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How to Plan Ahead for Yourself and Your Family

As we progress through life, it’s important to not only have a will prepared, but also identify who will be responsible for making decisions and looking after you in the event that you are unable to. Planning ahead will ensure that everything is handled the way you foresee it to be, with hopefully, minimal issues arising.

The first step is to create a Power of Attorney. This document will clearly appoint another individual who will be responsible for making decisions if the original person is no longer of sound mind, and unable to make decisions for themselves.

In the event that someone is no longer mentally competent, and has not prepared a Power of Attorney, the family or friends will need to make a Guardianship Application. This is necessary because without a Power of Attorney or Guardianship appointment, loved ones are unable to access bank accounts, sell real estate, or make many other financial or personal care decisions.

What is Guardianship?

Guardianship is a legal application that allows a friend or family member to be an appointed decision maker for an adult who is mentally incompetent and unable to make significant health, personal care, and financial decisions for themselves. There are two types of Guardianship appointments:

• Guardian of the Estate – this enables the Guardian to make decisions regarding the person’s property, which can include managing investments, selling real property, and handling day-to-day banking and paying bills.

• Guardian of the Person – this enables the Guardian to make personal care decisions, including living arrangements and sometimes medical treatment.

Typically one person would be both the Guardian of the Estate and Guardian of the Person. The Guardian must be at least 19 years old and mentally competent. A Guardian can only be appointed by a Supreme Court of Nova Scotia judge. Prior to making the appointment, the judge will hold a hearing to determine that the person is mentally incompetent and unable to manage their own affairs. The judge will make the appointment based on the best interests of the incompetent person. If multiple people apply to be the Guardian, or if people oppose an application for Guardian, the Court will take a close look at who is in the best position to look after the incompetent person.

What does it mean to be “incompetent” in legal terms?

When referring to an “incompetent person” it simply means someone who is unable to manage their own affairs and make significant decisions. This could be caused by a coma, Alzheimer’s, or a mental disability stemming from an accident.

What are the Guardian’s responsibilities?

According to the Incompetent Persons Act, the Guardian is required to file an inventory of all of the property of the incompetent person, pay any debts, account for the inventory, collect money owed to the incompetent person, manage their estate, and use their money to provide adequate care for the incompetent person.

Ultimately, as mentioned earlier, the Guardian must act in the best interests of the incompetent person at all times. The Guardian must file a Bond with the Court, which is a payment into the Court. This payment helps ensure the Guardian will fulfill their obligations. The Bond works like insurance, and if the Guardian fails to fulfill his or her duties, a claim can be made against the Bond.

A judge can terminate a Guardianship appointment if the Guardian is not fulfilling their duties, resigns, dies, or moves out of the province. The Guardian will also be removed if the incompetent person regains competency, and is able to make significant decisions for themselves.

Ultimately Guardianship is a great way to look after the best interests of an incompetent loved one. A lot of responsibility is bestowed on the Guardian, so this is often used as a last resort if the incompetent person did not prepare a Power of Attorney.

Ensuring that you have a Power of Attorney in place will aid in facilitating your best wishes in the event that you are no longer able to – helping your loved ones care for you in an effective and efficient way.

Amy L. Thomas is a lawyer at English Law in Enfield. This article is not legal advice.

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Amy Thomas
A lawyer with English Law in Enfield, Thomas provides insight and tips on many aspects of the legal world. Topics range from estate planning to real estate help.