Power of Attorney for Individuals with Mental Disabilities – an Alternative to Guardianship

At a meeting hosted by Developmental Services Ontario (DSO), parents expressed concerns over their children’s ability to make decisions. As a parent, my default reaction is to make decisions for my daughter, especially if the issue is significant. Our ability to make decisions for them is challenged when they reach the age of majority. Legally they are presumed to be capable of making decisions. Parents will often seek to have themselves appointed as guardians.

Many individuals developmental disabilities live independently, have bank accounts, investments, etc. but some are unable to manage these properties by themselves. Rather than giving up ownership and control over these items through guardianship, the individual can sign a Power of Attorney (POA). It is a common tool in the estates law community for all persons. It provides for the appointment of another person – called an attorney - to act on the individual’s behalf. There are two types of POA, one relating to property and the other relating to personal care. This blog will focus on the POA for Property (POA-Property).

Mental Capacity
In order to sign a POA, the individual must have “mental capacity” under the law.  The person must have the ability to understand information relevant for making decisions, and in addition, show the ability to appreciate the consequences of a decision or a lack of a decision.

Understanding includes the ability to grasp and retain information, have awareness of his/her assets and property and the ability to comprehend options to make a decision. Appreciation means giving personal meaning to the facts of a given situation. In capacity assessments under the Substitute Decisions Act terms appreciation is described as a “realistic appraisal of outcome" and "justification of choice".

To determine if the individual can indeed understand and appreciate, questions can be asked regarding his or her property. Depending upon the subject matter, here are some examples:

  1. Has a family member expressed concern about how well you are able to manage money or keep track or your affairs? Have you refused to have an attorney to manage your property? What are your concerns?
  2. What type of property do you own? Where is it located?
  3. What would you do if you lost your wallet? Forgot to pay your bills?
  4. Have you got yourself into debt because of excess spending? Can you make a budget and stick to it?
  5. What is the reason for wanting to buy this investment? Do you understand the consequences?
  6. Do you know that can cancel or revoke your Power of Attorney for Property? Would you consider doing that at any time?
  7. Do you understand the attorney’s role in the Power of Attorney?
  8. What would you do if the attorney did something that you felt was not in your best interest?

So where should a parent go? My approach is to first speak with my daughter's medical doctor. Her doctor knows my daughter's capabilities. 

Later we will examine how to take the next steps in obtaining a Power of Attorney for a dependent adult.


Tagged under: Mental Capacity