Social Worker’s Note: Power of Attorney for Property / Guardian of Property

Written by Chie Takano Reeves (Community Outreach Worker)

Question:

I am a resident of Ontario. I have not appointed anyone as my power of attorney (POA). What would happen when I become incapable of managing my finances?

Answer:

When you are capable of appointing someone to look after your property (power of attorney for property), you can discuss with a potential candidate to become one. Although often people choose their family member, relative or friend to be their POA candidate, some may request a lawyer or his or her financial institution to assume this responsibility. Your POA should be a person/institution who you can trust to respect your wishes.

When you become incapable of this action, a guardian of property can be appointed to manage your finance (no longer called POA for property in this case) by the Office of the Public Guardian and Trustee (OPGT) or the court. A family member, relative, friend or anyone around you may apply to be your guardian; or they may request OPGT to assign their worker to become one (If your income is only from the government benefits such as Old Age Security, Canada Pension Plan, and Ontario Disability Support, a “trustee” can be appointed to manage this income). Your guardian of property is entitled to charge you; the law sets out the specific calculation for the fee (see the link here).

To request OPGT to be your guardian (i.e. statutory guardianship), anyone around you who concerns about your ability to manage your finances, can request a “capacity assessor” (specially trained professional in assessing mental capacity) to assess you. If you are assessed as incapable, OPGT will become your guardian. If anyone (age 18+) around you would like to assume the guardianship, they can apply to be your guardian of property after OPGT comes in.

You can obtain the list of the capacity assessor by contacting the Capacity Assessment Office at 416-327-6766 | TTY 416-327-6766 | Toll-free 1-800-366-0335. Please note that anyone who requests a capacity assessor will have to pay the necessary fee. The assessment fee varies with different capacity assessors.

Whether a POA or guardianship you will have, it is always good to have your wishes regarding to your finances and health/personal care to be written down and signed while you can do so. It is difficult for anyone to just assume what your wishes were unless you communicate with them about it.

*When are individuals considered to be mentally incapable of managing property?

People are mentally incapable of managing property if they cannot understand the relevant information or appreciate what may happen as a result of decisions they make, or do not make, about their finances.

[…] The person who is found to be incapable has the right to have the finding independently reviewed at a hearing by the Consent and Capacity Board.

(from Becoming a guardian of property, by Ministry of Attorney General, 2015)

For more details:

Office of Public Guardian and Trustee (OPGT)

595 Bay Street, Suite 800, Toronto, ON, M4G 2M6

Tel: 416-327-6683

Toll-free: 1-800-366-0335

Capacity Assessment Office

Phone: 416-327-6766

TTY: 416-327-6766

Toll-free: 1-800-366-0335

< Disclaimer >

This is general information about power of attorney and guardianship of Ontario and not suitable for getting legal advice for your own particular situation. As laws dealing with Powers of Attorney and guardianship are specific to each province and territory, it is important to understand the laws where you live before making any decisions.

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