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).
Frequently Asked Questions
A Power of Attorney (Power of Attorney document) allows an individual to choose someone they trust to make financial or personal decisions on their behalf. A guardian, however, is appointed by the court when no valid Power of Attorney exists and the person is found incapable of managing their own affairs.
A Power of Attorney can take effect immediately upon signing, or it can be written to take effect only if the person is declared mentally incapable. The exact timing is determined by the wording of the document.
Yes. The same person may serve as your Attorney under a Power of Attorney and later be appointed as your guardian by the court. However, if you already have a valid Power of Attorney in place, the need for a guardian is usually avoided.
A guardian may make decisions about personal care (such as medical treatment, housing, and day-to-day well-being) or property (such as financial management, paying debts, and handling investments). Their powers are determined by the court order and differ from the authority granted in a Power of Attorney.
Yes. A Power of Attorney can be revoked or changed at any time, as long as you are still mentally capable of making that decision. Revocation should be put in writing and communicated to everyone who relied on the original Power of Attorney.
If two or more people are appointed jointly under a Power of Attorney, they must make decisions together. If they cannot agree, the disagreement may need to be resolved by mediation, or in some cases, by seeking direction from the court.
Safeguards include fiduciary duties that require the Attorney under a Power of Attorney to always act in the best interest of the grantor. Family members and beneficiaries may request financial records, and courts can intervene to investigate misuse or fraud.
A guardian is appointed only after a court application, supported by medical and financial evidence showing that the person is incapable. The court will then determine whether a guardian is necessary, even if a Power of Attorney exists.
A property guardian must manage assets responsibly, which includes: handling bank accounts and investments, paying bills, debts, and taxes, keeping detailed records, and preserving the person's property and wealth. These duties are similar to what an Attorney under a Power of Attorney for Property would do, except a guardian acts under a court appointment.
Yes. If a guardian or an Attorney under a Power of Attorney misuses their authority, neglects duties, or fails to act in the best interests of the person, concerned parties may apply to the court for their removal and replacement.
DISCLAIMER: If you/your loved one is being abused physically and is in danger, please contact the appropriate authorities such as the police. The information on this website relates to the civil crime of financial elder abuse (Gale Law does not practice criminal law).
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