As the population ages, we see more adults in need of assistance to manage their financial affairs or personal care decisions. As lawyers, we are bringing many applications to the courts seeking the appointment of a “committee” for such adults. The word committee in the incapacity context is often mispronounced as kuh-mit-ee, like an organizational committee, instead of kaw-mit-tee. Essentially, a committee is a court-appointed guardian for those in need of protection due to their diminished capacity. This article will outline a few key points about adult guardianship, including the court’s inherent right to intervene in the protection of the vulnerable.

The Patients Property Act governs the appointment of committees and the scope of a committee’s responsibilities. Under this Act, those deemed incapable of managing their affairs are called “patients”. A committee may be a committee of affairs (responsible for the administration of the patient’s legal and financial affairs), a committee of person (responsible for making decisions about the patient’s day-to-day care and living arrangements), or a committee of both affairs and person.

The appointment of a committee requires a court application with certain specified materials. Where the application is not opposed, generally the court application will proceed solely on written evidence. Committeeship applications that are contested amongst family members can result in the court ordering that parties and experts testify in person. The decision argued by Clark Wilson partner Amy Mortimore in Re Vranic (2007 BCSC 1949) is a good example.

At both contested and non-contested committeeship applications, the Act requires sworn affidavits by two medical practitioners attesting to the patient’s incapacity. Often this will include the patient’s general practitioner, although sometimes specialists such as geriatric psychiatrists, geriatricians, neurologists and neuropsychologists are consulted.

The Patients Property Act addresses the procedure and content for an application. But what happens if the Act does not address all of the issues that arise in these types of cases? There is, outside of that statute, a tandem power that resides in the court called the parens patriae jurisdiction, which is the court’s inherent jurisdiction to provide protection for those who are unable to care for themselves. When the Patient Property Act does not cover a particular situation, the court will often use its parens patriae jurisdiction to make decisions on behalf of an individual incapable of making that decision. This is done on more of a one-off basis rather than by appointing a person to make all of a person’s decisions (as a committee would do).

Our courts have used their parens patriae powers sparingly; our Judges appreciate that these cases involve a delicate balance between competing values of personal autonomy and protection of the vulnerable. The Patients Property Act attempts to balance these conflicting principles by presuming that a person is capable of managing his or her affairs until it is proven otherwise. Rebutting this presumption requires, amongst other evidence, the two medical affidavits attesting to the person’s incapability referred to above. Bearing this in mind, the Act has two objectives, both of which involve guarding the individual’s free choice. As Neilson J.A. stated in a recent BC Court of Appeal decision, Temoin v. Martin, 2012 BCCA 250 [Martin]:

First, it guards the autonomy of capable individuals by requiring a minimum of two medical affidavits to rebut the presumption of capability. Second, it protects the interests of vulnerable adults whose capacity has been compromised by mental infirmity, and who are therefore incapable of making autonomous choices.

As noted, a court, in exercising its parens patriae jurisdiction, pays heed to similar principles. As the Supreme Court of Canada explained in the case of Re Eve, [1986] 2 S.C.R. 388, the court will only exercise its parens patriae jurisdiction when it is necessary to protect a person who cannot protect themselves, and in those cases it will be exercised only for the best interests of that person. Put another way, when an individual is incapable of making an informed decision, the court will compel the person to act in his or her own best interest if necessary. A person cannot decide what is in their best interest when they are incapable of making an informed decision. Therefore, like committeeships, parens patriae is exercised to protect a person’s autonomy.

A “person’s best interest” is an important legal principle that is engaged in all of these cases. While our courts are cognizant that it is difficult to care for a person that has trouble managing his or her affairs, the court will not appoint a committee or exercise its parens patriae jurisdiction to ease the burden of a care giver. The focus is on the individual potentially requiring protection. As La Forest J. said in Re Eve:

The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a Court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual.

The burden or inconvenience on a caregiver, friends, or family of a person will not be given much weight by the court. In Re Eve, the parents of a mentally impaired yet physically mature woman sought approval from the court, under its parens patriae jurisdiction, to have their daughter sterilized. The court noted that the sterilization would not be for health reasons. The parents were concerned that the daughter may have a child that she was unable to care for, and that they might be left with the responsibility for raising that child. The court emphasized the importance of the daughter’s personal autonomy and refused to sanction the procedure.

In the recent case of Martin, the judge hearing the petition disapproved of the applicant seeking relief under the court’s parens patriae jurisdiction for an apparent ulterior purpose. There were legitimate concerns about the father’s ability to manage his affairs, but the daughter’s ultimate goal appeared to be having the father’s will set aside in order to further benefit her own family. The Court of Appeal decided that the trial judge was permitted to consider that ulterior purpose. Ultimately, in Martin, the parens patriae jurisdiction was not exercised.

When considering relief from the court in this context, whether it be by committeeship order or under the court’s parens patriae jurisdiction, the applicant must keep the purpose of these concepts in mind. With an aging population, adult guardianship issues are increasingly gaining prominence. Our article has identified that our courts are armed with both statutory and inherent judicial authority to provide incapacitated adults with guardian type protection. There are both specific rules and underlying interests at stake which a court must grapple with in deciding these difficult court applications.