Understanding Power of Attorney, Representation Agreements and Committeeship
In certain circumstances, it can be necessary or convenient for one person to have the ability to act on behalf of another person. For example, a person who has suffered a debilitating health event may want their spouse to be able to deal with their legal affairs or make health care decisions while they are incapacitated.
In this situation, the person wishing to grant another person that right can execute an “enduring power of attorney” (for legal decisions) or a “representation agreement” (for health care decisions). These documents, if drafted appropriately, are meant to be effective (or “endure”) after an event of incapacity.
However, it can be a problem if the person no longer has the mental capacity to legally make a power of attorney or representation agreement. For example, if that person suffers from dementia, it is likely they will not be able to execute a legally effective power of attorney or a representation agreement. In those situations, it is necessary to have the Court appoint a representative.
Obtaining a Committeeship
In B.C., the Patients Property Act (the “PPA”) provides the authority for the court to appoint someone, called a “committee” under the PPA, to act on behalf of another person, called the “patient” under the PPA. When no other suitable person is willing to do so, it is also possible for the Public Guardian and Trustee to be appointed as representative (sometimes under a different process).
To be appointed, the proposed committee must apply to the Court and establish that the patient is incapable of managing their affairs, their personal care, or both. The proposed committee must present two affidavits from medical doctors to establish this and must prepare an affidavit to show that the proposed committee is the best person for the task.
Being prepared for incapacity
It can be expensive to make an application for Committeeship under the Act, and it is almost always better to take steps to put an enduring power of attorney or representation agreement in place before the occurrence of a health event that can undermine capacity.
When drafting these agreements, keep in mind there are formalities that must be complied with, so care must be taken in doing so. Care must also be taken in appointing the proper person, as there is opportunity to abuse the powers granted.
At Rella Paolini & Rogers, we have experience with powers of attorney or representation agreements, and with applications under the PPA for appointment of a committee. If you need assistance with either of these matters, please contact our office at 250-426-8981 or firstname.lastname@example.org.