Loss of Capacity With No Power of Attorney in Newfoundland and Labrador

A relative who can no longer manage their money creates urgent practical problems: bills, accounts, property and care costs. If they never signed an enduring power of attorney, you cannot simply rely on a document that gives someone authority.

This article explains the main options in Newfoundland and Labrador, including a court-appointed guardian and the role of the Public Trustee, and how health care decisions are handled separately.

This article covers the law of Newfoundland and Labrador.

What an enduring power of attorney would have done

An enduring power of attorney is a power of attorney that the donor signs, that a qualifying witness countersigns, and that can be used during the donor's legal incapacity. A power meant to apply during incapacity is not ended only because of the donor's later incapacity.

If no such document exists, and the person can no longer make one, the route is usually through the court.

Asking the court for a guardian of the estate

Under the Mentally Disabled Persons' Estates Act, the court may appoint a guardian of the estate for a mentally disabled person. The court may also declare a person incapable of managing his or her affairs because of mental infirmity from disease, age, habitual drunkenness, drug use or other cause.

The court decides. An applicant can be an interested person, a claimant, or the person responsible for the person's care. Because capacity is a legal and medical question, expect to need supporting evidence, and ask a lawyer how to prepare it.

After a guardianship order and the Public Trustee's role

• The guardian must file an inventory within 6 months and account.
• A new guardian may be appointed for good cause.
• On discharge, the property is revested.
• The Public Trustee manages finances only and does not generally make medical decisions.
• If the court finds the person has regained capacity, the assets are returned.

For small amounts, the court can authorize disposal of an incapable person's personal estate or insurance money of $2,000 or less.

Health care decisions are separate

The Advance Health Care Directives Act applies where a person has made a health care directive, which must be written, signed and witnessed by at least 2 independent persons. Under that Act, a person 16 or older is presumed competent. The doctor of the person who made the directive makes and records a finding of incompetence, and a second doctor chosen by that person prevails if that doctor finds the person competent. Challenges go to the Trial Division within 30 days.

Without an appointed substitute, the decision maker is chosen from a list starting with the spouse, then children, parents, siblings and other relatives, ending with the responsible health care professional; each must be at least 19. Involuntary admission for mental health care follows a different process, with certificates from physicians and review by the Mental Health Care and Treatment Review Board.

What to do next

• Check carefully whether any enduring power of attorney or directive was signed.
• Collect a list of the person's income, accounts, property and debts.
• Ask the person's doctor about the medical picture.
• Speak with a lawyer about applying for guardianship of the estate.
• Do not move the person's money into your own name without authority.

Frequently asked questions