When it comes to securing one’s own future care, a key step is to execute a Representation Agreement, which appoints representatives to make personal care decisions on your behalf in the event that you lack the capacity to do so yourself. When making such an Agreement, many people will appoint more than one person (for example, if they have more than one child, each child may be listed as a Representative). If the Agreement does not set out a method for resolving conflicts among the representatives, disputes can arise, resulting in litigation. This was the case in a recent decision of the Supreme Court of British Columbia.

Daughters Unable to Agree on Care Arrangements for Mother With Dementia

The parties in this dispute were each the daughter of a woman who had previously been diagnosed with dementia and was unable to manage her own care or affairs. While the mother’s incapacity was raised as an issue in this dispute, the court found that there was significant medical evidence to demonstrate that the mother required a representative to make decisions on her behalf.

When the mother was healthier, she had executed a Representation Agreement appointing both daughters to be her representatives if necessary. Notably, the Agreement did not require that the daughters agree on a decision before acting, and did not provide any method for resolving conflict should one arise. The mother was eventually diagnosed with dementia and was moved into a retirement residence. A couple of years later, her dementia had advanced to the point where she required around-the-clock care and could no longer stay at her current residence.

The daughters looked for alternatives but had a difficult time finding a suitable place in Vancouver. The older daughter owned a vacation property in Mexico, in an area populated by a high number of Canadian ex-pats. She proposed turning an outbuilding on her property into a separate residence for the mother and hiring full-time care to reside with her. The daughter went to live full-time in the main house on the property in order to oversee her mother’s care. The younger daughter strongly opposed this plan, as she saw her mother very infrequently. Her sister had made it clear that she was welcome to visit any time, all-expenses-paid, but she refused, saying she felt unsafe there. Complicating matters, the mother executed a separate document after moving to Mexico, appointing the older daughter as committee over the mother’s affairs. In the case at hand, each daughter sought an order appointing themselves as their mother’s committee.

What is Committeeship in British Columbia?

Committeeship is a court appointment invoked when an adult no longer has the capacity to make decisions regarding their own well-being, finances and personal care. Before appointing a committee, a court must be satisfied that the person is incapable of managing their own affairs, which was satisfied in this case based on medical evidence and corroboration by the Public Guardian and Trustee (PGT). Notices must be served on the patient themselves, as well as the PGT, and those seeking committeeship must provide a full account of the patient’s assets. Once appointed, a committee has full rights to make any and all decisions pertaining to the care and finances of the patient, but also must make decisions in the patient’s best interest.

A Question of Undue Influence

While it was not disputed that the mother was happy, healthy and receiving excellent care in Mexico, the younger daughter raised the concern that the mother had executed the appointment of the older daughter as committee because she was influenced to do so. The mother had obtained independent legal advice before signing, but the court was unconvinced that the mother was not simply doing what the older daughter requested. The court found that a trial was necessary to determine the full picture and make an order as to committeeship. In the interim, the PGT was appointed as committee and the mother was to remain in Mexico with the older daughter.

This case demonstrates that even with planning, disputes can arise that result in extended and costly litigation for the loved ones of a person who no longer has capacity to make their own choices. It is important to discuss the wording of a document with an experienced estate lawyer who can provide guidance on how to avoid such conflicts with careful drafting. Perhaps if the mother had also executed an Advance Directive, setting out her own desires for her future care in detail, the dispute between these sisters could have been avoided.

The estate lawyers at Cherkowski Marsden LLP in Vernon are extremely knowledgeable with respect to all aspects of estate planning and Will drafting. They have extensive experience drafting countless custom estate plans that range from simple to highly complex. For questions and advice about your estate planning needs, please contact their office online or by phone at 250-308-0338.