For whatever reasons, be it advancing age, disease or a traumatic injury, an adult may lose the ability to make and appreciate decisions for themselves.1 If the adult has an enduring power of attorney, then the person they granted certain powers to can continue or commence acting on their behalf (A power of attorney that is not enduring terminates on the loss of capacity of an adult). However, if the enduring power of attorney is not all encompassing (or is not in place), then an adult is left without a competent decision-maker to whatever extent it is lacking (perhaps entirely). This could mean that an adult is unable to make safe decisions for themselves or, if they still have access to their accounts, then they are vulnerable to financial exploitation or errors.
Capacity can ebb and flow, meaning an adult may not have sufficient capacity one day but have it the next day. Perhaps an adult will be able to grant a power of attorney during a moment of lucidity; however, if they are unable to or if there are grounds to challenge the power of attorney then proceeding via the court appointed process may be advisable.
An application can be made to act as either a co-decision-maker or a guardian for an adult. A co-decision-maker makes decisions with an adult, whereas a guardian makes the decisions for an adult. The court will appoint a decision-maker that is the "least restrictive and intrusive" on an adult.2
There are both contentious and non-contentious decision-making applications. In amicable decision-making applications, the adult's next-of-kin, family of equal consanguinity to the applicant, and an adult's power of attorney may consent to the appointment of the decision-maker. In contentious decision-making applications, family members or the adult may decline to consent, formally object and/or file a competing application.
The existence of a power of attorney is not a bar to a competing decision-maker appointment.3 The appointment of a decision-maker terminates the authority granted under an enduring power of attorney; however, a power of attorney may identify who an adult thought, when they had capacity, was well-positioned to act in their own best interests.
There are also temporary and permanent decision-maker applications. Temporary applications are brought in emergency situations where there is a personal or financial threat if a decision-maker is not appointed immediately. Such an appointment only lasts, at most, six months.4 A permanent application means that an indefinite order can be made; however, a decision-maker can still resign or be removed for failing to act in the best interests of an adult. A permanent ordermay also require a review of the order within a certain number of months or years.
For all decision-making applications, the court requires two assessments of an adult's capacity to be completed in the prescribed form by an authorized professional.5 These assessments are often completed by family physicians, geriatric specialists, or psychologists.6 These sworn forms identify to the court the extent of an adult's capacity (or incapacity) and what areas they need a guardian or co-decision-maker for.
Ultimately, the enabling legislation directs the Court to consider the capacity of an adult, the types of decisions to be made, the resources and levels of support required for an adult, the wishes of an adult, the extent, nature and complexity of an adult's estate, the suitability of the applicant, and the need of a decision-maker.7 On a review of all decision-making applications, the court has the discretion to direct a hearing to determine whether the applicant should be appointed as a decision-maker.
For both contentious and non-contentious decision-making applications, enlisting the assistance of a lawyer well-versed in decision-making applications can be very helpful. For more information on co-decision-making or guardianship applications, including the application of the law, please consult the advice of one of our lawyers with expertise in the area.
1. The Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3, s 2.
2. The Adult Guardianship and Co-decision-making Act, ibid, s 3.
3. The Adult Guardianship and Co-decision-making Act, ibid, s 14, 19, 40, 44; The Powers of Attorney Act, 2002, SS 2002, c P-20.3, s 19.
4. The Adult Guardianship and Co-decision-making Act, ibid, s 19, 44.
5. The Adult Guardianship and Co-decision-making Act, ibid, s 12, 38.
6. The Adult Guardianship and Co-decision-making Regulations, SR 66/2011, c A-5.3, Reg 1, s 5.
7. The Adult Guardianship and Co-decision-making Act, ibid, s 13 and 39.
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.