Parent Has No Power of Attorney and Is Incapable in Ontario

When a parent develops dementia or another illness that affects judgment, families often discover that no one has legal authority to manage the money. Bills go unpaid, accounts cannot be accessed, and the bank will not talk to you. If your parent never signed a power of attorney, the situation feels stuck.

There is a route through it. This article explains how to check whether a power of attorney already exists, how capacity is judged, and how a court-appointed guardian of property works. It is general information and not a substitute for advice on your family's facts.

First, make sure there really is no power of attorney

Before anything else, search for a signed document. A continuing power of attorney is one that says the authority can be used during the grantor's incapacity to manage property, and it is valid if the grantor was capable of giving it when it was signed.

• An attorney under a property power of attorney can generally start making decisions immediately unless the document says otherwise.
• A continuing power of attorney may say it takes effect on a set date or when a specified event happens.
• If it takes effect on incapacity but gives no method to decide that, it takes effect when the attorney is notified in the prescribed form by an assessor that the grantor is incapable, or that a certificate of incapacity has been issued.

Ask your parent's lawyer, bank, accountant and relatives. The wording of the document controls when it can be used, so have it reviewed.

What does incapable mean?

In Ontario, a person is incapable of managing property if they cannot understand information relevant to decisions about their property, or cannot appreciate the reasonably foreseeable consequences of a decision or of no decision.

Capacity assessors are trained health professionals, such as doctors, nurses, psychologists, social workers and occupational therapists. An assessment cannot be done if the person refuses, unless a court orders it. Usually the person who asked for the assessment pays the assessor.

A diagnosis alone does not settle the question. What matters is how your parent can handle the specific decisions in front of them.

Applying to court for a guardian of property

If there is no power of attorney, the court may appoint a guardian of property for an incapable person. In Ontario, this can be done on anyone's application. A child is a common applicant, but the application is not limited to family.

If a continuing power of attorney does exist and a guardian is appointed, the appointment ends the power of attorney. That is another reason to check for a document before applying.

The details of the application, such as the evidence required, what notice your parent receives, and who is considered for the role, are not covered here. They depend on the facts, so a lawyer can explain what applies.

What a guardian must do

A guardian has serious duties. The guardian's duties also apply to an attorney under a continuing power of attorney when the grantor is incapable. These include acting as a fiduciary diligently, honestly and in good faith, keeping accounts, and being liable for damages for breach of duty.

The court may order an attorney to pass all or part of their accounts, on application by the attorney, the grantor, certain listed persons (including a dependant of the grantor and the Public Guardian and Trustee) or others with leave. Keep every receipt and record from the start, whatever role you end up in.

When you are worried about harm now

The Public Guardian and Trustee must investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur. Serious adverse effects include loss of a significant part of the person's property. The investigations line is 1-800-891-0504.

There are limits. The office may investigate only if no alternative solution can be found, and it has no authority to make decisions for the person during an investigation or while the matter is before the courts.

What to do next

• Search for any signed power of attorney and a will, and note where original documents are kept.
• List your parent's accounts, bills, income and property, and any urgent payments.
• Talk with your parent's doctor about how to arrange a capacity assessment.
• Speak with the other family members so that the application is not a surprise.
• Keep records and avoid moving money for your parent until you have confirmed your authority.
• Consult an Ontario lawyer about a guardianship application and about personal care decisions, which are a separate question.

Frequently asked questions