Legal representation: account holders for people without legal capacity
One of the challenges that beneficiaries and family members have faced since the launch of the Registered Disability Savings Plan is who should be the holder of an RDSP opened for an adult who is deemed not to have legal capacity. In British Columbia people are able to appoint a Representative under the Representation Agreement Act. In other provinces the only alternative has been Adult Guardianship because people without legal capacity are not able to appoint Powers of Attorney.
Adult guardianship is slightly different in each province because each province has it’s own legislation. Even the names of the “adult guardian” is varies: Adult Guardian, Trustee of Estate, Committee, Curator to name a few.
There are, however, a few commonalities. The person in question needs to be deemed “not capable” and an authority, usually a court, must accept the evidence and appoint an adult guardian. The process usually requires the assistance of a lawyer and, along with court costs, is relatively expensive. Furthermore, it is often nearly irreversible and has huge implications for decision making in a person’s life. All in all, it’s not something we would wish on our loved ones and many individuals and families have opted not to partake in the RDSP – to the detriment of the individual’s future financial security.
Minister Flaherty, Canada’s Finance Minister, is aware of the issue and has introduced the carry forward of Canada Disability Savings Grant and Bond entitlements so that people will not be penalized while we seek a solution.
I will be posting more on the options for addressing this issue but in the meantime, I would like to provide a forum for you to post your experiences, concerns, questions and ideas for solutions for this issue.