Is it too late for mum to have a power of attorney?

Power of attorney

A power of attorney will appoint an “attorney” to act on behalf of an adult regarding their financial affairs. That could include banking, selling real estate or filling taxes.

If you are trying to assist your elderly parents with day-to-day financial tasks and they have not appointed you as power of attorney, you will hit roadblocks. You won’t be able to manage their money or property, and institutions like banks and the Canadian Revenue Agency will not communicate with you without a power of attorney on file.

If you or your parents have not signed a power of attorney, and their capacity is still OK, it is prudent to schedule a meeting with a lawyer right away to have it done. The lawyer will assess the adults’ legal capacity at that point.

If, however, a loved one no longer has legal capacity, there is a legal process called “committeeship,” which allows the Supreme Court of British Columbia to appoint a “committee” to manage the financial affairs of another adult during their life. That effectively grants the committee or committees authority over financial and health decisions of the incapacitated adult.

Regrettably, the process of obtaining committeeship is long and expensive. It provides substantial authority to act on behalf of the incapacitated adult but will not allow you to draft a will on behalf of that individual. If there is no will in place, the Wills, Estates and Succession Act, SBC 2009 c 13, will govern how an estate is distributed.

A client approached me about six months ago because her mom had dementia and she needed to sell her mother’s home to pay for her care.

Her mom never prepared a power of attorney and now it was too late. I advised her a commiteeship petition can take between 3 and 6 months to complete. The daughter took issue with this as she needed to do things on her mother’s behalf right away.

Unfortunately, in that case, the client was stuck and would have to wait. Furthermore, the cost of a commiteeship petition is thousands of dollars. She told me she wished her mother had done a Power of Attorney earlier, which would have been several hundred dollars.

One of the reasons a committeeship petition takes so long is because the court requires medical reports on capacity from two doctors. These doctors can take a significant amount of time to coordinate assessments. It also takes time to prepare lengthy materials for the court to review, you may need to obtain consent from a surviving spouse and children, as well as consent of the B.C. Public Guardian and Trustee.

If you are in a situation where you’d like a power of attorney prepared or need to obtain committeeship. please reach out to discuss your options. I can be reached at 778-478-8555 or by email at [email protected].

The information provided in this article does not, and is not intended to, constitute legal advice; all information and content are for general information purposes only.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

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About the Author

Wes Forgione is a Partner with Montgomery Miles and Stone Law Firm located in Kelowna, BC. He was born and raised in Toronto and attended Osgoode Hall Law School prior to moving to Kelowna in 2013.

Wes practices in the areas of estate planning, real estate, and corporate/commercial law. His clients include families who need to organize their affairs, first time and experienced home buyers and developers, and new or established business owners. In this capacity, he often acts as “quarter back” for his clients and provides real time strategic and risk management advice.

Wes is committed to professional excellence. His approachability distinguishes him from other lawyers' and he prides himself on avoiding the artificial formality lawyers are known. He provides expert advice in a friendly and efficient manner. 

In the community, he regularly presents for mortgage brokers and realtors. He also participates in the Free Wills Month for charity.

In his spare time, Wes enjoys spending time with his beautiful wife, his babies Henry and Archie , and sheltie in the great outdoors that Kelowna has to offer. He is also an avid fitness enthusiast, and trains Muay Thai with an aim to compete eventually.

You can contact Wes at 778-478-8555 or by email at [email protected].

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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