As an Ontario resident, you should plan for possible mental incapacity including any consent and capacity issues that may arise. Sitting down with a succession lawyer that can guide you through the complexities of appointing a Power of Attorney will be in your best interest.
We can prepare all documents to help you appoint the right individual to carry out your estate and assets if you become mentally incapable in the future.
We offer many services which include:
- Powers of Attorney for personal care, and to manage property and financial matters
- Succession planning for small to large businesses
- Inter-Vivos trusts for when an individual is still alive
How is “mental capacity” determined?
As an individual ages or experiences traumatic events that lead them to a state in which they cannot carry out their wishes as planned, a guardianship lawyer can help settle the situation and provide sound professional advice. A person is incapable of making a decision if they do not understand the information relevant to the decision, or simply do not understand the implications of the circumstances, or in some cases both.
In Ontario, there are clear legal requirements that dictate who is capable of making decisions. Two criteria must be met, which are:
(i) The person must have the capacity to understand the information that is presented for making the decision. Can the person responsible fully grasp the factual information that will be processed during the decision-making process? Additionally, are they able to make a sound decision if different options are available?
(ii) The person must understand and accept the consequences of the decisions that may occur. The person must be able to apply the applicable facts to themselves, and to justify their choices. The decision does not need to be based on what is relatively ‘good’ or relatively ‘bad’. Instead, the individual will be assessed on whether they can explain their choices and justify them and whether the choices are based in reality.
What is substitute decision-making in Ontario?
Substitute decision-making is when an individual is able to make decisions on the behalf of another individual who is currently not mentally capable. In Ontario, substitute decision-making is a vital component of protecting the rights of a mentally-incapable person. In the circumstance of health practitioners, they must get informed consent before commencing any treatment on a mentally incapable person from the Substitute Decision Maker (SDM).
An appointed SDM must try to make an informed decision as if they were the patient, or carry out what the mentally-incapable person would have proceeded with if they were able to.
What is the difference between Power of Attorney and guardianship?
If there is no Power of Attorney appointed in advance of becoming mentally incapable, family and friends will need to take additional steps to appoint an individual as a guardian. In some cases where the Ontario court cannot identify an individual to act on behalf of the mentally incapable person, the Public Guardian and Trustee automatically becomes the guardian, giving them the power to make decisions on the person’s property and estate.
In order to ensure that your wishes are carried out accordingly, you should assign your Power of Attorney as soon as possible.
It is wise to appoint an attorney to help represent an individual’s personal items and property and avoid a guardian being appointed. An attorney is appointed by an individual who is mentally capable to do so, while a guardian is appointed by the court or the Office of Public Guardian and Trustee (OPGT). If the guardian is appointed by the court or OPGT, it might not be the same individual that the mentally incapable person would have chosen.
Our service is discrete, confidential and cost-effective. Book a consultation today to discuss your best interest in case of becoming mentally incapable.