Ontario’s Substitute Decisions Act , 1992 (SDA) is the statute that governs the matters of guardianship and capacity. It provides how mental incapacity in adults is to be dealt with from the perspective of decision-making about property and personal care. The statute was designed specifically to give individuals more control over their lives in the event of incapacity.
The law is also meant to clarify the obligations of substitute decision-makers; respect individuals’ decisions prior to becoming mentally incapable; ensure that certain safeguards are in place to prevent manipulation and abuse; and recognize that families and loved ones play an important role in making decisions for individuals who are no longer mentally capable.
Further, the SDA is meant to restrict public guardianship to situations where another suitable alternative is not available.
There are two ways by which a person can be appointed as substitute decision-maker for property, and also two ways by which a person can be appointed as substitute decision-maker for personal care.
A decision-maker for property can be named in a power of attorney document. As we discussed in a recent post, executing power of attorney for property allows you to name a trusted person (attorney for property) to protect your property interests. power of attorney must be executed prior to your becoming incapable of making decisions, so it is important to include this document in your estate plan sooner rather than later.
Another way of naming a decision-maker for property is by making an application to the court for the court appointment as a guardian of property of a loved-one who is no longer capable to execute a power of attorney for property and can no longer mange his or her affairs. Applications for guardianship could be very unpleasant as they often bring up and out existing family conflicts and could lead to serious dispute.
The Public Guardian and Trustes (PGT) will become the guardian of property of the person incapable of managing property when there is no attorney for property or guardian.
A decision-maker for personal care may be named either by executing power of attorney for personal care, or by court appointment of guardianship. Again, the preferred way is to name the attorney for personal care before incapacity.
The Ontario government provides a helpful guide to the Substitute Decisions Act 1992.