It is important to determine whether the potential testator has the necessary capacity to manage his/her own financial and personal-care affairs.
Committeeship arises where a potential testator cannot reasonably demonstrate capacity when signing a Power of Attorney or a Representation Agreement. In such a case, a near relative of such an individual or another person may apply to court for an order that declares that person as mentally infirm due to disease, age or other reasons and thus being incapable of managing his/her affairs (s. 2 of the Patients Property Act). Subsequently, authority of a committee does not end upon a patient’s death (s. 24) and the committee continues to have the rights, powers, duties and privileges as if the patient had not died until letters probate of the Will have been granted and notice of the grant has been served on the committee.
When applying for an order which designates an individual as a committee, the following steps must be followed:
- Two medical opinions must be obtained (one will usually be from a treating physician), which set out in affidavit format the diagnosis of the condition, commentary on personal care, and an opinion that by reason of mental infirmity, the individual is incapable of managing his/her own affairs;
- An affidavit of kindred and fortune, which sets out personal information of the individual over whom the Committeeship is being sought, provides a statement of assets, and offers consent from the nearest relatives;
- Service of application on ‘patient’ (unless this would cause harm);
- Service on persons with existing powers of attorney or other interested parties;
- Submission of the application to the PGT for review (including the draft order); and
- Commencement of the application in Court by way of Petition.
Once the order has been granted, the PGT will assign a case worker who will require the committee’s regular accounting of records.
In summary, it is important to determine whether the potential testator has the necessary capacity to manage his/her own financial and personal-care affairs.
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