As we’ve discussed in a previous blog post, a power of attorney is a legal document that gives a person (the “attorney”) the power to take care of another person (the “donor’s”) financial and legal matters.
Let’s say you incur a traumatic brain injury as the result of a car accident, and you are rendered “mentally incapable”. What happens now to your financial affairs?
You have a power of attorney:
If you had already prepared a Power of Attorney while you had capacity, then the person to whom you had granted the Power of Attorney (the “attorney”) will now legally be able to take care of your financial and legal affairs. Instead of focusing time and energy on worrying about who would manage your affairs, your loved ones can direct more attention to your physical care.
You do not have a power of attorney:
But what if you do not have a Power of Attorney? No one has the legal power to manage your affairs without already possessing a Power of Attorney or Court Order. Not even your spouse or child! So how would your loved ones make sure your financial and legal affairs are managed?
In this case, the Court will need to appoint a person or body (a “committee”) to manage your affairs. To start this process, your loved ones will need to prepare a number of documents, including:
• an application to the Court for an order declaring your incapability
• affidavits from two doctors proving your mental incapability
• an “affidavit of kindred and fortune” that sets out particulars of your family and financial affairs
Only after considering your application and declaring you incapable will the judge then appoint a committee. As you can see, this could be a potentially complicated and lengthy process.
(For more details on Committeeship, click here)
If you want to ensure that a specific person of your choice makes financial and legal decisions for you in the case of your mental incapacity (and to avoid time consuming and expensive Court applications), the best way to do so is to have a Power of Attorney.
(To read more about granting a Power of Attorney, click here)
If you or a loved one is in need of advice regarding Powers of Attorney or Committeeship, consult Vancouver and Burnaby Incapacity Planning lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at [email protected] or 778-372-7107.
