One of the most common questions I've been asked most about Power of Attorney (POA) is, what if I don't have a POA and I become incapable of making decisions for myself? My answer is - you're going to create a lot of trouble for your family or whoever needs to help you to manage your affairs.
When an adult needs help managing their affairs because of mental incapability due to an illness, accident, disability or diseases associated with aging, their judgment may be impaired in some way. They may forget to pay bills or put money away and forget where it is. The adult may also be confused about banking, investments, property, and personal belongings. However, they may have planned ahead and authorized someone else to make decisions and managing their financial and legal affairs through an enduring power of attorney.
But what if the adult does not have a POA?
If a POA not in place and someone is needed to assist because the adult is incapable, usually a friend or relative applies to the court to manage the adult’s financial affairs. This is known as a “committee of estate” under the Patients Property Act. Where there are no family or friends who are willing and able to act as committee, the Public Guardian and Trustee (PGT) may be appointed instead.
A committee of estate is a person who is appointed to make financial and legal decisions for an adult who is incapable and requires assistance. A committee of estate has many responsibilities including securing assets, confirming eligibility for benefits, receiving income, paying bills, contracting for services, maintaining, purchasing and selling real property, managing investments, preparing tax returns and appropriately providing for legal dependents. Legal responsibilities include acting as litigation guardian on civil law matters. In carrying out these roles, a committee is required to foster the independence of the adult and encourage the adult’s involvement in any decision making that affects the adult.
To become a committee, you must apply to the BC Supreme Court to be appointed by an order under the Patients Property Act. But first, you must confirm that the person is mentally incapable. The person’s doctor may be able to help you do that. A committee can be appointed only if two doctors say the person is mentally incapable. You may also engage a lawyer specializing in this area to assist you with the required court documents.
Keep in mind that a committee of estate does not make decisions related to health care, facility placement and living arrangements or other personal decisions. Some or all of these decisions may be made by other types of substitute decision makers such as a committee of person, a representative under a representation agreement or a temporary substitute decision maker for health care. If consent for a health care decision is needed and there is no one else to provide it, the PGT may be authorized to act as a temporary substitute
Sound like a lot of hoops to jump through? Absolutely. That's why planning ahead is important. Preparing a Power of Attorney is much easier and much less expensive than a committee order. The catch is that a person must sign a POA while still mentally capable. So it doesn’t work for a person who is already incapable.
A bit about myself. I am a member of the British Columbia Notaries Public Society. I want to answer some of the most common questions that my clients have through my blog. Hope you find it useful.