Can Someone Incapable of Managing His Own Affairs Still Choose His Guardian?

In British Columbia, under the soon to be repealed Patients Property Act, you can nominate a committee (which is B.C. legalese meaning an “adult guardian”, and will soon be changed to “adult guardian”).

Section 9, which allows you to nominate a committee, says that the nomination must be made when you are of “sound and disposing mind,” and your signature must be witnessed according to the formalities required for a valid will. If the court declares that you are incapable of managing yourself or your affairs, the court must then appoint the person you have nominated unless “there is good and sufficient reason for refusing the appointment.

Fraser v. Fraser, 2008 BCSC 1733, was a dispute among siblings about who would be appointed as a committee for their father, Andrew Fraser Sr. One of Andrew Fraser Sr.’s children, Gordon Fraser, had been caring for his father from 2001 to January, 2007. He had a power of attorney.

In October 2006, Andrew Fraser Sr. met with a lawyer, Donald McLellan. He expressed concerns that Gordon was trying to force him to move from his house. He also wanted to make a new will. Mr. McLellan prepared a revocation of the power of attorney to Gordon Fraser and a nomination of committee form for Andrew Fraser Sr. nominating two of Mr. Fraser’s other children, Andrew Fraser Jr. and Colin Fraser.

Gordon Fraser applied for an order declaring that Andrew Fraser Sr. was incapable of managing himself or his affairs, and for an order appointing him, Gordon, as committee. It was common ground that Andrew Fraser Sr. was incapable of managing his affairs, but Gordon siblings opposed Gordon’s appointment as committee. They alleged that Gordon had unduly influenced their father to transfer land to Gordon, and that he had misappropriated money from their father. (These allegations have not been proven.)

Andrew Fraser Jr. and Colin Fraser argued that they should be appointed committees because, in part, their father had nominated them.

Donald McLellan, the lawyer who prepared the nomination of committee, explained the document to Andrew Fraser Sr. He was of the opinion that Andrew Fraser Sr. understood that he was nominating Andrew Fraser Jr. and Colin Fraser in case he needed someone appointed to care for him.

Mr. McLellan also requested an opinion from Andrew Fraser Sr.’s doctor. Dr. Cameron was of the opinion that although Andrew Fraser Sr. was not capable of managing his affairs, he did have the capacity to decide who would manage his affairs.

Madam Justice Bruce found that Andrew Fraser Sr. had the capacity to nominate a committee even if he did not have the capacity to manage his own affairs. She wrote at paragraph 20:

There is a qualitative difference between managing one’s business affairs and attending to one’s daily care needs and choosing who among family members one
wishes to have in charge of those matters. Similar to testamentary capacity, I find the patient’s awareness and understanding does not have to be at a very high level to designate a family member to be in charge of their affairs. The patient need only know what his wishes are in that regard.

Madam Justice Bruce appointed Andrew Fraser Jr. and Colin Fraser as committees for their father. She expressed concern that Andrew Fraser’s Sr.’s assets might be dissipated in a lawsuit among his children. Accordingly, she restricted the committees’ powers by requiring them to get the approval of the Public Guardian and Trustee of British Columbia before bringing a claim on behalf of their father against their brother Gordon.