What is the standard for a medical trust committee to consider a patient’s wishes when considering a transfer of funds?
British Columbia, Canada
The following excerpt is from O'Hagan v. O'Hagan, 2000 BCCA 79 (CanLII):
In saying this, I am not suggesting that a “subjective test” be adopted. In my view, the subjective wishes of the patient are adequately reflected in the principle that a committee may carry out the expressed but unfulfilled intentions of the patient if the transaction or transfer is for the benefit of the patient and the patient’s family. Given that a committee is held to the standard of a “reasonable and prudent [person] of business” (Waters, Law of Trusts in Canada, (2nd ed., 1984) at 758, quoted in Wood v. Public Trustee (1986) 70 B.C.L.R. 373 (B.C.C.A.) at 382), that standard should be the one applied by the committee when considering whether to carry out the proposed act. Would a reasonable and prudent businessperson think that the transaction or transfer in question would be beneficial to the patient and his family, given the circumstances that are known at the time and the possibilities that might arise in future? This should not amount to “guesswork” and is a matter on which professional advice can be sought.
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