Part of my practice involves obtaining committeeships for adults (adult guardianships) who have lost mental capacity, which I discuss in this post http://www.bcheritagelaw.com/blog/estate-litigation/what-is-a-committeeship-and-why-you-might-need-one/. In the case of a committee application, sometimes the family doctor or another family member can offer evidence through affidavit about the vulnerable adult’s wishes. This evidence may be helpful for the Court in making a committee application, and helpful for the appointed committee (guardian) as they begin to make decisions for the adult.
With proper planning, a committee application is usually not necessary. However, your family members may live significant distances away, or have acrimonious relationships with each other, and thus not be fully aware of your wishes. If possible, it may be wise to have some significant discussion with your chosen decision makers (i.e. anyone you nominated in a Representation Agreement and/or Power of Attorney, family members, and those you suspect might cause some fuss) about your wishes, and to have some of those wishes legally documented. Here’s some topics to consider:
1. Do you have any views on where you want to live? Do you want to stay at home as long as possible? Do you wish to move in with particular family members, or do you want to live in a carehome with your friend? For example, if you live in Vancouver, but your children are in Nanaimo and Victoria, what is your preference, and why?
2. Who do you want to be able to visit? If there is family acrimony, for example, between your current spouse and your children from a previous marriage, do you want to give some directions about visitation? Are there close friends that your children might not know about because they live elsewhere? You might want to create a contact list and share it.
3. Are there any activities that are important to you, even if you are no longer able to fully participate? For example, you might be a member of your church choir for many years, and if the day should come where you are no longer able to participate, you would appreciate being taken to performances.
4. Religion is often a touchy subject, but if you have views, you should make them known while you can.
5. If you have an illness, and you think it may worsen, you may wish to discuss possible treatment options. For example, if you are diagnosed with cancer, and become incapacitated, what treatment (if any) do you wish to have? Family members might have conflicting views about what your views are based upon conversations at different times in your life, and might be unsure how to help you.
6. Do you regularly deal with certain professionals? Do you have a specific financial advisor or accountants? Do you deal regularly with a specific person at the bank? How are your finances organized? Where do you draw your income from?
7. Do you own anything outside of Canada? Did you buy speculative real estate on your last trip to Mexico, or do you have a pension from when you lived in Italy before you immigrated to Canada? Your family might not know about assets or income from outside of Canada, and might not be able to read the paperwork if they should find it later and you are no longer able to explain.
8. What legal documents are already in place, and have they been used? If one child has been granted a power of attorney, and used it at your direction, are there any decisions that might generate disputes later? For example, did you tell your daughter to sell the cottage and invest the proceeds in a specific way? Did you execute a Power of Attorney on or before August 31, 2011, which is silent on remuneration, but you have been authorizing your son to take a monthly amount for helping you? You may wish to consult a lawyer about having the document updated, or to have the decisions documented to prevent later disputes.

In addition to being important topics to discuss, many of these items can be documented in a carefully drafted Representation Agreement, Advance Directive, or Power of Attorney. Doing so may ease the burden on your family when trying to make difficult decisions, and give you some comfort that your wishes will be followed.

June 12-13, 2009
Donald Gordon Conference Centre
Kingston, ON

Presented by the National Elder Law Section and the Continuing Legal Education Committee of the Canadian Bar Association

Conference Co-Chairs:
Mary-Alice Thompson, (Kingston)
Prof. David Freedman, Queen’s University Faculty of Law (Kingston)

This conference brings academics and practitioners together to talk about one of the hottest emerging areas of law – Elder Law. Join us for one and a half days and bring yourself up to speed on the latest developments across the country. Good practice relies on solid research and good theory is informed by practical experience. This is a unique conference where academics will share their research and practicing lawyers their experience and you are invited to participate.

The program brochure and registration information will be posted on the CBA web site shortly.