June 02, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
When an individual´s ability to make decisions about their finances is impaired, someone else must step in and make these decisions on that person´s behalf. What follows is information to consider if there are questions about whether an individual´s ability to make decisions about personal care or finances is impaired.
STEP 1: Has the individual granted a valid power of attorney?
· When a person signs a Power of Attorney, they give another person (or people), who are specifically named in the Power of Attorney, the right to make decisions on their behalf.
· Because Powers of Attorney are often drawn up at the same time a person´s will is drawn up, it is useful to determine if someone has signed a will when trying to determine if a Power of Attorney for financial decisions exists.
· A person can only sign a Power of Attorney if they are mentally capable of making these decisions. If a person suffers an acquired brain injury and as a result, loses the ability to make decisions about health care and finances that are in their own best interest, they cannot then execute a Power of Attorney.
STEP 2: What if there is no Power of Attorney? The Role of the Office of the Public Guardian and Trustee
· If an individual has not signed a valid Power of Attorney and becomes incapable of managing his or her finances, the Office of the Public Guardian and Trustee (OPGT) is required, by law, to step in to protect the person´s rights and interests by assuming responsibility for that person´s financial affairs.
STEP 3: Determining if the individual is incapable of managing property
· Before the OPGT steps in to manage an individual´s affairs, it must be determined that the individual is, in fact, incapable of making financial and / or health care decisions that are in his or her own best interest.
· This is determined by having an individual undergo a CAPACTITY ASSESSMENT, which is a formal assessment of a person's mental capacity to make decisions about property. Capacity Assessments are conducted by specially qualified assessors who must follow specific guidelines.
· If there are concern´s about an individual´s ability to make personal care or financial decisions that are in his or her own best interests, a list of capacity assessors can be obtained from the Office of Capacity Assessors by calling: (416) 327-6766 or 1-866-521-1033.
STEP 4: Once a Capacity Assessment is completed
· Once the capacity assessment is completed and it has been determined that an individual is not competent to make decisions about finances, the capacity assessor will submit a report to the Office of the Public Guardian and Trustee.
o The OPGT will then assume responsibility for whatever decisions the incapable individual would normally make in the handling of finances.
The Right to Dispute a Capacity Assessor´s Decision
· A person who has been assessed has the right to dispute the assessment and have it reviewed by the Consent and Capacity Board, a tribunal operated by the Ministry of Health. People who are assessed as incapable of managing property must, by law, be advised of their right to appeal.
STEP 5: Substituting another person for the OPGT as an incapable individual´s Guardian of Property
· The OPGT is considered to be the guardian of last resort. Accordingly, it actively encourages family members of an incapable person to apply to be appointed to act as an individual´s Guardian of Property.
· The OPGT has the authority to appoint relatives over the age of 18 including, parents, spouses, siblings and children to act as an incapable person´s Guardian of Property.
· A person who is NOT a relative can also be appointed as an incapable person´s Guardian of Property, but the OPGT does not have the authority to appoint a non-relative. These individuals must apply to the court to be appointed.
· A relative who wishes to be appointed as an incapable person´s Guardian of Property must:
o Complete and submit to the OPGT an Application (Form 1).
o Compete and submit to the OPGT a Management Plan (Form 2).
o Both the Application (Form 1) and Management Plan (Form 2) are regulated forms and must be submitted in the form provided by the OPGT. Blank documents and guides for filling them out can be obtained by contacting the OPGT. Contact information for the OPGT, including its website where blank copies of an Application (Form 1) and a Management Plan (Form 2) can be downloaded, are found at the end of this document.
o In the Management Plan the person applying to become an incapable person´s power of attorney lists:
· all of the incapable persons property and assets including real estate, stocks, investments, bank accounts, and collectibles.
· all of the person´s expenses including debts, loans, and everyday living expenses.
· their proposed plan for the incapable person´s assets and expenses and how they intend to ensure that the incapable person´s expenses are met.
· The OPGT will review the application and proposed Management plan and may:
o Accept the application and management plan as presented; or
o Require modifications to the application and management plan
What if more than one person wishes to act as an incapable person´s Guardian of Property?
· The OPGT does NOT have the power to decide between two different applications. If more than one person wishes to act as an incapable person´s Guardian of Property and they cannot agree to act as a committee then the applications must be made to court for a judge to determine which individual will be appointed.
HOW TO CONTACT THE OFFICE OF PUBLIC GUARDIAN AND TRUSTEE
Toronto Regional Office Hamilton Office London Office
595 Bay Street, Suite 800 119 King Street West, 9th Floor 199 Dundas St, Ste 100
Toronto, ON M5G 2M6 Hamilton, ON L8P 4Y7 London, ON N6A 1G4
Tel: 416-314-2800 Tel: 905-546-8300 Tel: 519-660-3140
Toll Free: 1-800-366-0335 Toll Free: 1-800-891-0502 Toll Free: 1-800-891-0504
Fax: 416-314-2619 Fax: 905-546-8301 Fax: 519-660-3148
Guardianship Investigations Unit Tel: 416-327-6348
Treatment Decisions Unit Tel: 416-314-2788