I am frequently approached by people who have family members diagnosed with debilitating conditions like dementia or Alzheimer’s. In addition to the daily challenges of helping these family members with their day-to-day needs, such as medication and personal care, these family members are faced with needing access to the person’s finances to pay for the nursing care, medications, and more. Usually the person’s assets are in that person’s name, and unless there is a valid enduring Power of Attorney, the family cannot access the assets to pay for care, nor can they sell the person’s home if necessary. Because the family member no longer has legal capacity, it is too late for him or her to execute a Power of Attorney or Representation Agreement, under which he or she could nominate who she wanted to make decisions for her.
In these kinds of cases, a committeeship (Adult Guardianship) is the best course of action. A committeeship is a way of protecting a vulnerable adult who is no longer capable of managing him or herself, his or her affairs, or both, under the provisions of the Patient’s Property Act. The adult’s vulnerability may stem from the gradual onset of a condition, like dementia, or suddenly, such as following an accident. Once a person is appointed committee of the vulnerable person, he or she will be granted the ability to make decisions regarding the vulnerable adult’s person (health care, residence), the person’s estate (financial decisions), or both, depending upon what is granted by the court. More than one person can be appointed committee.
In a simple case, a brief court appearance by a lawyer is required to have someone appointed committee. The court will base its decision on what is in the best interest of the vulnerable adult, and in making this decision, the Court will review evidence, which includes:
- the sworn statements (called affidavits) of two medical doctors regarding the vulnerable adult’s capability, diagnosis and prognosis;
- a sworn statement from the applicant setting out the vulnerable adults’ family, residence, and financial situation;
- the consent from other affected family members, if possible; and
- the position of the Public Guardian and Trustee, which reviews the application before it goes before the judge.
The Court will make an order if it is in the best interests of the vulnerable adult, and will consider:
- whether immediate family members are in agreement;
- whether there is any conflict between family members or between the family and the adult;
- what is the level of previous involvement with the vulnerable adult;
- what is the proposed committee’s level of understanding of the vulnerable adult’s current situation, and will be able to cope with future changes;
- whether the proposed committee will provide love and support;
- whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the vulnerable person’s benefit;
- who is best to advocate for the vulnerable adult’s medical needs;
- the plan of care and management for the vulnerable adult and his or her affairs.
In the usual case, the evidence is presented in written form and applicants do not have to attend the hearing. Depending upon the family relationships and the person’s financial situation, the court may require them to post a bond in security for their management of the assets. Once made committee, the applicant will also have to have their accounts of the person’s financial assets reviewed on a regular basis.