Frequently Asked Questions

 

Committeeships

Making decisions regarding the care of a parent, child or relative who is no longer capable of caring for themselves or managing their own affairs can be very difficult. We are here to help you and we invite you to call us or request a free consultation. In the meantime, here are the answers to some frequently asked questions.

1. What is a Committee?

A Committee is a person appointed by the Court to look after the affairs of a mentally incompetent person.  The application is made under the Patients Property Act.  The mentally incompetent person is referred to as the “patient” even though they may be living independently.

2. What kind of decisions can a Committee make?

They could be just financial decisions, or decisions about every aspect of the person’s life including where they live and what medical treatment they receive.

3. Who can be appointed as a Committee?

Usually family members are appointed, but close friends can be appointed as well. In some cases the Public Guardian and Trustee is appointed.

4. Can the patient nominate a person to be the Committee?

Yes, if the patient is able to express his or her wishes. However, the court may still appoint somebody else, if it would be in the patient’s best interests.

5. How do I nominate a person to be my Committee?

The nomination must be in writing, and must be signed and witnessed in the same way a will is signed and witnessed. We can help you do this correctly.

6. Can a Committee be replaced if they are doing a bad job?

Yes. A Committee can be replaced if they are not acting in the best interests of the patient.

7. Must there be a bond if a Committee is appointed?

In most cases, the Court will require that a bond be posted. The cost of the bond is paid by the patient’s estate. We can arrange the bond for you.

8. Must the application to appoint a Committee be served on the patient?

Yes, except in those cases where service would harm the patient’s health.

9. What medical evidence is required on an application to appoint a Committee?

The opinion of two medical doctors that the patient is incompetent is required. We can assist in obtaining the medical evidence for you.

10. What other evidence is required on an application to appoint a Committee?

An Affidavit of Kindred and Fortune must be filed, setting out the relationship of the applicant to the patient, a description of the patient’s assets and a general plan for the patient’s care and assets.

11. Who pays for the court application?

Generally the patient pays the costs of the court application.

12. If a Committee is appointed, are powers of attorney or representation agreements still valid?

No.

13. Is a Committee required to account for their handling of the patient’s assets?

Yes, a Committee is usually required to pass his or her accounts annually but may be required to do so whenever requested by the Public Guardian and Trustee.

14. Is there a way that I can plan ahead to avoid somebody being appointed as my Committee if I become mentally incapable?

Yes. You can grant an Enduring Power of Attorney to somebody you trust to handle your financial affairs. You can make a Representation Agreement giving somebody you trust the power to handle your personal affairs. We can help you with both of these legal documents.

Personal Injury Claims

1. What should I do at the scene?

Get the information you will need:

  • The other vehicle’s licence plate number
  • The other driver’s name, address and driver’s licence number – from the Driver’s Licence
  • The names and contact information of any witnesses.
  • Where and when the collision took place. 
  • Take a photograph of the vehicle damage, resting place of the vehicles, and anything else in the area that could resolve the question of liability if it becomes disputed.
  • HINT:  take a photograph of the licence plate, Driver’s Licence and insurance papers.

2. What should I do if it was a hit and run collision, or the other driver refused to give me his/her information, or I did not write down the information I needed?

You must make all reasonable efforts to determine the identity of the other driver and vehicle owner.  Get as much of the above information as you can at the scene.  Report the collision to the police.  Give written notice of the collision to ICBC immediately.  Post signs at the scene of the collision asking for witnesses.  Take a photograph of the sign, with a date-stamping camera.  Place an advertisement in the local paper, and keep a copy of the paper.  Go back to the scene of the collision at the same time of day for several days, and look for the same vehicle.  Make a note of these efforts.  Seek legal advice immediately – we can help you.

3. What should I do if a municipality was at fault for the collision?

Give written notice of the event to the municipality within 2 months of the collision.

4. What should I do if I did not give notice to the municipality within 2 months?

Seek legal advice.  In some cases this problem can be overcome.  We can help you find out if your case is one of these cases.

5. What should I do after the collision?

You must report the claim to ICBC, so call Dial-A-Claim.  You have to give ICBC the “available particulars” of the collision, any claim being made and any other insurance that may provide coverage.  Be accurate, and do not guess if you do not know the answer.  If you are ESL, get help.

6. Do I have to meet with an ICBC adjuster?

No.  They have a right to inspect your vehicle, but if you uncomfortable with the idea of meeting with an adjuster, seek legal advice to ensure you have done all you have to.  We can ensure that ICBC gets all the information they need, while still protecting your privacy and your rights.

7. I was injured and need treatment.  Will ICBC pay for my treatment?

Yes.  You need to do three things:

  1. promptly give ICBC  notice of the collision.
  2. give a written report of the accident with particulars of the circumstances in which the accident occurred and its consequences within 30 days of the date of the collision.
  3. make an application for these benefits within 90 days of the collision.

If ICBC refuses to pay for the recommended treatment, seek legal advice.  We can help you get the treatment you need to recover.

8. I have been unable to work.  Will ICBC replace my lost income?

Maybe.  You have to do the three things mentioned in the answer to Question 7 plus you have to apply for EI sickness benefits, and any short or long term disability benefits you have through another insurer.  If you have done so, and those benefits are under $300 per week, ICBC may be required to top up your income loss after a one week waiting period.  If ICBC refuses to pay, get legal advice – we can help you get the benefits you are entitled to.

9. I am a homemaker and do not work outside the home.  I cannot do this anymore.  Will ICBC pay for somebody to do my work?

Yes.  If you are disabled from performing most of your tasks, ICBC will reimburse you for reasonable expenses incurred by you to hire somebody to do them.  ICBC will not pay anything if your family members take over your tasks.

10. Is there a time limit for resolving my ICBC claim?

Yes.  If you have not settled your claim within two years from the date of the collision, you must start a legal action to preserve your right to compensation.  In rare cases this time limit can be extended, but you should seek legal advice immediately.  We can help you determine if you still have the right to pursue your claim.

11. My wife was injured in a collision.  She used to do all the inside housework and I did all the yard work.  Now, I have to do everything.  Can a claim be made for the extra work I now have to do?

Yes, awards are sometimes made “in trust” for family members who do work that is beyond a relatively minor adjustment of duties within a family unit. 

12. What is my injury worth?

There are many heads of damage that can be awarded for a personal injury claim.  There can be damages for past income loss, pain and suffering, future income loss, loss of housekeeping capacity, loss of handyman capacity, “in trust” claim for work done by relatives or friends, medical expenses, past and future and loss of income earning capacity.  Your lawyer will have to gather documents and review medical opinion reports to assess your damages.  This can be a lengthy process and can only be completed when you have fully recovered from your injuries or when your doctor can give his opinion as to when and to what extent you will recover in the future.

Wills Variation Actions

1. Is there a time limitation to apply to vary a Will?     

Yes, the application must be made within six months from the date of the grant of probate of the Will.  There may be exceptional circumstances where the limitation period does not apply. 

2. Who can apply to vary a Will?

The spouse or children of the deceased.  A spouse includes an unmarried person who has lived common law with the deceased for two years.  Children includes adopted children but not step children.

3. How does the Court determine how to vary a Will? 

The Judge will decide which claimants have legal claims and which have moral claims.  A surviving spouse or child under 19 has a legal claim on the estate.  These claims rank above a moral claim made by a self supporting adult child.

4. When can a parent disinherit children?

The Court will examine the parent’s reasons for not providing for a child.  If the reasons are valid and rational, then the Court may uphold the will.  “Valid” means true in fact.  For example, where a deceased says that he is disinheriting a child because the child has stolen from him, but the Court is satisfied that this is not true, the reasons would not be valid and the Court would provide for the child.  “Rational” means that there is a logical connection between the valid reasons and the act of disinheritance.  For example, a deceased can not cut a child out of his will because of the child’s sexual orientation.  Ultimately the court will decide whether the deceased acted as a judicious parent would in these circumstances.

5. What if the financial circumstances of a child change between the date of the Will and the date of the death of the parent?

The Court can look at the circumstances of the child at the date the will comes into effect (the date of the death of the parent).  If the child’s finances or health has changed dramatically since the will was written, the child may have a successful claim.

6. If the deceased held property in joint tenancy, will it go to the other joint tenant or will it be part of the estate?

Generally, the property passes to the surviving joint tenant.  However, there are situations where the Court finds that the property is being held in trust for the estate.  This could happen if the surviving joint tenant did not pay for his share of the property and if the deceased wanted the property held in trust for the estate.

7. Can a person contract out of the provisions of the Wills Variation Act?

No, an agreement not to apply to vary a will is likely not enforceable.  However, the agreement may persuade a Judge not to vary the will if the parties received independent legal advice and the agreement was fair.

8. What happens if a claimant under the Wills Variation Act dies before his claim is completed?

The personal representative of the claimant can continue the claim until its resolution.

9. Do these cases often involve long, expensive trials?

In recent years, there has been a trend to deal with these cases through mediations and summary trial procedures where the Court decides the matter after reviewing affidavits. 

10. Can I apply to vary the designation of a beneficiary under a life insurance policy, RRSP or a pension plan?

No, these assets do not pass into the estate if a beneficiary has been designated.

 

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