Written by Cassandra Drake
It is a situation that many people are faced with, but most do not know what their options are.
If your loved one had the opportunity to do their estate planning, he or she may have an enduring power of attorney, which can be used even after a person is no longer mentally capable. However, many people do not do the necessary estate planning for any number of reasons and once a person is no longer mentally capable, they cannot do any type of estate planning. In that case, the person’s family members or friends must turn to the Court to grant them the authority necessary to make personal and financial decisions for them.
Committeeship is a form of adult guardianship. A committee is a person or institution appointed by the Supreme Court of British Columbia to make personal, medical, legal, and financial decisions for someone who is incapable of doing so, known as the patient.
In BC, the Patients Property Act [PPA] sets out how a committee is appointed and how the patient’s (the person lacking capacity) affairs are managed.
The committee(s) has a fiduciary responsibility to the patient and must act in the patient’s best interest at all times.
Committeeship appointments require the court to declare that a patient is:
- incapable of managing his/her affairs;
- incapable of managing himself or herself; or
- incapable of managing both his/her affairs and himself or herself.
Often, people lose capacity to manage their financial and legal affairs before they lose capacity to manage themselves, so in those cases, a committee of estate is all that is required. For example, a person may know how to cook and bathe, but not how to handle banking and legal affairs.
A committee of estate may be responsible for:
- handling the person’s property;
- doing the person’s banking;
- paying the person’s expenses;
- budgeting for the person’s family;
- selling the person’s property;
- entering into contracts for the person and running the person’s business;
- dealing with any lawsuits involving the person;
- filing the person’s income tax returns
- applying for pensions and other benefits for the person
Cassandra Drake is a partner in the general litigation group at Lindsay Kenney LLP acting primarily as an estate litigator and family lawyer. Cassandra joined the firm in 2014 and became a partner in 2019. Cassandra has appeared on behalf of clients and assisted counsel on matters before the Provincial and Supreme Courts of British Columbia.
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