In my previous blog post I discussed how planning for the future often involves drafting a Will and setting up a Power of Attorney (POA). However, a Will only takes effect after passing, and a standard Power of Attorney is generally revoked if the donor loses mental capacity.
Furthermore, it is important to note standard medical proxy clauses in a Power of Attorney are not legally applicable in our jurisdiction, which can leave families feeling helpless when severe mental incapacity occurs.
When a POA fails and the Will is not yet in effect, the Mental Health Act (Chapter 28:02) provides the definitive legal solution to bridge the “gap”. An application must be made to the High Court of Justice to have a trusted person (or persons) appointed as a Committee of the Estate.
What is a Committee of the Estate?
A Committee is an individual appointed by the Court to step into the shoes of the incapacitated individual (referred to legally as the “Patient”). Their role is to lawfully manage the patient’s property, financial affairs, and business interests when the patient is medically certified as unable to do so.
Read more on the vital role of Mental Health Committeeship in Estate Planning.
The process to set up Committee of the Estate
Filing the Application:
The process is initiated by filing the requisite documents through your attorney at the High Court. This is typically done by the patient’s next-of-kin.
Medical Evidence:
The court does not remove an individual’s autonomy lightly. The application must be firmly supported by affidavits and medical certificates from licensed medical practitioners. This evidence must unequivocally certify that the individual is incapable of managing their own affairs due to a mental disorder.
Estate Inventory:
The applicant is required to submit a detailed statement outlining the patient’s property, assets, and their estimated value, giving the Court a clear picture of the estate to be managed.
Unlike Powers of Attorney and Wills, which are relatively private instruments, a Committee acts as an officer of the court. The High Court maintains strict, ongoing supervision to prevent financial abuse.
Learn more about the Will and Estate Planning legal gaps that often appear in a crisis.
Responsibilities of the Committee of the Estate
Below is a simplified list of some of the responsibilities of the Committee:
Periodic Accounting:
The Committee cannot simply spend the patient’s money at will. The Court may require them to file periodic statements detailing the exact financial status of the patient’s estate.
Permission for Major Transactions:
The Committee must seek specific directions and permission from the Judge for major financial decisions, such as selling the patient’s real estate or making significant investments.
Medical Updates:
To ensure the Committeeship is still necessary, the Court can request periodic medical certificates to monitor whether the patient’s condition has improved.
Ultimately, the overriding goal of this entire legal mechanism is the protection of the Patient. The Court ensures that the patient’s funds are secured and used exclusively for their proper care, maintenance, and benefit, as well as for the maintenance of their dependent family members.
Watching a loved one lose their mental capacity is emotionally devastating, and the added stress of financial uncertainty only makes it harder.
If you believe your family is currently caught in the “gap” where a Power of Attorney is no longer legally valid due to incapacity, but a Will cannot yet take effect, you do not have to navigate the High Court alone. Reach out to an experienced attorney today to discuss applying for a Committeeship and taking the necessary legal steps to secure your loved one’s care.
Get more clarity on Powers of Attorney in Trinidad & Tobago and when they can and cannot be used.
