Life after incapacity: When planning isn’t enough

Life after incapacity: When planning isn’t enough

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By Kyle Johnson

Kyle Johnson is the new lawyer in town (at Sage Hill Law), specializing in wills and estates, family law, real estate and business law.
(Photo contributed)

What do you do if a loved one becomes unable to care for themselves or unable to manage their lives? It is one thing if this person is a minor – in which case they are presumably already being cared for and their lives managed to an extent. However, when that individual is a fully functioning adult with property and finances of their own, the situation can be more complicated.

It is rote advice for married couples to give each other power of attorney or representation agreement to allow the other spouse to manage their finances and care in the event of incapacity, but not everyone can take that step ahead of time. Not everyone has a spouse or other individual that they feel comfortable giving that authority to, and tragedy can strike and take away those that we thought would take care of us if we became incapacitated. If someone you care for becomes incapacitated and, for whatever reason, has not made the necessary steps to arrange for their care and the management of their finances, what can you do? 

Unfortunately, the process can be complicated – though not without good reason. British Columbia law provides for what is called a ‘committeeship’. This is when a person is designated by a court to care for an individual who has become incapable. This is termed either a committeeship of the person (ie management of someone’s care) or a committeeship of the estate (ie management of someone’s finances).

Unlike a power of attorney or a representation agreement, however, a committeeship is made after someone has become incapable and, because of that, there are safeguards to prevent potential abuse. These safeguards are necessary, but they make the process more rigorous and, thus, more expensive than if matters had been arranged when someone was still capable. 

The first of these safeguards is a report from two doctors that the individual is unable to manage his or her own affairs. Secondly, next of kin must be notified. This is to help make sure any disputes are dealt with before someone gains authority over another person and to help deter potential abuse. Third, the Public Guardian and Trustee – a British Columbia government entity charged with protecting the public from financial abuse and neglect – must be notified. Indeed, if no one is able to serve as the committee, then the Public Guardian can step in and manage the incapable individual’s affairs. Lastly, a BC Supreme Court judge must make an order that the committeeship is appropriate. 

The above process is obviously involved and can take some time. Contacting a lawyer to assist is highly recommended. Because of its complexity, the need for doctors’ opinions, and the need for court involvement, it can also be expensive. This is unfortunate, but an understandable consequence of the safeguards to protect vulnerable people from physical or financial abuse that may arise from those seeking control of them or their assets. 

As such, the best course of action is often the ‘rote advice’ referred to above: a power of attorney or a representation agreement made ahead of time and given to someone you trust. Of course, when planning for incapacity, you should consult with a lawyer because everyone’s situation is different. However, just be aware that someone did not plan for incapacity, or if those plans fell through, there is a solution. It is just time consuming, expensive and may not be what you would have wanted in the first place. 

(Kyle Johnson is a practicing lawyer in British Columbia. He has recently moved with his young family from Vancouver to Oliver and founded Sage Hill Law.)

 

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