In British Columbia, when a person loses the capacity to manage his or her own affairs, someone can apply to the British Columbia Supreme Court to be appointed committee. The legislation governing the committee appointment process is called the Patients Property Act, and the person incapable of managing his or her own affairs is called the “patient.” The applicant is usually a spouse or close family member of the patient, such as a child. It is not easy to become committee, and the applicant must satisfy the Court that the person is in fact incapable of managing his or her own affairs.
Once the Court has appointed a person committee, the committee exercises great power over the assets of the patient. The committee can also make decisions in respect of the patient’s medical treatment and care, making the committee a very important and powerful position in respect of a patient.
Committees can also be dismissed by the Court. An applicant who believes the committee is not doing a good job, or is otherwise acting improperly, may apply to the Court and ask that the committee’s appointment be rescinded. A committee can be removed for failing to perform various duties described in the Patients Property Act, including the duty to act in the best interests of the patient.
The issue of rescinding the appointment of a committee was recently brought before the Courts in Ng v. Ng, decided in February 2013 by Justice Gropper of the B.C. Supreme Court. In this case, the patient was the committee’s husband. The patient had been injured in a catastrophic car accident many years before, and had been left in a vegetative state. A large body of medical evidence said that the patient would never recover, remaining in a vegetative state for the remainder of his life. As a result of the medical evidence, and after the patient had been in a vegetative state for some 10 years, the committee decided not to allow continued provision of life support to the patient.
The Court’s analysis focused on whether the committee had the power to make medical decisions, which she did under the legislation, and not on whether the decision was in the patient’s best interests. The Court found that the medical evidence provided by the committee supported the committee’s decision to remove life support. Although the applicant’s expert was a first-rate neuroscientist, the applicant failed to refute the basic fact that the patient was in a permanent vegetative state.
The Court also made some useful observations. First, the Court confirms that the standard of review of a committee’s decisions usually comes from the Patients Property Act, which requires that a committee exercise its powers for the benefit of the patient and the patient’s family, having regard to, among other things, the needs of the patient and the patient’s family. Second, it is up to the person who wants to remove a committee to prove to the Court that the committee has breached his duty to the patient. Removing a committee will be more a battle of evidence than of legal persuasion, so it is important to be cognizant of the central medical issues in any similar application to remove a committee.
To find out more information, contact one of Pushor Mitchell LLP Wills & Estates Litigation Team:
Joni Metherell
Allan Elliott
Matthew Blow
Matthew Blow can be reached at 250-869-1227, or [email protected]