- The capacity-assessment route to Public Guardian and Trustee guardianship is meant for people who have no continuing power of attorney covering all of their property.
- A person who wants to manage an incapable person's property can apply to the Ontario Superior Court of Justice to be appointed guardian of property.
- If the person has died, an estate trustee need not pass accounts unless the court compels it at the request of someone with an interest, such as a beneficiary or creditor.
An attorney for property is someone a person has chosen to manage their money if they cannot. It is a position of trust, and when a relative sees unexplained withdrawals, missing statements or sudden changes in how money is used, it is natural to worry.
Challenging an attorney is rarely a single step. Which route fits depends on whether the person is still alive, whether they are capable, and what the power of attorney document actually says. This article explains the options that are connected to guardianship and estates, and where you will want a lawyer to confirm the details.
Start with what you can document
Before any formal step, get clear on what you actually know. Concerns that are written down and supported by records are much easier for a lawyer, a bank or a court to act on than general suspicion.
- A copy of the power of attorney document, if you can get one
- Bank, investment and pension statements showing unusual transactions
- Dates and notes of conversations about money with the attorney
- Changes to the person's living arrangements, bills or property
- Names of other relatives and professionals who have concerns or information
Whether you can demand accounts from an attorney, and on what terms, depends on the document and the facts. A lawyer can confirm what applies to your situation.
Why the capacity assessment route may not fit
Any person may ask a capacity assessor to assess another person's capacity to manage property. The purpose is to decide whether the Public Guardian and Trustee should become that person's statutory guardian of property. If the assessor issues a certificate of incapacity, the Public Guardian and Trustee becomes the statutory guardian.
This route is not designed for a situation where a working power of attorney already exists. The request must be on the prescribed form (Form 4 under O. Reg. 26/95), and the requester must state that they know of no attorney under a continuing power of attorney who has authority over all of the person's property. The route is meant for people who have no continuing power of attorney covering all of their property.
If an assessment does go ahead, the person found incapable must be told they can apply to the Consent and Capacity Board for a review of the finding. In most cases the person who asked for the assessment pays the assessor, who sets their own fees.
Applying to court to manage the property
Instead of relying on the Public Guardian and Trustee, a person can apply to the Ontario Superior Court of Justice to be appointed guardian of property by a judge. This is the court route for someone who is not a spouse, partner or relative, or who simply prefers it.
A guardian of property is a fiduciary and must carry out their powers and duties diligently. How a court guardianship application interacts with an existing power of attorney depends on the facts, so ask a lawyer before choosing this path.
If the person has died
After a death, the person handling the estate is the estate trustee, a different role from an attorney. No Ontario law requires an estate trustee to pass accounts at fixed intervals, and they need not pass accounts unless the court compels it at the request of a person with an interest, such as a beneficiary or creditor.
When accounts are passed, the judge may make a full inquiry into the whole estate and look into complaints of misconduct, neglect or default. The Superior Court of Justice may also remove a personal representative and appoint someone else. Money that was managed under a power of attorney before death may come up in that process, and a lawyer can advise how.
What to do next
- Collect and organize the records listed above
- Find out whether a power of attorney exists and what property it covers
- Raise your concern with other family members, if it is safe and sensible to do so
- Speak with a lawyer about demanding accounts, a court application or a capacity assessment
- Contact the bank or institution if you believe money is at immediate risk, and keep a record of what you say
Frequently asked questions
Can anyone ask for a capacity assessment?
Any person may ask a capacity assessor to assess another person's capacity to manage property. 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.
What happens if someone is found incapable?
If the assessor issues a certificate of incapacity, the Public Guardian and Trustee becomes the person's statutory guardian of property. The person must be told they can apply to the Consent and Capacity Board for a review.
Who pays for a capacity assessment?
Assessors set their own fees, and in most cases the person who asked for the assessment pays.
Can I go to court instead?
A person can apply to the Ontario Superior Court of Justice to be appointed guardian of property. Whether that suits your situation, especially where a power of attorney exists, is worth confirming with a lawyer.
Sources
- Substitute Decisions Act, 1992 (e-Laws) — Ontario e-Laws
- Ontario.ca – Mental capacity — ontario.ca
- Ontario.ca – Guardianship — ontario.ca
- Ontario Court Forms – Form 74.11 (archive) — ontariocourtforms.on.ca
- Court of Appeal for Ontario – Wall v. Shaw, 2018 ONCA 929 — ontariocourts.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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