If a loved one has lost mental capacity, that person is no longer able to appoint a Power of Attorney to act on their behalf. It may become necessary for a trusted family member or friend to apply to court to be appointed as their Committee to make decisions about their finances (manage bills, sell property, file income taxes) and/or person (healthcare decisions, where the person should live or who they can see).

There are a few factors that significantly impact the cost and timeline for obtaining a committeeship order:

1. Availability of physicians and fee charged by them

As part of the committeeship application we are required to obtain affidavits from two different physicians with their opinions regarding the capacity of the patient. We have had general physicians charge anywhere from $500 to $3,000 to complete this task.

If your loved one has a family physician, this person should be one of the opinions so they can speak to the history of the patient. Also, if your loved one is in a care facility we are generally limited to the physicians who attend that facility as part of their practice.

If your loved one’s condition is complex and we need to involve a specialist like a geriatric psychologist, the cost for the assessment and one affidavit alone can exceed $10,000.

Both the timing and cost of completing the medical affidavits are unfortunately largely outside of our control. Having completed this process many times, we have streamlined it to be as efficient as possible with a simple questionnaire. Sometimes physicians are quick at returning our questionnaire and other times it can take months to get it back and finalize the affidavits with them. This can also be delayed if your loved one moves facilities or is stuck in the hospital for a period as there is typically a rotation of physicians.

2. Complexity of the Estate

As part of the application, the applicant swears an affidavit that outlines the loved one’s family history, assets, debts, costs of their present care, the care plan going forward and details about the person seeking to be appointed; this is referred to as the Affidavit of Kindred and Fortune. Depending on the access the applicant has to information, gathering the necessary documentation can take months. Sometimes it is impossible to gain access to financial documents until after getting appointed, which means we proceed with the committeeship application but will need to provide updated information after the committee is appointed.

The more complex the estate, the longer it takes to gather the information needed for the Affidavit of Kindred and Fortune and the more time it takes to prepare the court materials.

3. Whether the application is contested

Sometimes family members cannot agree on who should be appointed to make decisions or the Public Guardian and Trustee of BC (PGT) does not agree with the proposed application. If that is the case, there may need to be a hearing where witnesses give evidence about things like their care plan going forward for the loved one. Depending on how many people may be seeking to be committee and the number of witnesses involved, the cost can vary significantly and the timeline is difficult to estimate.

The more parties and the more evidence, the longer a hearing will take and the longer it will take to have the court hear it. The cost is difficult to predict, but a ballpark figure is around $10,000 per day of trial.

If the application is not contested by family or the PGT, we are still required to attend a hearing with the court but it can be scheduled relatively quickly and the evidence is usually all done by affidavit so witnesses do not need to attend. Legal fees for uncontested applications are typically around $7,500 – $10,000; including the costs of medical affidavits and court fees, the total is usually around $10,000-$12,500. Once we have the medical affidavit and Affidavit of Kindred and Fortune completed we can usually have the matter heard within a month. The entire process typically takes around 3 to 6 months from start to finish.

All legal fees for committeeship applications at RDM are charged based on the hourly rate of the lawyer involved, which means the total will depend on the amount of time that it takes to prepare the materials and attend court. It is common for the court to award a successful applicant’s legal fees to be paid out of the estate of the patient. Typically, we request a retainer of $7,500 to open a file for a committeeship application. What this means is that the applicant pays upfront and then once appointed is usually reimbursed from the estate.

Still have questions?

We regularly prepare committeeship applications and are happy to assist you. Please contact our office at 604.853.0774 to meet with a member of our Estate Litigation Team.

• More information on planning for incapacity and the differences between power of attorneys, representation agreements and committeeship applications can be found by clicking here. 
• More information on hourly billing at RDM can be found by clicking here.
• More information on what a committee is and their responsibilities can be found in the PGT’s Private Committee Handbook available here.