What Happens if Someone Loses Capacity and Has No Power of Attorney in Ontario?

If your parent has lost capacity and has no continuing power of attorney, the Public Guardian and Trustee can become their statutory guardian of property after a capacity assessment, or a court can appoint a guardian. Any person may ask a capacity assessor to assess another person's capacity to manage property, and the request must state that the requester knows of no attorney under a continuing power of attorney with authority over all of the person's property.

If the assessor issues a certificate of incapacity, the Public Guardian and Trustee becomes the statutory guardian of property. The person found incapable must be told they can apply to the Consent and Capacity Board for a review. A spouse, partner or relative may apply to the Public Guardian and Trustee to replace it as guardian, using Form 1 with a management plan on Form 2. Someone who is not a spouse, partner or relative, or who prefers the court route, can apply to the Ontario Superior Court of Justice to be appointed by a judge.

Capacity assessors set their own fees, and in most cases the person who asked for the assessment pays. Which route suits your family depends on the facts, so a lawyer can help you choose.