In a recent British Columbia decision, the court was asked to decide between a son and a daughter who were both seeking to have their mother declared incapable of managing her affairs and each wanted to be appointed as committee to her estate and person. The court heard the matter on an urgent basis due to the COVID-19 implications as to the mother’s residence and medical care.

What Happened?

The application was brought to court by an 83-year-old woman’s children amid the COVID-19 pandemic.

The mother’s son sought a petition for relief under the Patients Property Act (the “PPA”) for a declaration that the mother was incapable of managing her affairs and an order appointing himself as committee to her estate and person.

The daughter did not oppose the declaration but opposed the son’s appointment because she wanted to be appointed instead. The mother’s two other children supported the daughter’s opposition.

Urgency of the Matter

At the time of the hearing, B.C. courts had suspended regular operations as a result of the COVID-19 public health emergency.

However, the court agreed to hear the application, finding that there was urgency to the matter in relation to the disagreement between the son and daughter as to where the mother should reside and what arrangements should be in place for her health care and medical care during the COVID‑19 pandemic.

In particular, at issue was the fact that until recently the mother resided in a long‑term care home in the Vancouver area. However, in early March of 2020 in recognition of the risk that the mother might face from exposure to COVID‑19 in that facility and the potentially negative consequences, one of the mother’s other children removed her from the care home and took her to Vancouver Island to stay at the daughter’s residence. The son did not agree with this approach, pointing out that until that time the mother had resided at the long‑term care facility in the Vancouver area under an arrangement whereby she had granted him a power of attorney over her financial affairs.

Decision

After reviewing the evidence and applicable considerations relating to the request for committee, the court first ordered that an interim declaration be made under s. 6 of the PPA that the mother was incapable of managing her person and affairs.

Secondly, on an interim basis, the court appointed the daughter as committee over the mother’s person and affairs. As part of its reasoning in coming to this decision, the court stated:

“[I]n early March with the emergence of the coronavirus public health emergency, [the daughter] expressed concern about [the mother] continuing to stay in a long‑term care facility where she was at risk of infection and possibly death. [The son] was opposed to the proposal for [the mother] to live with [the daughter] on Vancouver Island, offering as at least one of the reasons for his opposition a concern that [the daughter] might keep [the mother] there for six months or more. In my view this reasoning shows more of a concern about the strategic impact of the move rather than the medical best interests of [the mother].

Also, the future plan articulated by [the daughter] seems more consistent with the best interests of [the mother than] the plan articulated by [the son]. [The daughter] proposes that [the mother] will continue to live in her house until the COVID‑19 public health emergency subsides.

By contrast, [the son] proposes to relocate [the mother] back to the Lower Mainland to have her stay with him at his residence in quarantine for two weeks and then to re‑evaluate in consultation with [the mother]’s treatment providers where she should stay at that point forward. This proposal appears to leave open the possibility that [the mother] might return to the long‑term care facility before the COVID‑19 crisis subsides.

Of course we cannot public what will happen in the future or what developments may enfold as far as the COVID‑19 crisis is concerned, but in my view the concrete proposal of [the daughter] to keep [the mother] with her at her residence on Vancouver Island until the public health crisis subsides is a more realistic and reliable plan than the more open-ended plan suggested by [the son] as I understand it.”

As a result, the court appointed the daughter committee on an interim basis, subject to several conditions.

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Your matters are extremely important to us and we want to assure you that business will not be disrupted.

If you have any questions we encourage you to contact us at info@cmlawyers.ca. Let’s continue to take care of each other during this difficult time.

Considerations such as future medical care and life-prolonging medical interventions can be overwhelming. There is a lot to think about, and many people are uncomfortable with the process. At Cherkowski Marsden LLP, we understand how clients feel about this undertaking, and we have the experience and the approach that can help to make this incredibly important process as easy as possible for our clients. Our lawyers will work to ensure that you have considered all of your options and will design a plan for you that will ultimately provide you with the incredible relief of knowing that you’ve taken the time to ensure that your voice will be heard for the entirety of your life, no matter what might occur in the future. Contact us online or by phone at 250-308-0338 (Vernon office) or 250-803-9171(Salmon Arm office).