|
Wills and Estate Planning
When You Can't Manage Your Affairs - Who Will?
The purpose of this booklet is to answer some of the questions commonly asked about the legal consequences of mental incompetency. The information in this booklet may be particularly useful to elderly persons, people with mental disabilities and caregivers. The booklet does not deal with mental disorders or adult protection. The booklet does not contain a complete statement of the law in this area and laws do change. Anyone needing specific legal advice should contact a lawyer.
TABLE OF CONTENTS
Introduction
Family, Friends and Community
Planning Ahead
Mental Competency Assessment
Adult Guardianship
A. INTRODUCTION
Mental competence is the key to rational decision making. Unfortunately, disease or injury can affect the mind making it hard for a person of any age to make sound decisions. Sometimes it may be impossible for the person to look after them selves or their affairs.
This booklet will tell you about some of the legal consequences of mental incompetence and encourage you to plan ahead for your financial and personal well being. It does not deal with mental disorders or adult protection.
Why is mental competence important?
Mental incompetence is the basis for many activities of life. For example a person must be mentally competent to:
enter contracts.
consent to medical treatment.
make a will.
drive a vehicle.
get married.
give a power of attorney.
assume every adult is mentally competent until a court decides otherwise. This recognizes people's capacity to understand the nature and consequences of their actions and their fundamental right to make decisions about themselves and their affairs.
What exactly is mental incompetency?
In legal terms, the Infirm Persons Act defines a mentally incompetent person as someone whose mind is affected either from birth or by disease, injury or disorder to such a degree that they require care, supervision, and control for their own protection or the protection of others.
Sometimes it is necessary for a court to declare a person mentally incompetent or infirm and appoint another person to make decisions on his or her behalf. This is often referred to as adult guardianship.
Who should be concerned about mental incompetency?
Everyone should think about what might happen if they lose their ability to make decisions and rcontrol their lives. The elderly and their caregivers may have particular concerns. So too might persons who are concerned about the future of someone they look after such as a dependent adult child with a mental disability or an infirm relative. Concerns may arise due to
an illness such as a stroke.
Alzheimer's disease.
an accident.
advanced age.
What should people know if they have concerns about their future care and well being? Whether you are a caregiver who looks after somebody else or you are personally concerned about becoming mentally incompetent or incapacitated, you should consider the following:
The role that family, friends and community can play in providing support to people who need help managing their affairs.
How to plan ahead for your personal and financial well-being.
The process of adult guardianship which might be necessary when somebody has not planned ahead.
The remainder of this booklet will discuss these three topics.
B. FAMILY, FRIENDS AND COMMUNITY
Many elderly and mentally disabled persons live and function with a network of support for their care and financial well-being. This support is often "informal" because it does not require "legal" solutions. It may simply involve living with caregivers, such as friends or family. The person needing care may allow the caregivers to assist with or make many decisions on his or her behalf.
Such an arrangement may be successful for several years. If people who are elderly or mentally disabled receive the care they need, there may be no reason to change the situation.
Those who need support in their daily lives may also take advantage of private and government services and programs available to help elderly and mentally disabled persons. These include
adult day centres attendant care.
meals on wheels.
in home services.
extra-mural Program.
Nursing homes or special care homes.
housekeeper services.
Can these solutions last forever? They may. However, at some point these solutions may start to break down. This may happen when
a caregiver dies.
a caregiver is no longer able to make decisions for an elderly or mentally disabled person.
a caregiver does not have the financial means to care for an elderly or mentally disabled person.
a caregiver becomes physically or mentally unable to care for an elderly or mentally disabled person.
an elderly or mentally disabled person inherits money or property.
an elderly or mentally disabled person becomes too difficult for caregivers to handle.
an elderly or mentally disabled person is in need of constant supervision.
Before the informal network of support starts to break down, consider ways to plan ahead.
C. PLANNING AHEAD
Declaring a person mentally incompetent should always be the last resort. There are mechanisms which competent adults can use to planfor their future care or for the care of a dependant with a disability. These include living wills, powers of attorney, trust funds, joint bank accounts and so on. When possible, it is a good idea to explore all your options.
What are the advantages of planning ahead? When someone challenges another person's competency, they may also challenge their independence and dignity. The ability to make decisions closely relates to how people think and feel about themselves.
The legal process is often emotionally difficult and expensive. It can also cause sonfusion, embarrassment and negative stereotypes for the person being assessed. Planning ahead can help avoid unnecessary hardships. Advantages of planning ahead also include:
choosing a decision-maker who is trusted.
designing documents to meet specific needs.
avoiding the cost of going to court.
saving a person's family from undue emotional hardship.
knowing that you or a person in your care will continue to receive the proper care.
Can I plan ahead for my health care? People who wish to play an active role in deciding about their health care treatment, even when they can no longer express their wishes, can make a living will. A living will is a formal document in which people give instructions about their health care treatment. For example someone with a terminal illness who anticipates becoming mentally incompetent or unable to communicate may put his or her wishes in writing in advance. People also refer to living wills as personal healthcare directives or advance directives.
New Brunswick law does not recognize a living will. However making one improves the likelihood that your family knows and accepts your wishes. Doctors have an obligation to follow a competent patient's wishes if they are known. You should review your living will periodically and amend it, if necessary.
Talk to your lawyer, doctor and family about how best to ensure that your wishes for health treatment are followed.
How can people plan ahead for financial matters? Consider the following five ways to plan ahead:
- Enduring powers of attorney - A power of attorney is a written document in which a person can direct and empower a trusted individual to make financial decisions on his or her behalf. Any mentally competent person who is at least nineteen years old can create a power of attorney. A person can give someone full authority or restricted authority. For example, a trusted relative may have access to a bank account, but not the power to sell property.When using this as a tool for planning ahead, it's important to include a clause that allows the power of attorney to continue in the event of mental incompetence. Without an enduring clause, the power will become null and void if the person giving the power becomes incompetent. Enduring powers of attorney give people the comfort of knowing their financial affairs will be handled by someone they trust if anything happens to them.
- Shared ownership - People can share ownership in bank accounts, stocks, bonds, real estate and motor vehicles. This allows another person to use these items for them. For example a joint bank account is an account owned by more than one person.An elderly person may set up a joint bank account with a trusted family member who can use the money in the account to pay for the person's expenses if he or she becomes ill, infirm or mentally incompetent. Before you set up joint ownership, talk to your lawyer about how it might affect your will.
- Trusts - A trust is a legal arrangement in which one person gives money or property to another person to hold for someone else known as a beneficiary. People can even create trusts where they name themself as the beneficiary. By doing this a person can use a trust to plan for the possibility of becoming incompetent. A competent person can set up a trust and choose someone to oversee it. The person overseeing it would be able to make financial decisions about the property even when the other person becomes mentally incompetent. For example an elderly person may create a trust and give a relative or friend the power to make decisions about his or her finances when the elderly person is no longer able to do so.
- Life tenancies - A life tenancy is an interest in real estate that lasts for a person's life. People can create life tenancies with anyone they trust. People can transfer (give or sell) their property on the condition that they be allowed to live there as long as they want. In a life tenancy a person can specify who has to take care of the property and pay the bills. This is helpful for anyone with concerns about mental incompetency. For example, an elderly person who wants to live at home but cannot take care of it, may be able to set up a life tenancy. He or she can continue to live at home while the person given the house could be responsible for its maintenance. A lawyer can tell people more about this.
- Wills - A will is a legal document which names the people or organizations a person wishes to give property to after he or she dies. To create a will a person must be mentally competent and at least nineteen. It is too late to make one after you become mentally incompetent. If you are concerned about incompetency and would like to make a will, see a lawyer as soon as possible. Tell your lawyer about your concerns. The lawyer may be able to show that you are competent enough to make a will.
- By making a will, people can ensure that their dependants (ex. adult children with mental disabilities) are taken care of financially. If a person dies without a will in New Brunswick the Devolution of Estates Act says how the estate is to be distributed. The Act tries to distribute property as most people would choose to do but this may not be as the person would have wished.
D. MENTAL COMPETENCY ASSESSMENT
Over time, many people experience changes in their mental capacity. These changes may be temporary or permanent. For example the results of a stroke may last for a few months, while the results of dementia, such as Alzheimer's disease, are permanent. Before the courts get involved, most people will undergo a mental competency assessment to determine their ability to make decisions.
What is a mental competency assessment?
The purpose of the assessment is to find out if the person being assessed has the specific abilities needed to make decisions about his or her well-being. The assessment tries to determine which abilities a person still has, and which abilities a person may have lost. The assessment should be thorough and fair. The kinds of health care and services provided to the person may depend on the outcome of the assessment.
A finding of mental incompetency could mean that somebody will have to get legal authority to make decisions for the person. When this happens, the assessment may be presented as evidence in court for a guardianship order. The court would use this information to help it decide what kinds of decisions the guardian can or cannot make on behalf of the other person.
Who conducts a mental competency assessment?
An experienced health care professional conducts the assessment. Normally a friend or relative with concerns about another person's well-being asks a health care professional to do an assessment. It usually takes place in a person's home and often there is more than one assessment.
Can a person refuse to have an assessment?
Yes. However if a person refuses an assessment, a family member or caregiver can ask a court to order a competency assessment. It is better to come to an agreement, if possible.
How is mental competency assessed?
Mental competency is assessed through a series of questions that try to determine if a person is capable of making decisions. The questions may vary and health care professionals may have different methods of assessment. Generally an assessment examines a person's
thought
awareness
perceptions
judgement
mood
memory
When is a mental competency assessment necessary? An assessment may be necessary when, for example
a person is not receiving the care he or she needs.
a person is no longer capable ofcaring for his or her affairs.
a person needs to show legal competence to do something, such as make a will.
a person refuses to accept help and there is a possibility of harm.
a person's safety is at risk and he or she is unable to fix the situation.
a person is declared mentally incompetent and wishes to appeal the finding.
When is a mental competency assessment not necessary?An assessment may not be necessary when, for example
a person's behaviour has always been eccentric or unusual.
a person is occasionally forgetfull.
a person's behaviour is not harmful to themselves or others.
a person has an illness or disability. People with similar medical problems often have different abilities.
Should a person be told an assessment is going to happen? It's a good idea to tell the person being assessed about the assessment ahead of time. Surprise assessments tend to confuse people and make them distrust their friends and family. Surprise assessments may also be more difficult and the person being assessed may be unable to give his or her best effort.
However notification may be impossible if the person being assessed lacks the mental capacity to understand it.
E. ADULT GUARDIANSHIP
Some people are unable to plan ahead; others choose not to. In certain circumstances, it may be necessary for a relative or friend to ask a court to appoint them as a person's guardian. In New Brunswick this process is governed by the Infirm Persons Act.
How does somebody become the guardian of a mentally incompetent adult? The first step is to file a Notice of Application with the court. Sworn statements in writing from at least one medical practitioner and from someone who knows the person must accompany the notice. The medical practitioner must give reasons why he or she believes the person is mentally incompetent.
Normally the person named in the notice must receive a copy of the application. If the court believes that the person lacks the mental capacity to understand it, or that it would aggravate his or her condition, it may waive this requirement. The person named in the notice may wish to contact a lawyer or advocacy group for more information.
Who can apply to become the guardian? Under the law a spouse, a relative or in-law can apply to become the guardian of a mentally incompetent person. If there is no relative, a friend or even a creditor can apply.
How does the court decide if someone is mentally incompetent? The court decides by looking at the evidence. To make a decision at the first hearing, it must show that a person is mentally incompetent beyond a reasonable doubt. This is a high standard of proof. If the evidence is sufficient, the court will declare the person mentally incompetent. However if the evidence does not show this, the court may set a time and place for another hearing.
If necessary the court will ask for more medical information. The court may order the person to take a medical examination. Generally the court will only order an examination if there already is some medical proof of the person's mental incompetence. A person has the right to appeal any decision the court makes.
What happens if the court finds a person to be mentally incompetent? If the court finds a person mentally incompetent, it will appoint a guardian.
What decisions can the guardian make? Depending on the circumstances, the court will authorize the guardian to make decisions that the person cannot make. Since a person can be mentally incompetent in one way and not in another, the law provides for guardianship of either the person or the estate (ie. property and finances) and if necessary, both. The court refers to the guardian as a Committee of the Person and/or Estate.
A guardian who becomes Committee of the Estate may make decisions about the person's money and property to pay off debts, pay for the person's care or support the person's dependants. The guardian must not use the money for any personal gain. Depending on the degree of the person's incompetence, the court may decide it is also in the person's best interest to allow the guardian to make decisions about health care including consent to medical treatment.
Who will the court appoint as a guardian? The person who applies to the court often asks to be the guardian. If this does not happen, the court usually gives preference to family members. However the court always looks at what is in a person's best interest. For example, if a person's spouse cannot handle the financial affairs, then the court may appoint somebody who can.
What if the mental incompetence is only temporary? Sometimes a guardian only needs to make decisions for a mentally incompetent person for a short period of time. If the condition is only temporary, such as a stroke, then when circumstances change, the person or a representative can ask the court to set aside the guardianship order. This request can be made any time after one year, or sooner if the court believes it is necessary. If a person proves that he or she is now mentally competent and capable of managing his or her own affairs, the court will declare the person mentally competent.
What about a mentally competent person who needs help managing his or her financial affairs? The Infirm Persons Act permits the guardianship of a mentally competent person but only for financial matters. The court has the authority to appoint a Committee of the Estate to handle the finances of an individual who is incapacitated or infirm due to:
disease
advanced
age
drug use
habitual drunkeness
However, the guardian cannot make decisions about the person's health care. It is important to remember that people with physical limitations still have the ability to make their own health care decisions. For example, when a disease or disability such as Lou Gehrig Disease affects a person's ability to communicate his or her wishes, every effort should be made to learn and respect those wishes.
Where can people get more information and advice about these matters?
For more information, advice, support or advocacy check your phone book for the following:
The Department of Health and Community Services (under Family and Community Social Services or Mental Health Services)
Extra-Mural Program
Premier's Council on the Status of Disabled Persons
The New Brunswick Senior Citizens' Federation
Associations such as the Alzheimer Society,
Canadian Rehabilitation Council for Disabled,
Canadian Mental Health Association, etc.
The Third Age Centre / l'Université Troisième Âge
New Brunswick Association for Community Living
Doctor or Mental Health Clinic
Lawyer or legal advice clinic
Public Legal Education and Information Service
PLEIS-NB is a non-profit organization which provides information about the law to New Brunswickers. It receives funding and in-kind support from the Department of Justice Canada, the New Brunswick Law Foundation and the New Brunswick Department of Justice. We acknowledge the contribution of: the Third Age Centre, the Premier's Council on the Status of Disabled Persons, members of the Law Society of New Brunswick, the Department of Family and Community Services, the Canadian Rehabilitation Council for the Disabled, the Alzheimer Society of NB, the NB Association for Community Living and Region 3 Hospital Corporation.
Published by:
P.O. Box 6000
Fredericton, N.B.E3B 5H1
CANADA
Tel: (506) 453-5369
Fax: (506) 462-5193
Email: pleisnb@web.ca
March 2001
 Back to Managing Your Financial and Personal Affairs
Disclaimer: Please note that our website contains general information about the law. This is not a complete statement of the law on particular topics. We try to update our publications often, but laws change frequently so it is important for you to check to make sure the information is up to date. The information in our publications is not a substitute for legal advice. To receive legal advice about your specific situation, you need to speak to a lawyer.
|
