While the law presumes that every adult over the age of 18 has mental capacity to make his or her own decisions, illness, injury and age can often compromise our decision making abilities.

The test for incapacity to manage property under section 7 of the Substitute Decisions Act (SDA) is stringent and requires that the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.  A parallel test (“understand and appreciate”) is set out at section 45 of the SDA as it relates to a person’s ability to manage health care, nutrition, shelter, clothing, hygiene or safety.

The test does not focus on the quality of the person’s decision making, but rather on the underlying ability to understand information and foresee the consequences of a particular decision.

It is often difficult to discern whether a loved one no longer has capacity to make his or her own decisions.  While the law seeks to protect individual autonomy, it also provides safeguards to protect the property and physical well-being of those whose decision making abilities have become compromised.

The SDA recognizes that capacity is context specific.  An individual may have capacity to grant a Power of Attorney, for instance, but not to enter into a contract independently.  Where there is a continuing Power of Attorney for Property or Care, that Attorney can act on the person’s behalf once the person can no longer make independent decisions.

If there is no continuing Power of Attorney, then the SDA allows for the appointment of a Guardian of the Property or of the Person.  Where the Court is satisfied that there is a friend or family member who is a suitable substitute decision maker, that person can be appointed to be a Guardian or Property and/or the Person by order of the Court.

If there is no such candidate willing to serve as Guardian, then the Office of the Public Guardian and Trustee will be appointed by default as statutory guardian.

The Guardian has broad powers to make decisions on behalf of the incapable person, and can do on anything on their behalf except make a will.

Disputes around Guardianship can arise at every step of the way beginning with the difficult discussions that need to happen when a loved one begins to show impaired decision making abilities.  Sometimes there are disagreements within a family as to who should be entrusted with decision making authority and other times, there are disputes where the activities of the Guardian are questioned by other family members.

These disputes often need to be resolved by way of Court order, where the Court has parens patriae jurisdiction to ensure that the rights of children or incapacitated adults are protected by the state.

The lawyers at ZTGH have expertise in dealing with capacity disputes. If you are concerned about the decisions a Guardian is making for a loved one, or there is a dispute over who will perform Guardianship duties for a family member please contact us at 416-777-5237