A “committee” is a legal guardian, appointed by the court, to act for an individual who has reduced capacity. A “committee of estate” acts for the individual in financial and legal matters, and a “committee of person” is responsible for their personal and healthcare decisions.

In order for a court in British Columbia to appoint a committee for an individual under the Patients Property Act, it is necessary for the court to have found that individual to be legally incapable of managing either themselves (for a committee of person), or their financial and legal affairs (for a committee of estate). To do this, the court must, among other things, first be presented with the affidavits of 2 medical practitioners that set out their opinion that the individual is incapable.

However, a 2012 decision by the British Columbia Court of Appeal, Temoin v. Martin, highlighted a gap in the legislation; namely, that there was no statutory means by which a court could compel an individual to undergo the necessary medical assessments to determine capacity. The court had the power to order further examinations after the 2 affidavits were presented, but it could not order the initial assessments. This inability, combined with the affidavit requirement, could, in the words of the court, “become an impediment that places individuals who are incapable of making free choices beyond assistance”.

The BCCA in Temoin found that could use its inherent jurisdiction to order that an individual undergo an examination.  To do so, however, the court would have to be presented with evidence that strongly suggested two factors were present:

(i) that the individual was legally incompetent, and

(ii) that a “compelling need for protection” of the individual existed.

This request to the court has since become known as a “Temoin application”.

A compulsory, court-ordered capacity assessment engages many competing rights and priorities. For example, all adults are presumed to be capable. Further, the Charter protects every individual’s right to autonomy and dignity. In light of these considerations, the court in Temoin found that the evidence failed to establish a compelling need for protection, and declined to order the mandatory examinations.

Following the Court of appeal ruling in Temoin, there had been various applications to attempt to compel an adult to undergo involuntary mental capacity testing. Until July 2017, all applications had failed. In July 2017, the case of Singh (Re), 2017 BCSC 984, became the first successful Temoin application.

In Singh, the applicants were a married couple, one of which was a child of the individual whose competence was at issue. The application was opposed by four of the individual’s other five children, and the individual himself. Of primary concern in the litigation was an alter ego trust, established by the individual several years earlier, for which he was the sole beneficiary during his lifetime, with his children as the secondary beneficiaries.  When the trust had been settled, the individual had appointed the applicants as trustees, and had also granted them enduring powers of attorney for him.

In 2015, the individual underwent a single medical examination by his family doctor. This family doctor diagnosed him as suffering from “moderate to severe vascular dementia, manifested by cognitive impairment and short-term memory loss”. Further, the family doctor assessed him incapable of managing himself or his own affairs. As a result of this diagnosis, the applicants requested that the individual consent to a further capacity assessment. He refused to do so. Shortly thereafter, the applicants received a letter from the individual that terminated their powers of attorney, and appointed three of the individual’s other children as additional trustees to the alter ego trust.

After being appointed, the new trustees made several transfers from the trust accounts for various purposes, which the applicants disputed as improper. The new trustees and counsel for the individual then brought a petition for the removal of the applicants as trustees, to which the applicants responded by bringing a Temoin application.

Applying the two-part Temoin test, the court first found, based on the physician’s opinion of incapacity, that there was a serious enough question as to the individual’s capability to manage his person and his affairs that additional medical examinations were warranted. Regarding the second element of the test, that a serious question be raised of a “compelling need for protection”, the court agreed with the applicants, who had argued two points. First, that the alter ego trust was the source of the individual’s financial support for his remaining years, and second, that the new trustees’ alleged misappropriation of the trust assets was a risk to that trust, and thus, a risk to the individual. Finding both elements of the Temoin test satisfied, the court then granted the application, and ordered that the individual undergo two medical examinations by geriatric psychiatrists.

Two key points to take away from court’s ruling in Singh, (Re):

(i)  evidence of a risk to an individual’s assets alone could be sufficient to establish “a compelling need for protection”;

(ii)  proper incapacity planning is often essential to avoid divisive uncertainty between family members, or costly litigation, after an individual can no longer manage their own affairs, or themselves.