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What are the rules in Ontario for establishing guardianship?

The possibility of not being able to make your own decisions may not be a subject you often consider, but anticipating incapacity is an essential part of estate planning. Canadians can most easily address incapacity issues with two important documents: power of attorney for personal care and power of attorney for property.

Each document allows you to name a trusted person to make decisions on your behalf when you are not able to do so yourself. In many cases, though, family members sadly come to realize that their loved one has become mentally incapable, yet no powers of attorney have been designated. This is when applying for guardianship may be the best way to safeguard the interests a vulnerable loved one.

In Ontario, before guardianship can be established, a capacity assessor must assess the individual's ability to make certain kinds of decisions. A capacity assessor must be a qualified professional such as a doctor, nurse, social worker, occupational therapist or psychologist.

The primary question the assessor seeks to answer is whether the person being assessed can understand the consequences of his or her decisions. If it is determined that the person is incapable of understanding the possible consequences, then guardianship may be established.

Under some medical circumstances, someone other than a designated capacity assessor may have to evaluate a person's ability to make health-related decisions. For example, a doctor who has proposed treatment may be called upon to determine whether a patient has the mental capacity to accept or refuse medical treatment.

If you are unsure of the steps to take to have a loved one's capacity assessed for possible guardianship, then it's a good idea to seek counsel from a guardianship lawyer.

Note, too, that powers of attorney can be written in such a way that a capacity assessor's opinion is needed before the powers of attorney go into effect.

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