I Want to Help a Friend or Relative Manage Their Affairs

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

Power of attorney

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.

More information on powers of attorney can be found in the People's Law School publication "Power of Attorney".

Representation agreement

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.

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

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.

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

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

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.

A person who gives a gift or bequest to someone, freely and without expectation of payment in return.

In contract law, a promise made by someone about a certain state of affairs, like "the plumbing was replaced last year" or "I had a vasectomy two years ago." See "misrepresentation."

In law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary," without owning that property and usually without acquiring an interest in that property other than as payment for their services. The trustee holds the property in trust for the beneficiary. See "constructive trust," "ownership," "possession" and "resulting trust."

(1) A lawyer, or (2) the advice given by a lawyer to their client.

A person who is younger than the legal age of majority, 19 in British Columbia. Not to be confused with "miner," which means something else altogether. See "age of majority."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

A person authorized to administer affirmations and oaths, and to execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See "barrister and solicitor.”

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

The conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property."

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

Acting in an honest, truthful, open, and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase bona fide. See "bad faith."

(1) A lawyer or a person other than a lawyer who helps clients with legal issues, or (2) to argue a position on behalf of someone.

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."