What does it mean to be found “incapable” of making decisions?
In Ontario, the law assumes that all persons who are over the age of 18 are capable of making their own decisions until proven otherwise. When an adult is found to be “incapable”, they are not capable of understanding or appreciating:
- The information required to make an informed decision, and/or
- The consequences that may arise if they make or fail to make a decision.
A person may be found incapable of making decisions relating to their personal care and/or property and finances.
It is important to note that incapacity is not static. A person’s capacity can change over the course of their lifetime. There is also no global finding of incapacity, meaning that a person who has been found to be incapable of making decisions in one area of their life will not automatically be found incapable of making decisions in another area.
What happens when a person is found incapable?
If a person is found to be incapable of making decisions relating to their personal care or finances, someone else will need to step in as their substitute decision maker. There are two ways this could occur: by power of attorney (“POA”) or guardianship. As will be explained below, if the individual has appointed a POA, that person will be responsible for making decisions on the incapable person’s behalf. If there is no POA, a person may apply to the Court to be appointed the incapable person’s guardian of property or of the person.
Power of Attorney
It’s important to plan ahead and appoint a POA to make your financial or healthcare decisions in the event you are no longer capable. A POA is a legal document that assigns an individual the ability to make decisions on healthcare or financial related issues should you become incapable.
Guardianship
If there is no POA a person may apply to the court to be appointed the incapable person’s guardian. Guardianship may only be granted after the person is found to be incapable. There are two types of guardians under Ontario law:
- Guardian of the person
- Guardian of property
Guardian of the person
A guardian of the person is appointed to make personal care decisions for the incapable individual. Some examples of personal care decisions a guardian of the person would make relate to the person’s nutrition, hygiene, and safety.
Guardian of property
A guardian of property is appointed to make financial decisions on behalf of an incapable person.
It is important to note that guardians of property and personal care are restricted to making decisions within the area they have been appointed to. Thus, a guardian of person cannot make decisions regarding the person’s property and the same is true with guardian of property.
As a last resort, if the Court cannot identify a person to be appointed an incapable person’s guardian, the Public Guardian and Trustee can be appointed.
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Disclaimer: Please be advised that this blog is intended to act as a general overview on a legal topic and does not constitute legal advice. Each legal issue is independent and unique and in order to get qualified legal advice we recommend you consult with a Richmond Hill estates lawyer. Please note that lawyer-client relationships are only established after you have signed a retainer agreement with our firm.
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
