Testamentary Incapacity- Appointing a Committee in BC

Many people beginning their estate plan fail to consider the possibility that they will become intellectually incapable as a result of a degenerative disease, like dementia. For the family of people experiencing degenerative disease, the implications of the illness on their estate plan is often the least of their concerns. However, it is important to understand the challenges testamentary incapacity can pose for both testators and their beneficiaries. To ensure that testators are protected and making choices in their best interest, a committee can be appointed to support the estate planning process and help to manage the testator’s while they are living. 

Types of Committeeship and Their Appointment in British Columbia

There are two types of committee which can be appointed by a court in BC: the committee of estate, and the committee of person. Both play important roles in the lives of testators who are losing or have lost their testamentary capacity due to illness. A committee of estate is responsible for making decisions on behalf of the testator relating to their estate, largely concerning financial and legal issues. The committee of person is responsible for decisions regarding personal, medical and end of life care for the testator. The rights and responsibilities of a committee are largely similar to those of an appointed power of attorney, though a power of attorney must be appointed by the individual before they lose capacity. A committee can be appointed by the courts at any point when an interested party, like a loved one, demonstrates the testator is incapable per the Adult Guardianship Act (1996). This is an important distinction because, while power of attorney is an important estate planning tool, it is not effective if the testator is already incapacitated at the time it is executed. Because the status of the testator at the time the power of attorney was executed can be a contentious issue and give rise to estate disputes, it is important to ensure that a power of attorney is drafted and executed early in the estate planning process. This ensures there is no dispute concerning its validity after the death of the testator. 

In order to prove the testator is incapable under the Adult Guardianship Act and petition the court for the appointment of a committee, an interested party must provide adequate medical evidence. They must also provide sworn affidavits from at least two doctors confirming the incapacity of the individual. The courts can appoint a family member or loved one, a professional, or the Public Guardian and Trustee of British Columbia to the role.

Why Appoint a Committee?

In British Columbia, an important element of any valid will is that its writer has testamentary capacity- the intellectual ability to freely make decisions relating to their estate in their best interest. If there is uncertainty over the capacity of the testator at the time they created testamentary documents like a will or a codicil or transferred assets out of their name, interested parties can dispute their validity. When the courts find a testamentary document or transfer to be invalid based on the incapacity of the testator, undue influence or a combination of the two, the courts can vary the will or undo the transfers. When a testator is no longer capable of freely making decisions relating to their finances, assets, or personal care and health, a committee provides essential care and support. Without a committee or power of attorney to manage decisions relating to the estate, the incapacitated testator won’t be able to make legally binding adjustments to their finances or estate plan. They also may fall victim to undue influence from family and/or friends to change their estate plan against their true intentions. 

Having a committee appointed is important where it is too late to have a power of attorney appointed to manage the affairs of a testator. If you’re concerned about the testamentary capacity of a loved one or the validity of their testamentary dispositions, contact an experienced estate lawyer today. 

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