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Estate Litigation, Radio/Media

Incapacity planning for a loved one

August 26, 2021 by Kevin Cheung

Our Estate Litigation team of lawyers appreciates that this can be very difficult for those individuals involved. We understand the sensitivity of these issues and have the expertise to mitigate and resolve conflicts through Mediation, Litigation or Arbitration. These are often complex, emotional situations, and we pride ourselves on balancing our clients’ legal and personal goals in seeking resolution.

When creating an estate plan, Associate Kevin Cheung will discuss options if you or your loved one is incapable of making sound decisions, especially when it comes to finances. He explains this in this video.


A question that we often get is how do we plan for incapacity? Generally speaking, the two ways to plan for incapacity is to have the power of attorney and a representation agreement.

A power of attorney appoints somebody to deal with your financial matters when you are incapable of making financial decisions, or decisions of their assets, on your own. Generally, people usually appoint an immediate family member, but it could be anyone from a close friend or relative to a trust company. This person or entity would deal with banking, paying your bills and expenses, dealing with your taxes, keeping your money safe and investing your money is appropriate. Usually, these power of attorney documents are fairly straightforward, and it's generally a painless procedure.

The Representation Agreement is sometimes called a living will or power of attorney for personal care, but in BC, we call it a Representation Agreement. This is the document that appoints somebody to have the legal authority to make healthcare and end-of-life care decisions on your behalf when you're incapable of doing. So again, usually, it's a close family member or even a close friend that people will appoint. Usually, there are some really difficult questions about your wishes for end-of-life care, such as under what circumstances should you be kept alive. It's important to have conversations with your loved ones and whoever you appoint about your wishes. The documents, the will, the power of attorney, and a representation agreement are relatively inexpensive compared to the cost of litigation and litigation over a will or over who gets to take care of you when you are incapable can be very expensive. The risk of litigation can be minimized with proper and thorough planning. If you don't have a document like a power of attorney or a representation agreement, the public guardian and trustee can take control over your assets and yourself and make decisions for you. At FH&P Lawyers, we have a number of lawyers here who can assist you in your estate planning or planning for incapacity. We certainly do have the lawyers who can take on the litigation needs related to these areas if you needed.