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Guardianship in question in British Columbia

When you focus on the legal aspects that surround litigation that must be filed to get a power of attorney in place, your mind may go straight to what will happen if and when it is challenged.

When this power of attorney or the ability of a person to make sound decisions is challenged, the court will have to appoint someone to take care of the incapacitated person's property, assets and even business dealings. An application for guardianship is the method used most often to handle the power of attorney. This guardianship is put in place by the court system in British Columbia.

Appointing a guardian is a very sweeping decision and can have some rather dramatic results for the person who is incapable of making good choices. All decision making is now in the hands of another person. It can be very emotional for everyone.

The alleged incapacity of the individual whose freedom is being threatened will most likely cause this person to be upset and they will do their best to prove they are able and capable of making good sound decisions. There may also be tension within the family that is involved because more than one person may think they have the right to make decisions for the incapacitated individual.

The Substitute Decisions Act, or SDA, outlines the steps that must be taken to get guardianship when the court is making the decision of who will be appointed and what that will include; guardianship of property, person or both.

The SDA is a guide to providing specific parameters when it comes to making a decision of this magnitude. It can be a bit confusing, which is why you may want to have a legal representative present early on. They will know the different laws that govern this type of situation and will be able to offer their knowledge and experience.

Being aware that you can go to the court and get guardianship and the overriding steps that need to be taken is a good first step with which to start.

Source: Huffington Post Canada, "Plan Ahead: When a Power of Attorney Is Challenged," Suzana Popovic-Montag and Ian M. Hull, May. 09, 2015

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