COLUMN: Who is going to care for Aunt Mildred?

If you have any elderly family members or friends who have reached the stage where they are not capable of managing their own affairs ...

  • Oct. 16, 2015 8:00 a.m.

Legal-Ease by Ian MacKinnon

These days, this is a familiar problem.

Uncle John died a few years ago at age 73, leaving his wife (Aunt Mildred, age 73) behind. As the years pass, Aunt Mildred becomes less self-sufficient, and the extended family eventually decides to place Aunt Mildred in a seniors’ home.

Thereafter, she slowly becomes less and less capable of taking care of her own affairs, and her extended family has many questions including:

How can we sell Aunt Mildred’s home to pay for her care?

Who can pay her bills?

Who can manage her investments?

The answer is found in the Patients Property Act [RSBC 1998] c. 349. This act allows family members, or friends, to apply to the Supreme Court of British Columbia to appoint a committee of the estate and person of any adult declared incompetent by the courts (referred to as the “patient”).

On any such application, two medical doctors must offer opinions that the proposed patient is, by reason of mental infirmity arising from disease, age, or otherwise, or disorder or disability of mind arising from the use of drugs, incapable of managing his or her affairs. In most cases, the proposed committee is a younger family member. Failing family members agreeing to stand as committee, friends of the patient can also be considered.

An affidavit from the proposed committee is required, setting out his or her relationship with the patient and providing enough background to the court to ensure that the court has confidence that the proposed committee would be a competent and  trustworthy person to manage the estate.  In most cases, the committee is required to post a bond with the court to protect against any improper usage of the patient’s estate.

Once the committee is appointed, he or she has full authority to then deal with all of the patient’s assets.  As such, the committee would have the legal authority to sell Aunt Mildred’s home, pay her bills, manage her investments, etc.

There are times when committee applications can become contested.  The patient, other family members, or friends may believe that the patient is still capable to manage his or her own affairs.  The debate then in front of the court would be the level of competence of the patient. If incompetent, a committee is required. If still competent, the patient can obviously then still manage his or her own affairs.

As well, committee applications can become disputed when there is a debate as to who is the proper committee. The court would then weigh the evidence presented by the applicants and decide who would be the best committee.

If you have any elderly family members or friends who have reached the stage where they are not capable of managing their own affairs, and they need someone with legal authority to assist them, you should consult an estate litigation lawyer to discuss how a committee of their estate could be appointed.

Ian is a partner with RDM Lawyers LLP in Abbotsford. He practises in the areas of estate litigation, expropriation, and civil litigation.  Comments or questions about this article can be sent to legalease@abbynews.com.