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Becoming mentally incapable to make decisions for yourself, whether due to an illness or accident, could happen to you. Without powers of attorney in place, you won’t have a say in who will make decisions on your behalf. Instead, these decisions could end up being made by a court or government agency.

Powers of attorney are legal documents, made while you have mental capacity, that allow you to determine who will have the power to make decisions for you.

In Ontario, there are two types of powers of attorney that come into play in the event that you become mentally incapable: a Power of Attorney for Personal Care and a Continuing Power of Attorney for Property.

A Power of Attorney for Personal Care allows you to name a person, or more than one, as the attorney to make decisions on your behalf regarding matters such as medical treatment, health care, nutrition, shelter, clothing, hygiene and safety.

In order to draft a Power of Attorney for Personal Care, you must:

1. be at least 16 years old;
2. have the mental capacity to understand whether the attorney you choose is truly concerned with your well-being; and
3. understand that you may need this person may make decisions for you.

A Power of Attorney for Personal Care only comes into effect if you are found to be mentally incapable of making personal health care decisions, meaning that you can’t understand the information that is relevant to the particular decision or can’t appreciate the consequences of making, or not making, a decision about the matter.

In the event that become you mentally incapable but don’t have a Power of Attorney for Personal Care in place, a family member will typically be able to make decisions for you, unless a person is appointed by the Consent and Capacity Board or a guardian is appointed by the court. Where you have no family members willing or able to act as your representative, the Public Guardian and Trustee, a government official, will make these decisions.

With a Continuing Power of Attorney for Property, you can name who you want to look after your financial affairs, deal with your property, pay your expenses and provide for your support.

A Continuing Power of Attorney for Property becomes effective upon signing and remains valid, or “continues”, if you subsequently become mentally incapable.

To draft a Continuing Power of Attorney for Property, you must:

1. be at least 18 years old;
2. know what property you have and its approximate value;
3. be aware of your obligations to the people who depend on you financially;
4. know what you are giving your attorney the authority to do;
5. know that your attorney is required to account for the decisions he or she makes about your property;
6. know that, as long as you are mentally capable, you can revoke your Continuing Power of Attorney;
7. understand that if your attorney does not manage your property well, its value may decrease; and
8. understand that there is always a chance that your attorney could misuse his or her authority.

You should keep in mind that if you don’t have a Continuing Power of Attorney for Property, the Public Guardian and Trustee, a government official, has broad powers under the Substitute Decisions Act, 1992, to manage your property should you become mentally incapacitated, and charges a fee for doing so. Further, the process for a family member to apply to become your guardian of property after the Public Guardian and Trustee has been appointed can be time-consuming and costly.

For further information regarding powers of attorney, or wills and estate matters, contact Suzanna Winsborough at (905) 276-0434 or swinsborough@kmblaw.com.