What happens if I — or a family member — lose capacity?

Ontario uses two separate documents, not one all-purpose form. A continuing power of attorney for property lets the person you name (your attorney) manage your finances — banking, paying bills, running investments, even operating a business — almost anything you could do yourself with your property, except make or change a will. It's called "continuing" because, unlike an ordinary power of attorney, it keeps working even after you become mentally incapable, which is usually the whole point of having one.

A power of attorney for personal care lets your attorney make decisions about your health care, nutrition, shelter, clothing, hygiene and safety once you can no longer make them yourself. The two documents can name the same person or different people, and Ontario doesn't combine them into a single form. Most people sign both alongside a will, so the years before death — illness, injury or age-related decline — are covered as well as the estate after it.

Capacity isn't all-or-nothing, and Ontario law tests it separately for each kind of decision. You're incapable of managing property if you can't understand information relevant to a decision about your property, or can't appreciate the reasonably foreseeable consequences of making the decision or not making it. The test for personal care asks the same two questions about your health care, nutrition, shelter, clothing, hygiene or safety.

Adults are presumed capable unless there are reasonable grounds to think otherwise — a diagnosis like dementia doesn't, by itself, mean someone has lost capacity; it depends on whether they can still understand and weigh the decision in front of them. A formal capacity assessment, done by a qualified assessor, is one way to test this — often needed to activate a power of attorney that only takes effect on incapacity, or to support a guardianship application where none exists. Capacity can also come and go between areas: someone incapable of managing property can still be capable of personal care decisions, and vice versa.

An attorney for property is a fiduciary, held to that standard directly under the Substitute Decisions Act, not the Trustee Act, which doesn't apply to a guardian or attorney acting under this Act. An unpaid attorney must manage the property with the care an ordinarily prudent person would use for their own affairs; a paid attorney must meet the higher standard expected of someone in the business of managing others' property.

An attorney for personal care must follow any wish the person expressed while capable, or otherwise act in their best interests — considering known values and beliefs, consulting family and friends in regular contact with them, and choosing the least restrictive option available. Neither kind of attorney can make a will on the person's behalf, and neither can act once the document is properly revoked. An attorney who mismanages the role — spending for themselves, ignoring wishes, refusing to account — can be removed and is personally liable, the same exposure a court-appointed guardian faces.

Without a power of attorney for property, no one automatically steps in — a family member has to apply to the court to be appointed guardian of property, or the Public Guardian and Trustee may become the statutory guardian instead, both slower and more public than acting under a document signed in advance. Without a power of attorney for personal care, the court can appoint a guardian of the person where someone is incapable of personal care and needs decisions made for them.

A guardianship application requires evidence of incapacity, notice to the person and their relatives, and ongoing court supervision once it's granted — including, for a property guardian, keeping accounts and sometimes a court-approved management plan. A court can also grant full or only partial guardianship, tailored to what the person can and can't still decide for themselves. The Public Guardian and Trustee generally acts only where no family member or friend is available and willing — it is a last resort, not a default.

Choose someone you trust to act honestly and follow your wishes — an attorney for property should also be comfortable with paperwork and financial decisions, since the role can mean years of bill-paying, tax filing and investment decisions with no one checking the work day to day. You can name substitute or joint attorneys, and require joint attorneys to act together or allow either to act alone.

Write down anything that matters to you: how you want your finances handled, or your wishes about care and where you'd want to live — an attorney must follow a known wish, so putting it in writing, not just discussing it once, is what actually reaches them later. A continuing power of attorney for property can take effect immediately or only once you become incapable; one for personal care generally only takes effect once you're found incapable of personal care. Either can be revoked later, as long as you're still capable of making a new one.