Mentally Incompetent Adults
Previous Power of Attorney Process
If a client provided a Power of Attorney to someone before The Public Guardian and Trustee was appointed to manage the case, the Power of Attorney is suspended until the office investigates the circumstances of the Power of Attorney. This investigation is required under Section 67 of The Mental Health Act
The purpose of the investigation is to determine the following:
- whether the Power of Attorney is valid
- whether it was granted while the client was still competent
- whether the person named as Power of Attorney wishes to act
- whether this serves the best interests of the client
At the end of the investigation, The Public Guardian and Trustee either re-instates the Power of Attorney or continues to manage the client's affairs.
Frequently Asked Questions:
What happens during the investigation?
- The attorney named to act on the client's behalf is notified that his or her Power of Attorney rights are suspended.
- The Public Guardian and Trustee will ask the named attorney if he or she wishes to continue acting on the client's behalf. The wishes of both the client and the client's nearest relative or involved family member will also be considered where possible.
- The Public Guardian and Trustee will ask the attorney to provide a complete financial accounting within a specified time. The accounting must detail the transactions carried out by the attorney on behalf of the client and be supported by appropriate documents such as bank statements and receipts.
- The Public Guardian and Trustee may make independent inquiries about the client's financial history and affairs.
What happens after the investigation?
If The Public Guardian and Trustee finds that the client's interests will be better served by allowing the Power of Attorney to continue, The Public Guardian and Trustee will notify the attorney, advising him or her to continue acting. The Public Guardian and Trustee will notify the director of Psychiatric Services to cancel the Order of Committeeship and The Public Guardian and Trustee will close the client's file.
If The Public Guardian and Trustee finds that the client's interests will be better served by The Public Guardian and Trustee continuing as Committee, the Power of Attorney will be terminated. The attorney and other interested parties, including the client and client's nearest relative, are notified in writing. The letter includes reasons for termination of the Power of Attorney.
The letter also includes a form that the attorney may fill out and return if he or she objects to the proposed termination. If this happens, The Public Guardian and Trustee will request the direction of the Court to make the final decision. The attorney will be given notice of the hearing and will have the opportunity to file evidence.
When The Public Guardian and Trustee proceeds with the Court application and is unsuccessful in having the Power of Attorney cancelled, The Public Guardian and Trustee will pay all legal costs incurred by The Public Guardian and Trustee on behalf of the client, in addition to any costs ordered by the Court to be paid by The Public Guardian and Trustee.
This will ensure that in all situations where there is objection to the cancellation of a pre-existing Power of Attorney, the matter will be determined by a Justice of the Court of Queen's Bench.
If the attorney's accounting is satisfactory, will The Public Guardian and Trustee reinstate the Power of Attorney every time?
Not always. Although the attorney could manage the financial affairs of the client, the client may also need the services of a personal decision maker. As Committee, The Public Guardian and Trustee is always responsible for the management of both property and personal care of the client, and cannot be appointed only to manage the client's personal affairs. In these cases, The Public Guardian and Trustee may continue to act as Committee and terminate the Power of Attorney.
A Power of Attorney allows for the management of the client's property, not the client's personal affairs. When decisions such as placement in a personal care home or medical treatment must be made, The Public Guardian and Trustee may be the only appropriate party to act.
