Difference between revisions of "I Want to Help a Friend or Relative Manage Their Affairs"

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{{Template:Legal Help Guide TOC}}There are now a number of options for assisting people who have trouble dealing with their financial and personal affairs. Some of these options are:
{{Template:Legal Help Guide TOC}}There are now a number of options for assisting people who have trouble dealing with their financial and personal affairs. Some of these options are:
*Powers of Attorney
* '''Power of attorney:''' A power of attorney is a document you (the '''donor''') can sign to give someone else the power to conduct your financial affairs. You have to be mentally capable to give a power of attorney, but you can make the power '''enduring''', so that it is still in effect if you later lose your mental capacity.
*Representation Agreements
* '''Representation agreement:''' A representation agreement is a document prepared for a person (the donor) who, though they may be mentally incapable of making a contract or managing their health care, can still trust another person and communicate their desire for that person (their '''representative''') to make decisions on their behalf.
*Committeeship
* '''Committeeship:''' Where a person is not mentally capable of managing his or her affairs, a family member or the Public Trustee can apply to the Supreme Court of BC for an order declaring the person to be mentally incapable and appointing a '''committee''' with the authority to handle financial affairs for them. Once a committee is appointed, the person has no further say about the affairs over which the committee has authority.


== Powers of Attorney ==
== First steps ==
=== Power of attorney ===


A '''Power of Attorney''' is a document you (the '''Donor''') can sign to give someone else the power to conduct your financial affairs. You have to be mentally capable to give a Power of Attorney, but you can make the power '''enduring''', so that it is still in effect if you later lose your mental capacity.
# Identify an "attorney". This should be someone you trust with your money (for example, a spouse, friend or immediate family member). The word "attorney" as used here, does not mean and does not have to be a lawyer.
# Get legal advice or at least review the resources described below:
#* You will want to consider whether to do a "general" power of attorney, or one limited to specific tasks.
#* You will also want to consider whether the power should be "enduring" (continuing even if you become mentally incapable).
# Draft and sign the power of attorney and have it witnessed. Make a number of certified copies. A lawyer or notary public can certify copies.


=== First steps ===
If you own real estate, and you wish to give your attorney the power to sell or mortgage your real estate for you, you must sign the power of attorney in front of a lawyer or notary public in the form required by the Land Title Office.
#Identify an ‘attorney’. This should be someone you trust with your money (for example, a spouse, friend or immediate family member).
#Get legal advice or at least review the resources described below:
#*You will want to consider whether to do a “general” power of attorney, or one limited to specific tasks.
#*You will also want to consider whether the power should be “enduring” (continuing even if you become mentally incapable).
#Draft and sign the Power of Attorney and have it witnessed. Make a number of certified copies. A lawyer or notary public can certify copies.


A sample power of attorney can be found in the People’s Law School publication “Power of Attorney”. See Resource #42 in Part 2 for the website where you can download this publication.
A sample power of attorney can be found in the People's Law School publication "[http://www.clicklaw.bc.ca/resource/1019 Power of Attorney]".  


== Representation Agreements ==
=== Representation agreement ===
A '''Representation Agreement''' is a document prepared for a person (the '''Donor''') who, though they may be mentally incapable of making a contract or managing their health care, can still trust another person and communicate their desire for that person (their '''Representative''') to make decisions on their behalf.


A Representation Agreement can authorize a Representative to make some or all of a wide variety of decisions on behalf of the Donor, such as:
A representation agreement can authorize a representative to make some or all of a wide variety of decisions on behalf of the Donor, such as:
*routine financial decisions;
*routine financial decisions,
*health and personal care decisions;
*health and personal care decisions,
*hiring legal counsel;
*hiring legal counsel,
*overriding the Donor’s refusal of help or medical treatment;
*overriding the donor's refusal of help or medical treatment,
*selling real estate;
*making arrangements for the donor's minor children.
*making arrangements for the Donor’s minor children.


{{Tipsbox
{{Tipsbox
| tips = You must be at least 19 years of age to make a Representation Agreement in British Columbia. You must also be at least 19 to make a will, unless you are or have been married or you are an active member of the armed forces or a mariner at sea.
| tips = You must be at least 19 years of age to make a representation agreement in British Columbia. You must also be at least 19 to make a will, unless you are or have been married or you are an active member of the armed forces or a mariner at sea.
}}
}}


=== First steps ===
#The person wanting a representation agreement needs to identify a representative. This needs to be someone they trust, not only with their money, but with other decisions they may wish to include in their representation agreement.
#The person wanting a Representation Agreement needs to identify a representative. This needs to be someone they trust, not only with their money, but with other decisions they may wish to include in their Representation Agreement.
#Speak with legal or health care professionals for advice on the contents of a representation agreement.
#Speak with legal or health care professionals for advice on the contents of a Representation Agreement.
#Draft and sign the representation agreement and have it witnessed. Make a number of certified copies. A lawyer or notary public can certify copies.
#Draft and sign the Representation Agreement and have it witnessed. Make a number of certified copies. A lawyer or notary public can certify copies. See below, under “Resources”, for further information about Representation Agreements.


Self-help kits for Representation Agreements can be purchased for $50 from [[Nidus Personal Planning Resource Centre and Registry]].
Self-help kits for representation agreements can be purchased for $75 from [[Nidus Personal Planning Resource Centre and Registry]].


== Committeeships ==
=== Committeeships ===
Where a person is not mentally capable of managing his or her affairs, a family member or the Public Trustee can apply to the Supreme Court of British Columbia for an order declaring the person to be mentally incapable and appointing a '''Committee''' with the authority to handle financial affairs for them. Once a Committee is appointed, the person has no further say about the affairs over which the Committee has authority.
#Discuss with the person's family doctor to decide if committeeship is necessary.
 
#Have the person examined by two medical doctors, who must then swear an affidavit (in front of a lawyer or notary public) saying that the person is mentally incapable and provide the reason for the incapacity.
=== First steps ===
#Complete an affidavit describing the assets, income, expenses and liabilities of the incapable person and a list of his or her next-of-kin. These documents need to be filed with the application for Committeeship in the BC Supreme Court Registry and copies of them served on the incapable person and the Public Trustee.
#Discuss with the person’s family doctor to decide if Committeeship is necessary.
#Have the person examined by two medical doctors, who must then swear an Affidavit (in front of a lawyer or notary public) saying that the person is mentally incapable and provide the reason for the incapacity.
#Complete an Affidavit describing the assets, income, expenses and liabilities of the incapable person and a list of his or her next-of-kin. These documents need to be filed with the application for Committeeship in the BC Supreme Court Registry and copies of them served on the incapable person and the Public Trustee.
#Make the application in court.
#Make the application in court.


== What happens next ==
== What happens next ==
Once the Power of Attorney, Representation Agreement or Committeeship is in place, the attorney, representative or committee—as the case may be—will have the legal authority described in the document and must act in the utmost good faith in the best interests of the donor.
Once the power of attorney, representation agreement or committeeship is in place, the attorney, representative or committee - as the case may be - will have the legal authority described in the document and must act in the utmost good faith in the best interests of the donor.


A donor with mental competency can withdraw a Power of Attorney or Representation Agreement. A Committeeship can only be withdrawn by Court Order.
A donor with mental competency can withdraw a power of attorney or representation agreement. A committeeship can only be withdrawn by court order.


== Where to get help ==
== Where to get help ==
See the [[Resource Guide]] in Part 2 for a list of helpful resources. Your best bets are:
See the [[Resource List]] in this Guide for a list of helpful resources. Your best bets are:
*[[Public Guardian and Trustee]]. See their publications, including “It’s Your Choice: A Guide to Making a Representation Agreement”.
*[[Public Guardian and Trustee]]. See their publications, including "It's Your Choice: A Guide to Making a Representation Agreement".
*[[Nidus Personal Planning Resource Centre and Registry]]
*[[Nidus Personal Planning Resource Centre and Registry]].
*[[Access Justice]], [[Lawyer Referral Service]], [[Salvation Army Pro Bono Lawyer Consultation Program]], [[Private Bar Lawyers]].
*[[Access Pro Bono]], [[Lawyer Referral Service]], [[Salvation Army Pro Bono Lawyer Consultation Program]], and [[Private Bar Lawyers]].
* The Clicklaw common question "[http://www.clicklaw.bc.ca/question/commonquestion/1044 How can I help a person who cannot manage their own affairs?]".  


Before meeting with a lawyer or advocate, complete the form [[Preparing for Your Interview]] in Part 3 of this Guide. Make sure you bring copies of all documents relating to your case.
Before meeting with a lawyer or advocate, complete the form [[Preparing for Your Interview]] included in this Guide. Make sure you bring copies of all documents relating to your case.


{{Tipsbox
{{Tipsbox
| tips = You can also apply for committeeship of a mentally incapable person’s personal and medical decisions. This application and the responsibilities that come with it can be complex. You may wish to speak with a lawyer before proceeding.
| tips = You can also apply for committeeship of a mentally incapable person's personal and medical decisions. This application and the responsibilities that come with it can be complex. You may wish to speak with a lawyer before proceeding.
}}
}}


 
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Revision as of 02:24, 24 January 2012

There are now a number of options for assisting people who have trouble dealing with their financial and personal affairs. Some of these options are:

  • Power of attorney: A power of attorney is a document you (the donor) can sign to give someone else the power to conduct your financial affairs. You have to be mentally capable to give a power of attorney, but you can make the power enduring, so that it is still in effect if you later lose your mental capacity.
  • Representation agreement: A representation agreement is a document prepared for a person (the donor) who, though they may be mentally incapable of making a contract or managing their health care, can still trust another person and communicate their desire for that person (their representative) to make decisions on their behalf.
  • Committeeship: Where a person is not mentally capable of managing his or her affairs, a family member or the Public Trustee can apply to the Supreme Court of BC for an order declaring the person to be mentally incapable and appointing a committee with the authority to handle financial affairs for them. Once a committee is appointed, the person has no further say about the affairs over which the committee has authority.

First steps[edit]

Power of attorney[edit]

  1. Identify an "attorney". This should be someone you trust with your money (for example, a spouse, friend or immediate family member). The word "attorney" as used here, does not mean and does not have to be a lawyer.
  2. Get legal advice or at least review the resources described below:
    • You will want to consider whether to do a "general" power of attorney, or one limited to specific tasks.
    • You will also want to consider whether the power should be "enduring" (continuing even if you become mentally incapable).
  3. Draft and sign the power of attorney and have it witnessed. Make a number of certified copies. A lawyer or notary public can certify copies.

If you own real estate, and you wish to give your attorney the power to sell or mortgage your real estate for you, you must sign the power of attorney in front of a lawyer or notary public in the form required by the Land Title Office.

A sample power of attorney can be found in the People's Law School publication "Power of Attorney".

Representation agreement[edit]

A representation agreement can authorize a representative to make some or all of a wide variety of decisions on behalf of the Donor, such as:

  • routine financial decisions,
  • health and personal care decisions,
  • hiring legal counsel,
  • overriding the donor's refusal of help or medical treatment,
  • making arrangements for the donor's minor children.
Tipsandnotes.png
You must be at least 19 years of age to make a representation agreement in British Columbia. You must also be at least 19 to make a will, unless you are or have been married or you are an active member of the armed forces or a mariner at sea.
  1. The person wanting a representation agreement needs to identify a representative. This needs to be someone they trust, not only with their money, but with other decisions they may wish to include in their representation agreement.
  2. Speak with legal or health care professionals for advice on the contents of a representation agreement.
  3. Draft and sign the representation agreement and have it witnessed. Make a number of certified copies. A lawyer or notary public can certify copies.

Self-help kits for representation agreements can be purchased for $75 from Nidus Personal Planning Resource Centre and Registry.

Committeeships[edit]

  1. Discuss with the person's family doctor to decide if committeeship is necessary.
  2. Have the person examined by two medical doctors, who must then swear an affidavit (in front of a lawyer or notary public) saying that the person is mentally incapable and provide the reason for the incapacity.
  3. Complete an affidavit describing the assets, income, expenses and liabilities of the incapable person and a list of his or her next-of-kin. These documents need to be filed with the application for Committeeship in the BC Supreme Court Registry and copies of them served on the incapable person and the Public Trustee.
  4. Make the application in court.

What happens next[edit]

Once the power of attorney, representation agreement or committeeship is in place, the attorney, representative or committee - as the case may be - will have the legal authority described in the document and must act in the utmost good faith in the best interests of the donor.

A donor with mental competency can withdraw a power of attorney or representation agreement. A committeeship can only be withdrawn by court order.

Where to get help[edit]

See the Resource List in this Guide for a list of helpful resources. Your best bets are:

Before meeting with a lawyer or advocate, complete the form Preparing for Your Interview included in this Guide. Make sure you bring copies of all documents relating to your case.

Tipsandnotes.png
You can also apply for committeeship of a mentally incapable person's personal and medical decisions. This application and the responsibilities that come with it can be complex. You may wish to speak with a lawyer before proceeding.