Can a power of attorney for personal care be made after someone has lost capacity in Ontario?

To create a valid power of attorney for personal care in Ontario, you must have the mental capacity to make the document at the time you sign it. If a person has already lost the capacity to understand what the document is and what it does, they cannot legally create a new power of attorney for personal care.

Capacity can fluctuate, and someone with early-stage dementia or another progressive condition may still have periods of sufficient capacity to create or update their documents. Whether capacity exists is a factual question that must be evaluated at the time of signing. In cases where there is any doubt, a formal capacity assessment from a qualified assessor can document that capacity was present at the time of execution.

If a person has already lost capacity and has no power of attorney for personal care, the substitute decision-maker hierarchy under the Health Care Consent Act applies. The appropriate person from that hierarchy — starting with a court-appointed guardian of the person, then a spouse, then other relatives — will make personal care decisions going forward.

If no one in the hierarchy is available or willing, or if there is a dispute, the Consent and Capacity Board or a court may need to be involved. This underscores why creating a power of attorney early — while capacity is clearly present and there is no urgency — is strongly recommended.