The perils of not planning for incapacity

Understanding what happens when someone becomes incapable of managing her financial affairs or personal care, without having appointed a substitute decision maker, may help motivate people to plan for potential future incapacity.

If your client fails to properly prepare for these outcomes, an application to court may be required to appoint someone to make these decisions for them. Having a will doesn’t help because an executor is only authorized to act after death.

The court process can be both costly and time-consuming. Depending on the circumstances, the Public Guardian and Trustee (or provincial equivalent) may be required to get involved. Clients also lose the opportunity to appoint people or companies of their choice and establish any parameters regarding the actions of their substitute decision makers.

This is why a secure estate plan should include powers of attorney (mandate for incapacity or protective mandate in Quebec) for both property and personal care. Most often the documents are prepared along with the will. But the documents can be prepared at any time, so long as the client has the requisite capacity (as defined by the applicable provincial legislation).

In British Columbia, representation agreements govern personal care and may also be used for the management of property. Depending on your client’s province of residence, you may also be able to prepare living wills and advance directives. Read more: Plan for clients’ incapacity >