Anticipating mental incapacity is an important but often overlooked aspect of estate planning. As we discussed in a recent post, Canadians can plan for mental incapacity by creating powers of attorney for property and personal care.
In many cases, though, these documents have not been created, yet a loved one has become mentally incapable of understanding the consequences of medical and financial decisions. People in this position are extremely vulnerable, and it may be necessary to establish guardianship to ensure that medical and financial decisions are made in a loved one’s best interests.
Ontario’s Substitute Decisions Act describes situations in which a professional — a capacity assessor — may be designated to assess a loved one’s ability to make financial and medical decisions. Professionals who are eligible to become capacity assessors are doctors, registered nurses, registered social workers, psychologists and occupational therapists.
In order to name someone as guardian of an incapable person’s property, the opinion of a capacity assessor is necessary. A power of attorney document may also specify that a capacity assessor’s opinion is required before the power of attorney can be used.
The duty of the assessor is to determine whether the individual understands the potential consequences of medical or financial decisions. It is therefore important to identify the category of decision-making — for example, health care, living arrangements or finances — and determine capacity in that specific regard.
If you believe your loved one is incapable of making important financial and medical decisions, then it is a good idea to discuss your concerns with an experienced guardianship lawyer. To learn more, please visit Hagel Lawfirm‘s guardianship overview.