Script 427 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script explains adult guardianship in BC. You should also check the following scripts:
- 426, called “Committeeship”, and
- 180, called “Power of Attorney and Representation Agreements”
What is an adult guardian?
A guardian is someone who looks after another person, and sometimes, that person's property.
An adult guardian makes decisions for an adult who is not mentally capable of making those decisions – about the adult and their affairs. A person may be mentally incapable because of disease, accident, or age. Or, a person may be mentally incapable from birth.
Why would an adult need a guardian?
People who suffer from a mental illness or handicap, a head injury, a degenerative disease or some other kind of disability may not be able to make decisions about their financial, legal, medical, or personal affairs. They may be unconscious and unable to decide anything, including where and how to live. They may lose track of bank accounts, forget to pay bills, or be taken advantage of by dishonest people. People in these situations need an adult guardian.
The guardian can be someone you chose while you were mentally capable – a representative, or an attorney – or it can be someone the court appointed after you became mentally incapable – a committee. You can name the person you want to be your committee, in case you become mentally incapable – see details below.
Four laws about adult guardianship
BC has the following four laws (available at www.bclaws.ca) that deal with mental incapacity and adult guardianship. They are designed to promote the right of all adults to take care of themselves. The laws aim to help people who can't make their own decisions or who could be taken advantage of by dishonest people:
- The Representation Agreement Act
- The Health Care (Consent) and Care Facility (Admission) Act
- The Adult Guardianship Act
- The Public Guardian and Trustee Act
These laws let people appoint and instruct a representative to make decisions for them. Check script 180 for more information. The Public Guardian and Trustee also has detailed information on them. Check its guide, called “It’s Your Choice” at www.trustee.bc.ca, under the “Personal Planning” link. Contact that office at 604.660.4444 in the lower mainland; elsewhere in BC, call Service BC at 1.800.663.7867 and ask for the Public Guardian and Trustee. Or you can email the office at firstname.lastname@example.org. Or contact a lawyer to learn more on these laws.
If you are mentally capable and want to plan for the future while you're mentally capable, you can arrange your affairs by naming the person that you want to make decisions for you if you lose your mental capacity. You can do this with:
- a representation agreement (script 180), or
- an enduring power of attorney (script 180), or
- a nomination of a committee (script 426).
You may also visit the Nidus Personal Planning Resource Centre and Registry website, at www.nidus.ca for more information.
If you become mentally incapable and haven't planned for it
If you become mentally incapable and you haven't named anyone to make decisions for you, the BC Supreme Court can appoint someone to make decisions for you. That person has to apply to the court under the Patients Property Act to be your committee. Often a family member or close friend will apply. The Public Guardian and Trustee may also apply to become committee, or the court may appoint the Public Guardian and Trustee if there is family conflict and the court decides that it is in your best interests to appoint an objective third party.
There are two types of committee. A committee of the person makes personal and medical decisions for someone who is not mentally capable, including decisions about where the person will live. Only the court can appoint a committee of the person.
A committee of the estate makes financial and legal decisions for someone who is not mentally capable. In addition to a family member or close friend, a committee of the estate can be a trust company or the Public Guardian and Trustee. The court can appoint a committee of the estate. The Public Guardian and Trustee can also be appointed as committee of the estate by a certificate of incapability under the Patients Property Act. Script 426 has more on committees.
If a person who becomes mentally incapable has no assets or property besides some type of federal pension (such as Canada Pension Plan, Old Age Supplement, Guaranteed Income Supplement, Veteran's Pension) then instead of a “committeeship,” a pension trusteeship may be cheaper and simpler. The Public Guardian and Trustee and the Federal Income Security Program (1.800.277.9914) have more information on this.
[updated July 2012]
Dial-A-Law© is a library of legal information that is available:
- by phone, as recorded scripts, and
- by audio and text, on the CBA BC Branch website.
To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.dialalaw.org.
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia Branch.
© Copyright 1983-2012 The Canadian Bar Association, British Columbia Branch