Incapacity planning is an important part of estate planning.
People who are struggling with legal or financial decision-making, or want to set out plans for future health care, have various options in case they become incapable of making those decisions. This section identifies different ways that legal, financial, medical, or personal-care decisions can be made for people who are no longer capable of making those decisions for themselves.
A health care provider cannot provide health care to a capable adult without that adult’s consent (Health Care (Consent) and Care Facility (Admission) Act, s. 5), subject to some exceptions for emergency care and mental health intervention (Health Care (Consent) and Care Facility (Admission) Act, ss. 2 and 11-15). For an adult who is not capable of providing (or refusing) consent, the Health Care (Consent) and Care Facility (Admission) Act, s. 16, provides that a “temporary substitute decision maker” (TDSM) can be appointed to give (or refuse) consent to health care on behalf of the patient.
There is an order prescribed in the Act (s. 16) of close family and friends who are eligible to be TSDM. First eligible are spouse, children, parents, and then more distant relatives and friends. The TDSM must be a person who had had recent contact with the patient and has no dispute with the patient.
If the patient recovers and becomes capable of consenting to treatment, the appointment of the TSDM expires (Health Care (Consent) and Care Facility (Admission) Act, s. 17(2.2)).
A committee is appointed to manage the affairs of a patient who is incapable of doing so. The patient might be a person committed to a mental health facility, or assigned a guardian under the Adult Guardianship Act, R.S.B.C. 1996, c. 6, Part 2.1, or declared to be in need of a committee by the Supreme Court of BC.
In applying to the court, the person seeking to be committee provides two affidavits from medical practitioners (Patients Property Act, s. 3). The patient might also nominate a particular person to be committee (Patients Property Act, s. 9).
The committee is often an individual or the Public Guardian and Trustee. “Committee” is defined in the Patients Property Act, R.S.B.C. 1996, c. 349, s. 1:
"committee" means the following persons:
(a) a person appointed as committee under section 6 (1); (b) the Public Guardian and Trustee under section 6 (3);
(c) a statutory property guardian under Part 2.1 of the Adult Guardianship Act.
A committee may be appointed under the Patients Property Act as guardian of the patient’s estate, to look after the legal matters, property and finances. A committee might also have custody of the person (Patients Property Act, s. 15).
Typically, appointment of a committee for a patient will terminate or limit any power of attorney or representation agreement of the patient (Patients Property Act, ss. 19-19.1).
A representation agreement appoints an adult (or the Public Guardian and Trustee) as representative to make health and personal-care decisions on behalf of the adult granting the power. The representative is usually a family member or friend of the person granting the power, and must be 19 years of age or older. The representative is a fiduciary, bound to make those care decisions in the grantor’s best interests when the grantor is no longer capable of making them.