Canada: Incapacity Planning: Who Decides When You Cannot?

Incapacity planning refers to addressing circumstances in which you are unable to make decisions on your own behalf while you are alive. Turning your mind to potential future incapacity can give you agency in decisions made on your behalf and soften the impact of a further temporary or permanent incapacity for your loved ones.

This post focuses on Ontario's framework for two key realms of decision making: property and personal care. In general, when you are unable to make these decisions, they are made by either your attorney¹ under the terms of a power of attorney document or they are made by a statutory or court-appointed guardian of property.² The Substitute Decisions Act, 1992 (the "SDA")³ sets out the framework for powers of attorney and guardianships of property and of personal care/the person.

Decisions about Property

Decisions about property include those concerning a person's assets and liabilities of all forms, including, e.g., cash and investments, real estate, corporate interests, digital property, and taxes.

The SDA permits a person (referred to as the "grantor") to grant a continuing power of attorney for property. A continuing power of attorney is a document which gives authority to the attorney to manage the grantor's property even once the grantor has lost capacity to make decisions about their property. The attorney will be able to do on the person's behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney.

What happens if a person does not have a power of attorney for property in place? If a certificate is issued under the Mental Health Act,⁴ the Public Guardian and Trustee will be the person's statutory guardian of property unless and until they are replaced.⁵ If no certificate has been issued under the Mental Health Act, it will be necessary to start a guardianship application.

Any person⁶ may apply to the Ontario Superior Court of Justice to seek to be appointed by court order as an incapable person's guardian of property. Guardianship applications take time (often months, and sometimes even years) and can cost in the tens of thousands of dollars (and much more if the guardianship is contested). A guardianship application must be served not only on the allegedly incapable person and the Public Guardian and Trustee, but also on their spouse or partner, children who are at least eighteen, parents, and brothers and sisters (if these people are known). Depending on your family dynamics, this may not be consistent with your wishes about who is given notice of your incapacity. While guardianships play a crucial role in the protection of incapable adults, they require a public court process, when you may wish for your personal circumstances (such as your medical circumstances and financial circumstances) to be kept private. The court might appoint someone as your guardian you would not choose yourself.

Decisions About Personal Care

Decisions about personal care include those concerning health care, nutrition, shelter, clothing, hygiene and safety.

What happens if a person loses capacity to make personal care decisions without a power of attorney for personal care in place? While the Health Care Consent Act identifies substitute decision makers for medical treatment where there is no attorney for personal care or guardian of the person, decisions relating to other personal care matters are not clearly provided for by legislation. It may be necessary for a family member or friend to apply to the court to have a guardian of the person appointed. As with a guardianship for property, such an application may be expensive, time consuming, invasive, and at odds with your personal preferences.⁷

Your attorney for property and your attorney for personal care do not need to be the same person. As a practical matter, if a person has lost capacity to manage property and personal care, it is important that the attorneys for property and for personal care are able to work together cooperatively.

The Importance of Legal Advice in Incapacity Planning

While there are standard form powers of attorney available online, reliance on these "one size fits all" forms can be risky.

A lawyer can help to ensure your power of attorney documents are legally valid and have your intended effect. A lawyer can also help you to understand the options you have when preparing a power of attorney document. For example, a power of attorney for property can be drafted to be immediately effective or effective at a specified date or when a specified contingency happens (such as a declaration of incapacity).⁸

A lawyer can also explain the duties and obligations of an attorney for property and attorney for personal care, and the risks of misuse of a power of attorney document. This will help you identify who you trust to fulfil these important roles.

Planning Ahead

Incapacity planning gives you a voice in who makes critical decisions about your life when you are unable to make these decisions yourself and can avoid the stress and expense of a court proceeding.

Footnotes

1. In the context of powers of attorney, "attorney" refers to the named substitute decision maker, not a lawyer.

2. In addition, the Health Care Consent Act, 1996, SO 1996, c 2, Sched A, as amended (the "HCCA"), sets out a hierarchy of substitute decision makers for medical treatment decisions. See s. 20 of the HCCA.

3. Substitute Decisions Act, 1992, SO 1992, c 30.

4. Mental Health Act, RSO 1990, c M7, as amended.

5. SDA, s 15. There is a process to replace the Public Guardian and Trustee as statutory guardian of property.

6. Other than a person who provides health care or residential, social, training or support services to an incapable person for compensation. There is an exception for spouses, partners, relatives, attorneys for personal care, and attorneys for property.

7. An application for a guardianship of the person must be served on the allegedly incapable person's children aged sixteen and over.

8. SDA, s 7(7).

Originally Published by Cidel

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.