by Sunjeet Grewal
Powers of Attorney (POA), which deal with legal and financial decisions, and Representation Agreements (RA), which deal with health care decisions, are important pieces for every estate plan, however, often times people fail to have these prepared. We are currently seeing a rise in instances where an individual has lost capacity and no POA or RA has been put place in order for someone to act on their behalf. This then leaves the incapable individual with no one to make decisions regarding medical care, finances and legal decisions on their behalf, for example. A circumstance such as this is where a committeeship application would come in.
In the event that a POA and/or an RA are not in place and a person is to deemed incapable, their loved ones would be unable to deal with things such as bills, finances, medical issues or making decisions regarding care and treatment for the incapable individual, for example. This situation is becoming more common as our population ages, life span increases and long-term assistance or care becomes more common. These situations leave loved ones of the incapable person helpless.
In order to be able to deal with the legal decisions, finances and health care of an incapable individual you would be required to apply for committeeship of the incapable individual’s person and/or their estate. This application process takes a few months and can become quite costly. A loved one or person with whom the incapable individual has a trusting relationship would need to go through a court application in order to be appointed as committee of the incapable individual’s person and/or estate.
The application process requires obtaining affidavits for the person applying, as well as the opinions of two medical professionals, along with consent from next of kin of the incapable individual consenting to the applicants appointment. A review and submission of all the incapable individual’s finances and assets is also necessary. A lawyer would assist with preparing all documentation, interviewing loved ones, assessing financial information and obtaining affidavits from physicians as well as attending to the court proceedings.
The filed application is also reviewed by the Public Guardian and Trustee of British Columbia (PGT) during this process. The PGT reviews the application and provides their opinion to the court regarding the suitability of the applicant and suggested security measures to protect the incapable individual’s estate.
Once appointed, the Committee will be able to deal with finances, property, legal decisions, health care decisions, and medical treatments, for example, on behalf of the incapable individual. The committee also has a continual duty to keep strict accounting and records of all transactions and matters relating to the incapable individual. These details are then reported to the PGT and reviewed on a rather regular basis.
This issue brings even more attention to the importance of having POA’s and RA’s in place. The alternative is much more taxing, puts the incapable person in danger and creates additional stress in already difficult circumstances. However, though it is a cumbersome process to be appointed and act as a committee, it is a welcome solution for those whose hands are tied from caring for a loved one who has lost capacity.