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Caring for adults who are mentally incapable

On Behalf of | Feb 25, 2022 | Guardianships & Capacity

There are instances when an adult might be mentally incapable of making his or her own decisions. There might be a number of reasons for this — dementia, severe depression, anxiety, among others. In these cases, someone who is mentally astute may have to become the legally-authorized substitute decision maker for this person. In Ontario, there are rules regarding these decision makers and guardianships. 

The Substitute Decisions Act

In 1992, the Ontario legislature passed the Substitute Decisions Act which addresses guardians of property and guardians of the person as substitute decision makers for those who lack the mental capacity to act for themselves. People can’t make decisions if they don’t understand the information provided to them relevant to the decision and/or they don’t understand what may happen to them if they do or don’t make a decision. There are differences between guardianship and a power of attorney. 

A Power of Attorney versus a guardianship

A POA is chosen by a person when he or she is capable. The Office of Public Guardian and Trustee (OPGT) or the court appoints a guardian. Most people prefer choosing someone who will make decisions for them with a POA for property or personal care, rather than leaving it to the court to name someone for the task. If a guardian of the person is appointed, he or she could make decisions regarding: 

  • Hygiene 
  • Health care 
  • Safety 
  • Nutrition 
  • Clothing 
  • Shelter 

This guardian can only make decisions in areas the person cannot. For instance, if the person can manage personal hygiene decisions, but not decisions about finances, the guardian would just handle the financial affairs. It is incumbent upon the guardian to explain his or role to the incapable person, to the extent possible. 

There are many things that enmesh with guardianships in Ontario. It may be a good idea to speak with a lawyer about the duties of guardians for anyone who is or thinks he or she could become involved in this type of situation. An experienced lawyer can help guide an individual through these challenging times substantially lowering the odds of any missteps being taken.  

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