People often ask the question: “Do I need to get a power of attorney or a committeeship for my loved one?” While the two documents, and powers that they grant, look similar, there are many important differences, and often the situation that you are in will be what determines which one is needed.
A Power of Attorney is a document signed by a person that gives authority to another person to manage some or all of that person’s affairs (although it is important to note that it does not remove the ability of the person signing it to manage their own affairs – it just appoints a “helper”). They are often, but not always, used to guard against later-in-life inability to manage one’s affairs whether due to dementia, physical incapability, or simply because it’s easier to have a loved one take care of day-to-day tasks. They need to be made while a person is still competent to make decisions, and are typically drawn up by a lawyer because, unlike a will, powers of attorney can only be witnessed by people in certain professions, with “lawyer” being the most common one. They are often made at the same time as a Will, but unlike a Will, a power of attorney is only valid while the person who made it is still alive, where a Will is only in effect after a person dies.
A Committeeship has some similarities and some differences. Like a power of attorney, a committeeship gives another person the ability to manage some of a person’s affairs while that person is still alive. The main difference is that a committeeship is a judge-made court order and they are only issued after someone has lost the ability to manage their own affairs. Because of this, they require sworn affidavits from physicians that the person can’t manage their own affairs, as well as a court appearance before a judge (although typically there is no need for witnesses to be called). This makes committeeships significantly more expensive to obtain than making a power of attorney in the first place – often thousands of dollars – although if the person no longer has the mental capacity to make a power of attorney then it may be the only option for a family member to take control of the affairs of someone.
There are some other differences as well: Most often, when we draft a power of attorney, we give as many powers as possible to the person who will be taking on the powers. With a committeeship the powers that are granted are more limited, and sometimes additional orders are required. For example, most powers of attorney are drafted with the option to allow the family member to sell the house if the person can’t live in it anymore. Under a committeeship, the house can only be sold after review of the sale by a judge, resulting in a delay on the sale and increased costs for seeking that review. A power of attorney can also name anyone (over 18, mentally competent themselves, and no an undischarged bankrupt) whereas a committeeship can only be granted to a person who is a Manitoba resident.
In the end, it is often far easier on everyone involved to have a power of attorney in place before it is needed. With that said, if there isn’t one in place, it’s important to know that not all is lost and that a committeeship may be an option. Please feel free to talk to us if you have any questions, and let us know if there is any way that we can help with your committeeship or power of attorney questions.