When will the court set aside a Representation Agreement and appoint a Committee?

  • When it is in the best interests of the patient to do so

In Dawes v. Dawes the family consisted of a mother, father and three kids.  The mother made a Representation Agreement appointing her daughter Janet as representative.  The mother’s mental health declined to the point where the father could no longer care for her at home.  The doctors, the mother and the rest of the family agreed that the mother should go to a care facility.  Janet opposed this, saying that the father should continue to care for the mother at home. 

The father applied to become Committee.  Janet opposed this, saying that she should wield the power under the Agreement.  If Janet continued to have power under the Agreement she intended to sever the joint tenancy in the family home to protect herself in case she incurred any costs in supporting her mother.  The father said that this was not necessary, and was not consistent with the estate planning he and his wife had done.  Such a step would separate their assets as if a legal separation had occurred, when none has and where neither spouse intended such a step.

The court said that it was not appropriate to let the Representation Agreement continue.  While the mother had chose Janet as her representative, Janet’s proposed steps regarding the family home were not consistent with the mother’s intentions before she became incapable, nor were they necessary as the father was contributing financial support to the mother.

The Judge decided not to appoint the father as the sole Committee, due to his age and poor health.  Janet was rejected as Committee because of the high level of acrimony and conflict in the family and Janet’s rejection of any opinion inconsistent with her own.  The father and another daughter were appointed as co-Committees. 

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Read the case:  Dawes v. Dawes