In this article, we discuss the lesser discussed estate planning document available in British Columbia – the nomination of committee. A nomination of committee helps a court decide who can make financial and health-related decisions for a person who has lost capacity to manage their affairs or themselves.
Most people are familiar with wills and powers of attorney—two of the most common estate planning documents. While a will deals with a person’s assets and liabilities after death, a power of attorney gives someone authority to manage a person’s financial affairs while they are alive. In British Columbia, a person is also able to prepare a representation agreement, which provides for how, when and who may make their health-related decisions if they become incapable of making these decisions.
What is a nomination of committee?
A nomination of committee is a document that names one or more people to manage a person’s financial and health-related decisions after a loss of mental capacity. The nomination of committee provides a court with evidence of who a person wants the court to appoint as their committee. Once appointed, subject to a few exceptions, a committee has the same powers as an attorney under a power of attorney and a representative under a representation agreement.
Committees are court-appointed
One of the key differences between a committee and an attorney or representative is how they are appointed. Attorneys and representatives are normally appointed by document, such as an enduring power of attorney or a representation agreement. Committees, however, can only be appointed by the Supreme Court (except for the Public Guardian and Trustee, which is committee by default until another person applies to appoint a different committee).
It is usually preferable to make a power of attorney and representation agreement rather than simply making a nomination of committee. This is because powers of attorney and representation agreements typically avoid court (as opposed to committee applications), while at the same time offering greater overall flexibility in defining how your decision-maker should act.
It is worth noting is that any person can apply in court to appoint a committee for any other person. Often the applicant is a family member who is looking to take care of a parent, but it could be someone other than family. In other cases, another interested party such as government or a concerned friend may apply if there is reason to believe an attorney or representative is abusing their powers.
A nomination of committee tells the court who you want to appoint as your committee
When a court appoints a committee, one of the first things it will look at is whether the person nominated a committee before they lost capacity. Under the Patients Property Act of British Columbia (PPA), when a valid nomination of committee is presented to the court, the court must appoint the named person(s) as committee unless there is good and sufficient reason not to.
Committee trumps attorney
Once a person is determined to be a patient (e.g. mentally incapacitated) under the PPA, their existing powers of attorney are suspended or terminated, depending on the specific circumstances surrounding the incapacity (s. 19 and 19.1 of the PPA).
Committee may trump representative
With representation agreements, the PPA provides courts with a little more flexibility. Depending on the circumstances, existing representation agreements may be kept fully intact, partially redacted, or otherwise suspended or terminated.
Summary
A nomination of committee allows you to choose who you would like to manage your personal and financial affairs if you are ever found to be a patient (e.g. by losing capacity to manage your personal or financial affairs) under the Patients Property Act of British Columbia.
In practice, the nomination of committee usually acts as a backup document to both the enduring power of attorney and representation agreement. In most cases, the nominee will be the same person or persons as the attorney and representative.
The nomination of committee is most commonly used when:
- a power of attorney or representation agreement fails for any reason;
- a person has no attorney or representative who is able or willing to act;
- someone loses capacity without an enduring power of attorney or a representation agreement; or
- if there is a challenge to the validity of your power of attorney or representation agreement documents.
While it is not legally required (since a court can appoint a committee with or without a nomination of committee), having a nomination of committee greatly simplifies the committeeship process due to the rule that a court must appoint a person’s nominee unless there is good and sufficient reason not to. As such, most people would benefit from a nomination of committee in addition to the other more commonly known estate planning documents.
