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If an adult loved one is unable to understand, manage, and make their own decisions about their own property/finances, and they are not mentally capable to create a Power of Attorney for Property, then Adult Guardianship of Property MAY be required.
In Ontario, legal authority must be designated to someone in order for that individual to “help” or advocate, or a make decisions in regards to someone else’s property/finances.
There is no such thing as “parent”, “spouse”, or “family” rights when it comes to managing someone’s property.
In Ontario, Legal Authority, in this regard, means either a Power of Attorney for Property, or Guardianship of Property– there are no other options, alternatives, or substitutes.
In an ideal situation, every adult age 18 and above will have made the effort to properly prepare and/or have created, a Will and Powers of Attorney.
There are two kinds of Powers of Attorney (POAs):
A POA for Personal Care allows a person (attorney) to make medical treatment and personal care decisions for the grantor. When a POA of personal care is signed and properly witnessed, a POA for Personal Care is valid but can only be used as follows:
A POA for Property is a document which allows you (the grantor) to appoint another person (your attorney) to act on the grantor’s behalf when they are not in a position to deal with their property and financial affairs. This may be due to illness or mental incapacity or because they are traveling.
When a POA of Property is properly signed and witnessed and if there are no conditions, a POA of Property is effective as long as you are alive or until you revoke it in writing. Unless you put in a condition regarding mental capacity, a POA for Property can be used as soon as you sign it.
It is common for adults to hire a lawyer to prepare a Will, and Powers of Attorney and the creation of these documents is done with the adult’s ability to give instructions and to sign these documents. Knowing that the adult is “capable” (i.e.: has the mental capacity) of giving instructions and that the adult is physically able to sign the document is essential to ensure that the documents are legally valid and that their wishes can be carried out.
In Ontario, the Substitute Decisions Act, sets out the criteria for determining if a person has the mental capacity required to ensure that a POA is legally valid.
If your adult child or other family member is found to not have the capacity to sign his or her own Powers of Attorney, it may be necessary to apply for “Guardianship”.
A Guardian is someone who steps in to make decisions for the person who lacks capacity. A Guardian of Property would be necessary for situations as when someone is in a coma, has a mental illness, profound developmental disability, brain injury, dementia, or any accident or illness that can impair cognitive ability. A Guardian is very similar to a POA as it has very similar authorities.
A Guardian of Property is responsible for the incapable person’s money, real estate, bills, vehicles, and personal belongings. A Guardian of Property can do almost anything in regards to someone’s property EXCEPT make a will, or make changes to a “beneficiary name” on the incapable person’s behalf, to an account such as for investments, insurance, etc.
Statutory Guardianship of Property does not give anyone the legal authority to make decisions about what would be typically included as Guardian of Personal Care such as: Healthcare, nutrition, clothing, shelter, safety, hygiene. Fortunately, relatives such as parents are often already the substitute decision maker for medical decisions and don’t really need that extra legal authority to make decisions over hygiene etc.
Under the Health Care Consent Act everyone in Ontario has a substitute decision-maker (SDM). We all have an automatic SDM when it comes to treatment decisions we are incapable of making. The SDM is determined using a hierarchy of decision makers.
As previously mentioned, it isn’t always necessary to seek both types of guardianship. Often, Guardianship of Property is the only one you will need.
To be awarded guardianship through a judge in court.
NOTE: Going to court is the only way someone can be awarded Guardianship of both Property and Personal Care together, or just Guardianship of Personal Care.
The second way is to be appointed Guardian of Property without going to court and that is by applying for Statutory Guardianship of Property through the Office of the Public Guardian and Trustee (PTG). (THIS IS WHERE TBH LEGAL FITS IN!!!)
The word “statutory” comes from the law, referring to a “statute”. Therefore, going to “court” is not required. The application process is much cheaper than going to court, however a capacity assessment by a designated capacity assessor is required (for an additional fee), and an in-depth management plan must be created, approved, and put into place for Guardianship of Property to be approved. Statutory Guardianship can be obtained for “property” only. This option is not available for Guardianship of Personal Care. The only way to become someone’s Guardian of Personal Care is to go to court.
NOTE: It is possible to become someone’s Guardian of Property, without becoming Guardian of Personal Care, and visa versa.
they are unable to apply for the Disability Tax Credit (DTC)
As a parent, we want to give our kids the most independence possible when they are entering “adulthood”. For parents with adult children who have developmental disabilities, routines have been thoughtfully developed to engage and involve their child in as many decisions as possible to help them live their life to the fullest, and in a meaningful inclusive way. Because the applicant is only applying to be the “Guardian of Property”, (not the Guardian of Personal Care, or Guardian of the Person) the Adult Child / Incapable Adult will, by law, retain their rights included in the “Personal Care” component. This means the Adult Child / Incapable person will retain their rights to decisions regarding their: healthcare, nutrition, clothing, shelter, safety, and hygiene.
What is #OneVoice?
Becoming a loved-one’s Guardian of Property is an important part of caregiving, and obtaining “Guardianship of Property” of your loved one is actually very different than obtaining “Guardianship of the Person” (which is both property and personal care together).
As per “Ministry of the Attorney General The Office of the Public Guardian and Trustee Duties and Powers of a Guardian of Property”, Queen’s Printer for Ontario, 2007, Reprinted in 2020, Legal Responsibilities of a Guardian, Page 5.
As the Guardian(s) of Property…
These points from the Office of the Public Guardian and Trustee booklet, all strongly emphasize that Guardianship of Property is a TEAM effort. #OneVoice
If you obtain Guardianship of Property for your adult loved one – THEY WILL RETAIN THEIR RIGHTS to make decisions regarding their “Personal Care”, and they retain the right to be consulted regarding decisions to be made regarding their “property”. The individual will only lose the right to the “final say” in regards to managing their property.
How To Become a Guardian of Property
TBH admin provides an affordable Guardianship of Property Application Service as required by the Office of the Public Guardian and Trustee (PGT).
Clicking here will direct you to:
