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Incapacitated Without A Power Of Attorney And/or Representation Agreement?

Incapacitated without a Power of Attorney and/or Representation Agreement?

There comes a time in many people’s lives where they need assistance to make important personal decisions, including financial, medical, or legal decisions. Old age, injury, and mental illness are some factors that can leave an adult incapable of making decisions which are legally binding. Before a person loses capacity, they are able to name a power of attorney and/or. create a representation agreement as part of their estate planning. The person named in the power of attorney is given the ability to make financial and legal decisions on behalf of the person, should they lose capacity. The person named in a representation agreement is given the ability to make healthcare and living decisions on incapacitated person’s behalf. On the other hand, if a person becomes incapable before naming a power of attorney or creating a representation agreement, a family member or close friend may need to apply to become their committee.

Committees

There are two types of committees, each with different abilities and obligations. A committee of estate is similar to a power of attorney, in that they are able to make decisions on any financial and legal matters on the incapable person’s behalf. Alternatively, a committee of person is someone with the ability to make health care and living decisions on the incapable person’s behalf. Committees have all the powers that the incapable person would have, in respect to the specified matters. For example, as a committee of estate, one would be able to pay the incapable person’s credit card bills or choose to invest their money. However, the committee of estate would not be able to make the decision to move the person to an assisted living care facility.

What is Incapable?

Appointing a committee is a last resort measure and can only be appointed when the person is legally incapable. As per section 2 of the Patients Property Act (PPA), a person is incapable of managing their affairs because of either

  1. Mental infirmity arising from disease, age or otherwise, or
  2. Disorder or disability of mind arising from the use of drugs.
Committees must always act in the best interests of the incapable person.

To be ruled incapable under the PPA, the person must be incapable of managing their own affairs or be incapable of managing theirselves. In some cases, this could mean the person is completely unconscious, unable to make any decisions. In a different scenario, it could be someone who has developed Alzheimer’s disease and can’t recall their banking or financial information consistently and accurately.

In determining whether a person is incapable, the courts require 2 medical practitioners’ opinions on whether the person is legally incapable of managing their own affairs. The medical practitioners will consult with the person, conducting a full assessment of their mental ability to make decisions for themselves. Usually, the person applying to have the person ruled incapable must provide the affidavit evidence from the 2 different medical practitioners. There are two types of incapability that can be ruled, incapable of estate and incapable of person – each corresponding with the respective committee discussed above. People can be ruled both incapable of estate and incapable of person in some cases.

Who Can Become a Committee?

Under section 6 of the PPA, anyone can apply to be appointed by the courts as the committee. If multiple people apply, the courts will choose someone based on the best interests of the incapable person. When nobody applies, the Public Guardian and Trustee of British Columbia can be appointed. Essentially, when a person becomes incapable, there is always someone who can act on their behalf to ensure their affairs are not negatively impacted by their incapability.

It’s always best to prepare for any unfortunate circumstances – in this case, that means appointing a power of attorney before it may be too late. Having a power of attorney will remove the involvement of the courts in having to elect a possible committee. If you need to apply to become a loved one’s committee of estate or person, contact an experienced estate lawyer today. We will help you through the process, ensuring the best for you and your loved one.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

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