In the landscape of estate planning here in Trinidad and Tobago, it can be tricky if the tools of the law are not properly understood.
There is a common misconception here in T&T that many people believe that having a Will and a Power of Attorney (POA) covers all possible bases.
However, under the laws of Trinidad and Tobago, specifically the Mental Health Act, Chap. 28:02 there is a critical, often overlooked window of time that neither of these documents can address, the “gap”!
This “gap” occurs when an individual is still alive but has lost the mental capacity to manage their own affairs. To protect the person and their assets during this period, a Mental Health Committeeship becomes a legal necessity.
To understand where a Committeeship fits, it is helpful to view the management of a person’s affairs as a chronological progression:
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Power of Attorney (Capacity)
A person (the Donor) grants authority to someone else (the Attorney) to act on their behalf. This is only valid while the Donor has the mental facility to understand what they are doing. Learn more about power of attorney (POA)
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Committeeship (The Gap)
This is the legal bridge. When a person loses their mental capacity, the Power of Attorney becomes legally void. A “Committee” must then be appointed by the Court to manage the person’s life and finances.
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The Will (Death)
A Will only “speaks” from the moment of death. It has no legal power to manage the assets of a person who is living but incapacitated.
A common and dangerous misconception in Trinidad and Tobago is that a Power of Attorney remains valid until the person dies. Legally, this is incorrect.
It is important to understand that a Power of Attorney is an agency relationship. For an agent to act, the principal must have the capacity to provide instructions. The moment a person lacks the “mental facility” to manage their affairs, the Power of Attorney is automatically revoked by operation of law.
If a family member continues to use the said Power to withdraw funds or sell property after their loved one has lost their faculties (due to dementia, Alzheimer’s, or a stroke), those actions may be deemed unauthorized or fraudulent.
Find out when a Powers of Attorney in Trinidad & Tobago can and cannot be used.
Ignoring the need for a Committeeship can lead to “legal paralysis.” Banks may freeze accounts once they become aware of a person’s incapacity, and the Land Registry will not recognize the signature of someone who lacks the capacity to contract.
Without a Committee, families often find themselves unable to pay for the medical care or nursing home fees of their loved one, despite the loved one having the assets to cover these costs.
“Bridging the gap” is about ensuring dignity and continuity.
A Will looks after your legacy, and a Power of Attorney handles your convenience, but a Mental Health Committeeship looks after you when you can no longer look after yourself.
If a loved one has begun to lose their mental faculties, it is imperative to consult with an Attorney-at-Law to begin the Committeeship process before a crisis occurs.
This article is provided for general information only and does not constitute legal advice.
