A lawyer must hold all information and file materials obtained in working with a client in strict confidence subject to some limited exceptions, as this information is protected by solicitor-client privilege. The client may waive privilege. But what happens when the client is no longer able to provide their consent to waive privilege, either because they lack the capacity to do so or they are deceased?

Sabey Rule LLP’s, Stanley Rule recently filed a successful Petition on behalf of an executor seeking the production of a Deceased’s person’s estate planning file. The decision is reported in Stapleton v. Doe, 2017 BCSC 12. This decision by Master Wilson nicely summarizes and clarifies the law with respect to an executor’s ability to seek the production of a lawyer’s estate planning file following the time of death. This decision will hopefully make the task of production less frustrating for executors dealing with deceased person’s files.

What about circumstances where the client is still living but the court has made a declaration that the client is incapable of managing themselves and their affairs? Since they lack the mental capacity to do so they can no longer give consent to waive solicitor- client privilege themselves. Under the Patient’s Property Act (the PPA”) we refer to these incompetent persons as “patients.” The PPA provides that upon application the court may appoint a personal representative, referred to as a “committee,” to manage the person’s personal affairs and their estate. This responsibility is a significant undertaking.

Without access to the patient’s estate planning file, a committee may not be able to manage the patient’s estate in a manner that is consistent with the patient’s estate plan.

For example, the patient’s Will may make bequests of specific property to specific persons. Think of the harm that can be done if a committee were to unwittingly frustrate the patient’s estate plan by disposing of assets, which are specifically gifted to someone in the will. A committee clearly should be able to know about those bequests so that the committee can ensure that those assets are preserved for the intended beneficiaries. There are many other circumstances where a committee may need to access the contents of a patient’s file materials from a lawyer such as if the committee is acting on behalf of a patient in the course of a court proceeding.

The case of Derlago v Derlago, (1994) 93 BCLR (2d) 307, 2ETR (2d) 315 is helpful as is the more recent discussion by Mr. Justice Savage in Re: Elsie Jones, 2009 BCSC 1306, at paras 12-13, which clarifies that the authority to make decisions regarding a patient’s property, including legal files, extends to the committee:

[12] The right to assert or waive solicitor-client privilege belongs to the client. A committee stands in the place of an incapable person, and therefore has the authority to make decisions with respect to the patient’s property, including legal files (section 15, Patients Property Act, R.S.B.C. 1996, c.349):

15 (1) Subject to section 16,

(a) the committee of a patient as defined by paragraph (a) of the definition of patient in section 1 has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind, and

(b) the committee of a patient

(i) declared to be incapable of managing his or her affairs has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind,

(ii) declared to be incapable of managing himself or herself has the custody of the person of the patient, and

(iii) declared to be incapable of managing himself or herself or his or her affairs has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind, and as well the custody of the person of the patient.

[13] Thus, in Derlago v. Derlago, [1994] B.C.J. No. 3333, a firm of solicitors objected to the disclosure of documents prepared in connection with the plaintiff’s will. Master Joyce ordered that the documents be disclosed because they were relevant and because the committee of the plaintiff had waived the privilege.

If a committee finds themselves having difficulty obtaining a solicitor’s file on behalf of a patient they should seek prompt legal advice.