Capacity issues, Powers of Attorney (POA) disputes, and guardianship challenges often arise in estate litigation when questions of undue influence, decision-making authority, or mental fitness come into play. With expertise in navigating these sensitive matters, Gale Law provides strategic guidance to protect vulnerable individuals and resolve conflicts effectively.
What is Guardianship?
A guardian is a person appointed by the Courts or the Office of the Ontario Public Guardian and Trustee (OPGT) and is responsible for managing the affairs of an incapable person (someone who cannot mentally make a decision).
In Ontario, there are two types of guardianship: Guardians of personal care, and Guardians of Property, the difference between the two is discussed in the dropdowns below.
While guardianship and Powers of Attorney (POAs) share similarities, the key difference lies in timing and appointment. Whereas a POA is granted by a capable person in advance, a guardian is appointed when the individual is already incapable and has not prepared a valid POA. There are two procedures for becoming a court-appointed guardian of property, “standard procedure” and “summary disposition procedure”.
What is a Power of Attorney?
A POA is a legal document where the grantor (person signing the document) identifies and authorizes another person to make important legal and financial decisions on their behalf.
In Ontario, there are two types of POAs: POAs for property, and POAs for personal care, the difference between which is discussed in the dropdowns below. If an emergent situation such as an accident or illness occurs and a person become incapable, the POA would represent the incapable person to make decisions on your behalf.
Similar to a guardian, a POA owes a legal duty to act in the best interest (fiduciary duty) of the incapable person (the grantor). It is important to note that in this context, “attorney” is referring to someone acting as your representative. This individual does not have to be a lawyer.
What is Capacity?
Central to conversations on guardianship and POAs is that of capacity (mental ability). Ontario law presumes that an adult individual has the capacity to make their own decisions.
Some indications that a person might not have sufficient mental capacity include:
- The individual not understanding information that is relevant to the decision making process;
- The individual not being understanding the potential consequences of their decisions
Capacity can be assessed through a formal assessment (testing, AKA a “capacity assessment”) which can completed by various professionals (experts) and government approved assessors, depending on the scenario. If, after a formal assessment, the person is deemed mentally incapable, an individual may apply to be their “substitute decision maker” through filing either a guardianship or POA application, as discussed above.
If you are interested in requesting a formal assessment for someone or yourself:
- Directly contact an assessor to find one appropriate for you. Whether an assessor may be appropriate might depend on affordability, their availability, geographical area they work in, and their area of expertise.
- Be able to explain to the assessor what type and purpose of the assessment you are looking for. For example,
a. An assessment for evidence in court;
b. An assessment for a guardianship application - If an assessment for a guardian of property application, fill out the “Request for Capacity Assessment Form” and hand it to the chosen assessor.
It is important to note that you cannot force someone to undergo a mental capacity assessment if they do not wish to undergo one. It must be done voluntarily. The only exception to this is if the assessment has been court-ordered (meaning a judge has ruled that an assessment must take place).
