Why and when

If an adult with capacity has not prepared a valid Enduring Power of Attorney and Personal Directive and then becomes incapacitated and unable to make personal, financial and legal decisions, someone needs to step in to help them do this. This requires a Court application to appoint an “interested person” or persons to guide or decide.

This Court application also applies to people with special needs who are eighteen or older and cannot manage their own affairs reasonably and properly.

That someone is unable to make decisions in some area of their lives is determined by someone specifically trained to be a Capacity Assessor (usually a doctor).

Incapacity is not all or nothing. Someone may require assistance only in some areas of their life. Capacity can change over time as a person improves or deteriorates.

Guardianship

There is a continuum of decision making depending on the degree of incapacity of the person needing some help.

Supported Decision Maker

Co Decision Maker

Guardian

The person in need makes their own decisions but has people to help them get information, make the decisions and communicate the decisions to others.Can be set up by completing a regulated form. The person in need can make decisions but only with support so they and a co-decision maker do it together. Needs to be Court-appointed. If the person in need is unable to make their own decisions in some or all areas of their personal life a Guardian(s) will be necessary. Needs to be Court appointed.

As with Enduring Power of Attorneys and Personal Directives an alternate should be appointed in case the Guardian is temporarily unavailable or incapacitated themselves.

Trusteeship

If you have failed to plan for your possible incapacity or have never been able to manage your finances because of disability, an “interested person” can apply to the Court to be appointed as your Trustee. Once appointed by a Court Order they will look after your business affairs, banking, investments, real estate and all personal property.

Even if the person has no Enduring Power of Attorney a Court Order appointing a Trustee may not be necessary. If their assets are small and their income source is limited to, say, Assured Income for the Severely Handicapped (AISH), Canada Pension Plan(CPP) or Old Age Security (OAS), an “informal” or “small t” trustee may deal with matters.