The long and winding road towards a Committeeship Order
In a perfect world people would not get sick. In a perfect world there would be no such thing as Alzheimer’s. In a perfect world, a husband or wife’s decision regarding their spouse’s medical treatment would be sufficient authority for the doctors to act. However, ours is not a perfect world. Ours is a world where financial institutions and medical practitioners are all concerned about getting sued if they follow the wrong instructions. In a world where unscrupulous people take advantage of sick or incapable people, the law has no other choice but to be strict on who can have the legal authority to act on someone’s behalf when it comes to financial and medical matters.
The law states that so long as an individual has the legal capacity to make their own decisions regarding their own financial matters and medical treatment, they may do so. However, once a person loses that legal capacity, either because of age, an accident or disease, only authorized individuals can speak and/or act on behalf of that person.
As I have said in previous articles, the easiest way to ensure that your wishes are followed regarding your financial affairs and medical treatment is to have both a General Power of Attorney (GPA) and a Health Care Directive (HCD). These documents, however, can only be created if the individual still has the legal capacity to make decisions. A person who already has Alzheimer’s no longer possesses the necessary legal capacity to execute these documents. A person who is in a coma no longer has the legal capacity to provide instructions to create these documents. Only a person who is healthy and can voice their wishes has the necessary legal capacity to execute a GPA and a HCD.
If an individual no longer has the legal capacity to make decisions and provide instructions regarding their financial affairs and/or their medical treatment, the only option available to the family is to obtain a Committeeship Order from the Court of Queen’s Bench.
What is a Committeeship Order? A Committeeship Order is a legal ruling from the Courts appointing an individual or individuals to the legal position of Committee over the person’s property and/or personal care. However, depending on the person’s circumstances, the process could become complicated.
In order for a Committee to be appointed, the first step is to have two doctors who have recently examined the individual state, in the form of an affidavit, that the individual is no longer capable to managing their own affairs and requires assistance. Once affidavits from two doctors are obtained, the applicant needs to swear an affidavit and apply to court to be named Committee. This is where the problems could arise.
There is an order of priority over the individuals who could become the Committee of a person. The first priority is to the spouse, then to the children, then parents and then siblings. If the individual is married, the obvious choice is the spouse. However, if the person is widowed or divorced or if the spouse doesn’t want to become the Committee, the person’s children would have equal claim to being named Committee. This is where some difficulties could arise. In the situation where there are several children (or several siblings for a single person) and there is no agreement amongst the family as to who shall act, each child or sibling can make a separate claim to being named Committee. If, however, the individual’s children or siblings (as the case may be) all agree that it will be one particular person, each and every child (or sibling) will need to either renounce their claim or nominate the person making the application.
Once the issue of who will make the application is determined, all the necessary court documents, affidavits and applications are then filed in court. The court will then review the documents and make a decision.
Once the court reaches a decision, they will issue an Order appointing the applicant. At this point, the applicant becomes the Committee. The Committee will now have the right to deal with the individual’s financial assets and medical care. The Committee is also under an obligation to report to the court on a regular basis. Usually, the Committee must file an Initial Inventory of all the assets of the individual within six months of the Order being issued. After that, usually every two years, the Committee must apply for a Passing of Accounts. This means that the Committee must ask the court to approve all the actions it has done during that time period. That is why it is very important that whoever is named Committee keep careful records.
The entire process to obtain a Committee will take at least a few weeks and can sometimes take months or even years, depending on the circumstances. But, once appointed, the Committee is responsible for the rest of the individual’s life or until such time as the Court revokes the Order or makes a change to it.
Accidents and medical situations do not care if you are 20, 55 or 80. In the past year, I have had to obtain a Committeeship Order for a young man in his late twenties because a car accident left him a paraplegic. His parents were the ones who applied to become his Committee. They were devastated over his situation and often were close to tears when we spoke about his situation. However, the young man didn’t have a will, a power of attorney or a health care directive. As a young man, he didn’t think it was necessary. He was obviously wrong.
The process of obtaining a Committeeship Order can be long and frustrating and it will be expensive. There is only one way to avoid this process should you find yourself incapacitated – make sure you already have a valid General Power of Attorney and Health Care Directive. Remember, you are never too young to have these documents because accidents and medical emergencies do not discriminate based on age.
The content of this article are not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional. Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate, business and commercial transactions, and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or firstname.lastname@example.org