Difference between revisions of "I Want to Help a Friend or Relative Manage Their Affairs"
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Revision as of 23:48, 29 March 2013
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. 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.
- 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]
- 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.
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.
More information on powers of attorney can be found in the People's Law School publication "Power of Attorney".
Representation agreement[edit]
- 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.
- 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.
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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. |
Committeeship[edit]
- 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.
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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. |
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:
- 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.
- Access Pro Bono, Lawyer Referral Service, Private Bar Lawyers.
- The Clicklaw common questions "How can I help a person who cannot manage their own affairs?" and "What is a "living will" and is one available in BC?".
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.
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This Guide explains the law and legal procedures in general. It is not intended to give legal advice on your particular legal problem, and should not be relied on for that purpose. Information in this Guide is accurate as at November 2012. Please note that fees and guidelines outlined in the Guide are subject to change. |