Mental incapacity can result from injury or illness that reduces one’s capacity to deal with financial and other affairs. If someone loses capacity to the point where they are no longer capable of managing their affairs, they may be declared incapable by 2 physicians. If that occurs, there is a legal process where a qualified person can apply to be the “committee” of their affairs, which means that they have the power to handle that person’s affairs in that person’s best interest. Often the Public Guardian and Trustee acts as committee for persons.
We regularly assist families in making committeeship applications to secure their appointment as committee of their family member’s financial affairs.
Most often those that are appointed as committee or act under powers of attorney or representation agreements perform their obligations in the best interests of the incapable party. Disputes can arise where:
- one person applies to be committee of a family member’s financial affairs and others in the family don’t think that person is the best qualified or will not act in the best interest of the incapable person and are opposed to that person being appointed (disputed committeeship applications).
- a person appointed as a committee or acting under a power of attorney or representation agreement abuses their powers to benefit themselves to the financial detriment of the person whose interest they are supposed to be representing.
- A person appointed as committee or acting under a power of attorney misappropriates the funds of the person they were appointed to protect there is a need to recover the misappropriated funds.
- the person who has been declared incapable disputes that and says that they are capable of managing the financial affairs and do not require a committee.
- A person who is incapable of managing their financial affairs but has not been formally declared incapable either purchases something or is sold something entirely contrary to their interests or financial means and it is necessary to set aside the transaction.
McLarty Wolf has experience in handling these types of disputes. Regrettably these disputes involve disagreements among family members or situations where a person who is becoming incapable has been the victim of financial abuse. If such a dispute arises and affects a family member or friend you are welcome to contact Ross and Murray to discuss the matter.