
- The adult loses his or her decision-making rights and is considered a non-person under the law.
- The adult will likely have a committee for the rest of his or her life; Committeeship is difficult to reverse.
See the article The ABCs of Committeeship from CLE-BC.
As discussed in that article, you should prepare the following documents:
- Petition (Form 66) pursuant to section 2 of the Patients Property Act
- Affidavit of Kindred and Fortune (Rule 2(3) of Patients Property Act Rules) see Form 3 in the appendix to the Rules – you can adapt a Form 109 Affidavit)
- Consent from any other relevant family or friends
- Doctor’s Affidavits from 2 medical practitioners (section 3(1)(b) of the Patients Property Act – see ABC’s for suggested content – you can adapt a Form 109 Affidavit))
- Notice of Application (Form 3 in the appendix to the Patients Property Act Rules)
- Certificate of Medical or Acting Medical Superintendent of Service of Notice of Application for Appointment of Committee (Form 2 in the appendix to the Patients Property Act Rules) (for when the person truly is a patient – in a mental health facility)
Once you have received any reply, you prepare
- Application Record
- Draft Order (Form 35 of the Rules of Court)
CBA BC Dial-A-Law script on Committeeship. Discusses: what is a committee?; how and when could you become a committee?; choosing or nominating a committee; powers and duties of a committee; are you paid?; the PGT; Committee compared to POA; other statutory remedies under the Representation Agreement Act, the Health Care (consent) and Care Facility (Admission) Act; the Adult Guardianship Act and the Public Guardian and Trustee Act; and, finally pension trusteeships.
A useful discussion of the role and responsibilities of a Private Committee appointed under the Patients Property Act.
A review of various assessment tools by Professor Deborah O’Connor of the UBC School of Social Work
This is a thorough (162 pages) review of the COI process under the Adult Guardianship Act and the Statutory Property Guardianship Regulation. Includes: Determining the Need; the Assessment; the Health Authority Designate Decision; Second Assessment, Reassessment, court review and ending PGT Authority, Information on Collection and Disclosure of Information and Record Keeping; also, Appendices setting out Key Terms and Definitions, Options to Consider, Contact Information, the Legislation, and Forms.
- Certificate of Incapability Video Session
- Certificate of Incapability Video Session (Compatible with phones and small mobile devices)
This is a recording of the in-person training session on the new certificate of incapability process held in Surrey for Fraser Health Authority staff on November 17, 2014.
- Guide to the Certificate of Incapability Process under Part 2.1 of the Adult Guardianship Act (Nov 18, 2014)
This is a recording of the Geriatric Medicine Rounds held via provincial video-conference on November 18, 2014, hosted by Dr. Martha Donnelly.
UBC Law Students Legal Advice Plan
For local agencies – contact the BC Community Response Networks
For Vancouver (Coastal Health) see the VCH re:act material.
To contact designated responders (Health Authorities) see this list: Designated Responders
Geriatric Assessment Resources
Specialized Geriatric Clinics (Geriatric Assessment Teams)
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